TaxTMI 
TaxTMI 
1998 (1) TMI 83
X X X X Extracts X X X X
X X X X Extracts X X X X
.... writ of certiorarified mandamus to call for the records on the file of the second respondent in C. No. V/6806/15/20/88 Order 42/88, dated 21-12-1988 and to quash the same. The case of the petitioner as can be gathered from the affidavit filed in support of the writ petition is that the petitioner is a public limited company registered under the Indian Companies Act, 1956. It has its factory at Padi, Madras-50. It is carrying on business in the manufacture of Brake Linings and Clutch Facings for Automotive and non-automotive parts having technical collaboration with Abex Corporation of U.S.A. The products manufactured by the petitioner company fall within the purview of the tariff entry Item 34A of the First Schedule to the Central Excises ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e based on the price at which the company sells the products to their wholesale dealers. The petitioner company has been charged duty accordingly. However, the first respondent by his order dated 28-7-1981 issued a show cause notice under Section 35A of the Act as to why the order of the second respondent should not be set aside and assessable value should not be approved in Part IV at the price at which the wholesale dealer deals the goods to their customers, i.e. less 25 per cent. The petitioner filed objections to the said notice on 21-8-1981 explaining how the petitioner company is selling the goods to all the dealers at common price and they were not concerned with the price at which the wholesale dealers were dealing in goods. The pet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Central Excise Department depending upon the outcome of the case. The fact of collection of such deposits from the dealers was also intimated by the petitioner to their jurisdictional Assistant Collector of Central Excise, Madras II Division stating that the deposit amount collected from the dealers would be paid to the Government or returned to the dealers on the basis of the outcome of the case. 3.In the year 1985, the petitioners started a second factory in T.S.K. Puram near Madurai in the jurisdiction of the second respondent, wherein the same goods i.e. brake linings were being manufactured. With effect from 28-2-1986, the first schedule to the Act was substituted by the Schedule to the Central Excise Tariff Act, 1985 and accord....
X X X X Extracts X X X X
X X X X Extracts X X X X
....entral Excise, Virudhunagar who had approved the price list. Under the circumstances, a show cause notice was issued on 16-9-1988 to the petitioner. The petitioner submitted his reply on various grounds. The second respondent by his order dated 21-12-1988 directed the petitioner to pay the entire sum of Rs. 13,25,616.59 collected as deposit on the ground that the amount of deposit collected is duty and is therefore, liable to pay the same to the Government. Under such circumstances the writ petition was filed for the reliefs as stated above directly in this Court although appeal provision was available to the petitioner since the order impugned in the writ petition was basically without jurisdiction and contrary to the order passed by this ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....value as deposit amount. The learned Counsel also made elaborate submissions referring to various provisions of the Act to say that powers were properly exercised under Section 11A of the Act. 7.On the other hand Shri C. Natarajan, learned Senior Counsel argued supporting the order under appeal. He submitted that Section 11A is not at all attracted to the facts of the present case as there was no short claim. In support of this submission he also placed reliance on few decisions. 8.We have considered the submissions made by the learned Counsel for the parties. 9.It is not disputed before us that the writ petitioner had filed W.P. No. 8026/82 on identical facts in regard to its Madras Unit which was allowed on 30-3-1990, as indicate....