TaxTMI 
TaxTMI 
1985 (3) TMI 66
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.... Shri R.S. Dhawan representing the Assistant Collector. They requested us to dispose of the matter finally at the admission stage itself and this is why we are proceeding to do so. BACKGROUND 2. The Glass Works has a factory at Bamrauli in the district of Allahabad wherein it manufactures articles like wind screens, door screens, back screens, etc., for motor vehicles and also mirrors. This is being done under a licence obtained by the Glass Works for its factory at Bamrauli. The case of the Glass Works is that normally it sells these goods to buyers in the course of wholesale trade at the factory premises at Bamrauli and also from its depots at various places in the country to which it transports its goods for sale from the factory. The wholesale prices at which sales are made at the factory premises differ widely from prices at which sales are made at various wholesale depots for a variety of reasons inherent in the nature of the articles which are manufactured and sold by the Glass Works. These goods are not excisable articles, but the dispute in that regard is not the subject matter of the present petition wherein the Glass Works has come to this court for redress on the ....
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....nbsp; * (b) where the normal price of such goods in not ascertainable for the reason that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. (2) Where, in relation to any excisable goods the price thereof delivery at the place of removal is not known and the value thereof is determined with reference to the price for delivery at a place other than the place of removal, the cost of transportation from the place of removal to the place of delivery shall be excluded from such price. (3) The provisions of this section shall not apply in respect of any excisable goods, for which a tariff value has been fixed under sub-section (2) of Section 3. (4) For the purpose of this section, - (a) * * * * (b) "place of removal" means - (i) a factory or any other place or premises of production or manufacture of the excisable goods; or (ii) a warehouse or any other place or premises wherein the excisable....
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....ct, 1944, and the Central Excise Rules, 1944" was to be dealt with. 5. Section 14 of the Act provides in sub-section (1) that : (1) Any Central Excise Officer duly empowered by the Central Government in this behalf shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any enquiry which such officer is making for any of the purposes of this Act. A summons to produce documents or other things may be for the production of certain specified document or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. 6. Rule 173(c)(9) of the Rules which enables the officer concerned (called the proper officer in the Rules) to require production etc. of documents or tender evidence says that : (9) The Proper Officer may, where he considers it necessary during the course of any enquiry in connection with a price list submitted by an assessee, - (a) require any person to produce or deliver any document or thing relevant to the enquiry; and (b) examine any person acquainted with the facts and circumsta....
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.... for any document which is not relevant to the inquiry. And, if it does, the person required to produce the document can very well approach the court for redress. 9. The stand of the Assistant Collector, vehemently put forward by Shri Dhawan before us, is that the Act provides an alternative forum to the Glass Works under Section 35 whereunder an appeal against the summons for production of documents could be taken to the Central Board of Excise and Customs which could go into the question of relevancy also. We have extracted the necessary part of Section 35 earlier which shows that an appeal lies only against "......any decision or order passed. ........... under this Act or the Rules made thereunder...." 10. That summons issued under Section 14 does not fall in the category of a decision is not in doubt and has not been characterised as such even by Shri Dhawan. What he, however, says is that it is an `order' passed by the Assistant Collector and is consequently appealable under Section 35. We have considered the submission with the seriousness it deserves, but we find it difficult to accept it. We find in Chapter VI, in which Section 35 occurs, a set of provisions relating....
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....o whom it is issued to appear to give evidence and/or produce some documents, etc. It is not an order in the sense that it decides any question or communicates a decision taken. It merely intimates the person concerned that he is required to appear before the named authority for giving evidence and/or to produce a document, etc. True it is that issuance of summons normally follows an order for such issuance by the authority concerned but that order is not a consequence of any determination of a question at issue nor is it in execution of any such determination. In the instant case, we have no doubt that the order which is made appealable under Section 35 does not embrace within its ambit an order for issuance of summons under Section 14. We, therefore, find it difficult to sustain the plea that the Glass Works had an alternative remedy under the Act which dis-entitled it from approaching this Court under Article 226 of the Constitution in the first instance. THE REAL QUESTION 13. Under Section 4, the value of the excisable goods for purposes of charging duty of excise is to be, where the case is covered by clause (a) of sub-section (1), the normal price thereof as mentioned i....
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....moval ..................." 14. These observations clearly imply that the scope of enquiry, where determination is to be made under Section 4(1)(a), continues to be different from the one where it is to be made under Section 4(1)(b). The material which may be required to be produced by an assessee for determination of the excisable value under the Rules of 1975, but is not relevant to an enquiry where determination is to be made under clause (a), cannot be required to be produced by him through the aid of summons under Section 14. The enquiry under clause (a) can only be in respect of the matters specifically mentioned in that clause and no other. Any document which is not relatable to the matter mentioned in clause (a) cannot be required to be produced for determination of the value under that clause and if a demand for production of material unrelated to the requirement of clause (a) is made, the authority making the demand can be restrained from doing so. 15. A copy of the summons under Section 14 in the present case is annexure "T" to the writ petition and it requires the Glass Works to produce the documents mentioned in the schedule to the summons which has been extracted....
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....ny case, was trying to fish out some material to do so. He invited our attention to Section 11-A which says,- "11-A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words "six months", the words "five years" were substituted. Explanation:- Where t....