TaxTMI 
TaxTMI 
1990 (11) TMI 166
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....y of the torches is made of aluminium. The petitioner says that while moulding and manufacturing the torches, certain quantity of scrap (cuttings) is obtained which is not useful for any purpose of the petitioner. The petitioner says that as and when sufficient quantity of scrap is collected in his premises, he sells it. There are persons known as 'Kabaris' who come and purchase the same. The petitioner says there is no fixed price for this scrap which is treated as 'waste'. The price depends upon negotiations that take place on each occasion. It is for this reason, the petitioner says, he could not file the price list for the approval of the authority concerned as required by the Central Excise Rules and was obliged to make an application ....
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.... discretion in the matter, the discretion has to be exercised having regard to the relevant circumstances and the order must show that the authority has applied his mind to the relevant circumstances. 5. Rule 173C obliges the manufacturer/producer to file price list of goods assessable ad valorem. Sub-rules (1) to (6) and (11) of Rule 173C are reproduced below:- (1) Every assessee who produces, manufactures or warehouses goods which are chargeable with duty at a rate dependent on the value of the goods, shall file with the proper officer a price list, in such form and in such manner and at such intervals as the Collector may require, showing the price of each of such goods and the trade discount, if any, allowed in respect thereof to ....
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.... In case of assessees the other than those specified in sub-rule (2), the duty payable on the goods shall be determined by the assessee himself on the basis of the price-list filed by him, subject to the provisions of sub-rule (6). (5) Subject to the provisions of Rule 173CC, an assessee specified in sub-rule (2) shall not clear any goods from a factory, warehouse or other approved place of storage unless the price-list has been approved by the proper officer. In case the proper officer is of the opinion that on account of any enquiry to be made in the matter or for any other reasons to be recorded in writing, there is likely to be delay in according approval, he shall either on a written request made by the assessee or of his own accord....
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....such goods allow an assessee or a class of assessees to declare the price of goods transacted by the said assessees for the particular wholesale consignment on the gate pass or accompanying challan or advice note and to determine the duty payable on such goods intended to be removed on the basis of the said declared price : Provided that where the price thus declared on the gate pass or accompanying challan or advice note does not represent the value as determined under Section 4 of the Act, the proper officer may, after such further inquiry, as he may consider necessary, reassess the duty due and thereupon the assessee shall pay the deficiency if any, by a debit in his account-current or in case of excess payment take credit of the amou....