1. The Appeals No. E/56 to 59/04, filed by an assessee and their Directors and officers against order dated 30-9-2003 of CCE against order dated 30-9-2003 of CCE-Mumbai V and Appeal No. E/1823/01 with cross-objection E/CO/148/01, filed by Revenue and the assessee, against order of Commissioner (Appeals) No. ZBN/82/MV/2001, dated 5-3-01. They pertain to determination of assessable values. They are being disposed off by this common order, after hearing both sides.
1.2 Assessee is engaged, since March, 1996, in manufacture of excisable goods, viz Compact Disc (hereinafter referred to as CD for short), the process is, actually duplicating and recording the CD for and on behalf of Music Companies from a stamper made from master known as DAT, supplied by the Music Companies. The valuation of these CD's, so duplicated, were questioned on the grounds that various costs i.e. of copyright of DAT master, positive art work, inlay costs, jewel box for packing, supplied by the music companies, were not included in working out the valuation of the CD's to determine the duty to be paid on the CD's cleared by the assessee.
1.3 Appeal No. 1832/01 and Cross-objection No. CO/148/01, filed by revenue and the assessee pertain to seven show cause notice as follows :______________________________________________________________________________________________ SCN DT PERIOD______________________________________________________________________________________________ (i) 2-4-1997 Sept 97 to Feb 98 (ii) 16-7-98 March 98 to June 98(iii) 14-10-98 July 98 to Sept 98(iv) 15-3-98 Oct 98 to Sept 99(v) 19-8-98 Mar 99 to July 99(vi) 13-1-00 August 99 to Dec 99(vii) 23-5-00 Jan 00 to April 00 issued by the Range Superintendent and decided by the Commissioner (Appeal) in Assessee's favour. The Deputy Commissioner had adjudicated these notices and by a common order dated 21-7-00 and on finding as follows as regards the valuation of the CD's : ... sold in the wholesale market by Music companies at very high prices and since the wholesale price is known to music companies at the time and place of clearance, the manufacturer in this case M/s.
Jet Speed Audio Pvt. Ltd., should have obtained the wholesale price from music companies and paid the duty accordingly....
and on finding that they have not given true and correct declaration and after ruling out the application of the Apex Court decision in the case of Ujagar Prints and also the Tribunal decision in the case of Ulhas Electronics (P) Ltd. by holding them not to be applicable in the facts of this case held as follows : ... Now coming to the cost of such DAT the assessee has not submitted the cost of such DAT, nor they have produced any document of Music companies to arrive at the value of such DATs. They stated that the A.C. Dn VII has ascertained the cost of master/DAT and other etc. as Rs. 3/- and they have accepted and also paid the Govt.
dues under KVS5 1998. Here I would like to state that the A.C. Divn.
VIIs order was for recorded audio cassettes, whereas the present case is of CDs which is completely different. The wholesale price of recorded audio cassettes ranges from Rs. 18/- on-wards whereas the wholesale price of CDs ranges from Rs. 200/- onwards. However the deptt. has held the price of Rs. 140/- based on the price declared by M/s. Zee Music (Music Company) on CDs manufactured by M/s. Jet Speed Audio Pvt. Ltd. & M/s. Zee Music has paid the diff. duty on the CDs manufactured by M/s. Jet Speed Audio (P) Ltd. Hence the assessable value based on 140/- in the present proceedings appear to be reasonable rational, legal and proper in terms of Section 4 of CEA, 1944 read with C. Ex. (Valuation) Rules, 1975. Accordingly diff. duty demand is correctly determined and said SCNs....
(b) These notices, on a perusal, reveal that they have been issued based on Annexure 'A' enclosed thereto which reads as follows : (one sample recorded) M/s Jet Speed Audio (P) Ltd., (hereinafter referred to as the "assessee") having factory at 7, Udyog Nagar, Goregaon (W), Mumbai-400062, are engaged in the activity of compact disc (CD) falling under Chapter 85 of CETA. The assessee is declaring the assessable value of the goods manufactured by them in their clearance documents viz Invoices issued under Rule 52A, as required under Rule 173C. Now on inquiry, it is revealed that the price charged by the assessee to their customers is not proper and full price which can be taken as the assessable value since it does not take into consideration the various costs of manufacture which goes into the manufacture of the CD. It is revealed that the assessee is merely engaged in the activity of duplicating of CDs from the master for and on behalf of various music companies/parties. The said music companies got the CDs pre-recorded from the assessee. The said music companies own the copy right of the music titles recorded on the CDs and the assessee was not authorised to sell the pre-recorded CDs manufactured for and on behalf of the music companies, in the market in the course of wholesale trade since the assessee did not own the copyright in respect of the music pre-recorded on CDs, the assessee was required to supply the entire quantity of the pre-recorded CDs to the music companies.
It is also revealed that to manufacture the pre-recorded CDs stamper (CD master is required without which the pre-recorded CDs cannot be manufactured. These CDs have been got manufactured by the assessee from abroad by exporting DAT master cost of which was separately recovered by the assessee from the customer by way of issue of debit notes and the value of which was not included in the assessable value declared by the assessee.
The music companies referred above were buying music copyright from the film producers and artists under Copyright Act, 1957 and after transferring the music on Digital Audio Tape (DAT) in the recording studio, the same were supplied to assessee free of cost for making CD stamper.
It was also observed that handsome amount of money was paid to producers and artists (singers) to buy copyrights of the music. The copyright purchase agreements were made between film producers, artists and music companies under which the music companies either buy the copyrights on outright basis or obtain right to use the same on payment of royalties on payment of handsome amount and same was not transferable without the consent of music companies. This music was subsequently transferred on DAT masters and stampers for manufacturing pre-recorded (CD)s cost of which is a part of manufacturing costs and the same were not taken in consideration while arriving at the assessable value under Section 4 of the Act as declared by the assessee on their invoices as required under Rule 173C. Further it is revealed that the music companies have also supplied positive art work, containing the contents recorded on CDs including the names of the music directors, copyright owners, singers and artists, price etc., free of cost for screen printing on body of CDs so as to make CDs marketable, without the screen printing on the prerecorded CDs, the same cannot be sold in the course of wholesale trade. It is revealed that for each title of CD a "Positive art work" is required. Whenever any correction in the positive art work is required the cost of the same was separately recovered from the music companies by the assessee. The costs of the positive art work and the correction charges have not been taken into consideration in the assessable value declared on the invoices by the assessee.
It is revealed that the assessee is accepting the deposits/advances from the music companies/party to carry out the activity of duplicating the music on CDs. Thus it is seen that the necessary basic inputs to manufacture CDs and to make the same marketable like copyrights of the music, inlay cards, DAT masters, stampers, positive art work etc. were supplied by the music companies to the assessee free of costs on the value of the same was not included in the assessable value as declared by the assessee on their invoices.
On further enquiry it is also revealed that there is a vast difference between the assessable value of the goods as declared by the assessee on their invoices and the price of the goods in the course of wholesale traded. This is mainly due to the various costs, like cost of copyright, costs of DAT master, positive art work inlay costs etc. which were not taken into consideration and not included in the assessable value declared by the assessee on their invoices.
The said cost are part of the cost of manufacture of the CDs and which goes to make the CDs marketable and hence the same were liable to be taken into consideration while arriving at the assessable value under the provision of Section 4 of the Act read with the Central Excise (Valuation) Rules, 1975.
Thus, the assessable value declared by the assessee on their invoices is not the full value of the excisable goods since the value referred to in the Section 4 of the Act is the intrinsic value of the goods which will include all the costs incurred to make excisable goods marketable. Since the value declared by the assessee on the basis of duplicating charges charged by the assessee does not represent the full value the provisions of Sub-section (1) of the Section 4 of the Act could not apply in the present case and the assessable value has to be determined with reference to Sub-section (2) of Section 4 of the Act read with the Central Excise (Valuation) Rules, 1975. Since the goods are sold by the music companies in the course of wholesale trade and since the price at which the goods are sold by the music companies in the course of wholesales trade is available, for the purpose of the Section 4 read with the Valuation Rules, such prices charged by the music companies in the course of wholesale trade shall be the assessable value of the pre-recorded CDs removed by the assessee, as per Annexure B to this SCN and the investigation report in respect of M/s. Jet Speed Audio (P) Ltd. at the office of C. Ex. (Preventive), Mumbai IV Copies enclosed.
(c) It is an admitted fact that the CDs were made from stampers and the allegation is that these stampers were got made abroad from DAT supplied free and recovery of stamper costs was separately made.
Since DAT is not, admittedly directly used it is the value/cost of stamper which has to be amortised and not the value/cost/copyright expenses procurement on DAT which are being proposed to be added.
The Commissioner (Appeals), vide the order impugned after considering the decision of the Apex Court in the case of Ujagar Prints and the clarificatory orders and the Boards instructions and clarifications issued vide No. 24-14-93, dated 31-12-1993 (F. No. 6/25/9-CX.1), held as follows : 9. I find that the lower authority has not properly appreciated the aforesaid submissions and hence has erroneously held that the cost of royalty/copyright, the cost of DAT master, stampers, cost of positive art work etc. should be included in the assessable value and duty should be levied on the wholesale price sold by the music companies. I find this view is not in keeping with the provisions of Section 4(1)(a) which indeed is applicable in the applicants case here and I find that there is no need to go to Section 4(2)(b).
Manufacture of the CDs in question is said to be completed at the jobs workers factory (here the appellant) and the relationship between them is obviously that of one principal to another principal and not principal to agent. The ratio of the Supreme Courts judgment in the case of M/s, Ujagar Prints would therefore come into forgoing in this case besides the ratio of Apex Court in the case of Pawn Biscuits v. CCE as also ratio of the Tribunal in the case of Dr. Writers Foods Products ltd. v. CCE 1998 (78) ECR 430 (TRB) wherein it was held that the agreement between the job worker and supplier of raw materials is not between the principal and an agent but on principal to principal basis. If one were to go further with the logic and interpretation adopted by the lower authority, in that case, conversely, music companies will have to be treated as the manufacturers for levy of duty. This is obviously not contemplated in the Central Excise Licensing nor it is assumed in the valuation in terms of Section 4 ibid. It is to be noted that the music companies do not hold a manufacturing licence from the Central Excise department and are not the processors, their dealings with the job workers has to be on principal to principal basis asking for a number of CDs made on the specifications and the DAT master provided by them. In this view of the matter, I find the lower authority's decision is not in keeping with the judgment of Supreme Courts ruling in the case of M/s, Ujagar Prints as it overlooks certain basic facts in favour of the appellant herein.
(c) Revenue is aggrieved by this findings of the Commissioner (Appeals) and has filed this appeal, numbered as E/1823/01 and the Assessee has filed cross-objections No. E/CO/148/01-Mum, considering the charges, as made out in the SCN and the Apex Court decisions as regards valuation in the case of job work, as in this case, we find no reason to approve the finding of the lower authority as regards taking the sale price of M/s. Zee Music (Music Company). The mandate of the Constitutional Bench of the Apex Court in the case of Ujagar Prints is very clear and explicit. The traders (merchants) sale price can never be the valuation, for goods manufactured on job work. That mandate prohibits the adoption of the valuation, as per the purchase price of M/s. Zee Music (Music Company) as being proposed by Revenue in this case. The goods by their very nature cannot be comparable goods since the intellectual contribution of Music Director, Singers and/or other Artists cannot be valued, as comparable, with the costs/valuation for another song and music composition and/or film by another set of artists. The goods, for adopting comparable prices, have first to be comparable. There is no reason, brought out, to conclude that the goods in the case of Zee Music have the same Intellectual Property Cost content, as in the case of other Music Companies. The order of the Deputy Commissioner, not only has traversed beyond the charges as made out in the show cause notice which were to effect valuation on cost constitution method as per Ujagar Prints formula and therefore cannot be upheld, but also the order is in violation of the law as laid down by the Apex Court and the Boards instructions on valuation of goods manufactured on job work, which undoubtedly in this case are applicable. We therefore find no merits in the grounds as taken in this appeal filed by Revenue. The same is therefore required to be dismissed. The cross-objections filed would stands disposed accordingly.
2.1 Appeal Nos. E/56 to E/59/04 have been filed by the Assessee and their Directors and Executive against an Order-in-Original Nos.
32/Commr/V/2003, dated 23-9-2003, 373 to 379/DC/Malad/2000, dated 21-7-00 passed by the Commissioner of Central Excise, Mumbai IV has been passed confirming the demands vide the following SCNs :______________________________________________________________________________________________ SCN DATE PERIOD______________________________________________________________________________________________ 3-8-2001 July 1996 to Aug 1997 4-6-2001 May 2000 to June 2000 2-7-2002 June 2001 2-8-2002 July 2001 to December 2001 The Commissioner also imposed penalties not only on the Assessee but also on the following Directors and officers of the Assessee under Rule 209A : 2.2 (a) Show Cause Notice was issued on 3-8-2001 to the Assessee and its Director and Manager demanding duty (or the period July, 1996 to December, 2001 invoking the proviso to Section 11A(1), consequent to a visit of the officers of Bombay I Commissionerate, in June, 1997 to the appellants premises during which they noticed that the assessee had been under valuing their CDs and were not taking into the account the costs of DATs/stamper, royalty paid by music companies to the artists for obtaining title rights, inlay cards, jewel box, positive printing art work etc. The officers also observed that M/s. Zee Music Company, to whom such supplies were made by the assessee had agreed to pay the duty at the correct assessable value of Rs. 140/- per CD. The enquiries were made and the notice issued alleging as, it appears from Annexure 'A' to this notice as below : Thus, the assessable value declared by the assessee on their invoices is not the full value of the excisable goods since the value referred to in Section 4 of the Act is the intrinsic value of goods which will include all the costs incurred to make excisable goods marketable. Since the value declared by the assessee on the basis of duplicating charges charged by the assessee does not represent the full value, in the same that it does not admittedly include cost of all the inputs/components that have gone into making goods marketable the provisions of Sub-section (1)(a) of Section 4 of the Act would not apply in the present case and the assessable value has to be determined with reference to Sub-section l(b) of Section 4 of C. Ex. Act, 1944 read with C. Ex. (Valuation) Rules, 1975. The assessee has not only did not disclosed full and true assessable value of the goods to the department, it also never chose to inform the department that it was declaring only a part of the cost of the inputs as assessable value of the final goods and paying duty their own. Full facts of the case vital to determine proper assessable value of the goods were never brought to the notice of the department. The assessee has not been able to furnish the details of cost of all inputs/components which have gone into the goods to make the same marketable, the department has therefore necessarily to resort to ascertain the prices of comparable goods to determine the assessable value. It has been ascertained that the assessee is not selling any of their products in the market. They are manufacturing these CDs as a job work only against a specific contract received from a particular music company, who supplies a number of input like DAT, stamper, jewel box, inlay cards, positive printing art work etc. free of cost to the assessee and all the goods manufactured have necessarily to be send back to the music company. Therefore the goods in question enter the chain of wholesale trade for the first time only when these are sold by the music company to their wholesale dealers. Since the goods are sold by the music companies in the course of wholesale trade and the price at which the goods are sold by the music companies in the course of wholesale trade is available for the purpose of Section 4 read with C. Ex, (Valuation) Rules, 1975 as such prices charged by the music companies in the course of wholesale trade shall be assessable value of the pre-recorded CDs cleared by the assessee.
Since the detailed information regarding the cost of inputs have not been supplied by M/s. Jet Speed, it appears proper as per best judgment method to accept the comparable price of Rs. 140/- per CD, which has been accepted by M/s. Zee Music for the CDs cleared by M/s. jet Speed. Applying this value it appears that during the period from July' 96 to August' 97 M/s. Jet Speed have under-valued their goods and short-paid the duty of Rs. 3,84,25,931/- as detailed in the show cause notice.
(b) After receipt of the written submissions due to the issue of Boards instructions vide Circular No. 619/10/2002-CX [F. No. 6/47/2001 (CX 1)], dated 19-2-2002 and on alleged non-cooperation of the assessee as regards submission of the details of Royalty received, requantification of royalties were arrived at by the Divisional Deputy Commissioner and the duty demands were re-worked out.
(c) Thereafter a hearing was held on 16-3-2003. The Commissioner also took up the decision of the other 3 show cause notices dated 4-8-2001, for the period May, 2000 to June, 2000; dated 2-7-2000 for the period June, 2000 and dated 2-8-2000 for the period July' 2001 to Dec.' 2001.
These notices were issued demanding duty on the grounds that the Appellants have failed to furnish details of the various costs of inputs and/or clearance as per the clearance documents and invoices, therefore proposal was made to apply the comparable price of Rs. 140/-per CD which was accepted by M/s. Zee Music Company.
(d) The Commissioner did not uphold the pleas on bar of limitation, the proposed valuation as per comparable price of M/s. Zee Music Ltd. to be not applicable and also that the Boards circular will not be retrospective in operation confirmed the duty demands imposed penalties.
2.3 After hearing both sides and considering the material it is found that: (a) the Appellants has a very good case as regards bar of limitation to be acting in their favour as regards notice dated 3-8-2001. It is on record that the Assessee had filed declaration giving full details and on specific insistence of the department, as regards the inclusion of cost of DAT, inlay cards and printing positives works supplied by their customers, had informed vide their letter dated 14-10-97 and 1-12-97 that they will include such cost under protest.
This would indicate that the Assessee was including the costings as per their understanding of the law as regards the quantum of such costs required to be included under the provisions of Central Excise Law. It is settled law by the judgment of the Apex Court in case of Hyderabad Polymers Pvt. Ltd. v. CCC 2004 (1.66) E.L.T. 151 (SC) wherein it was held that the extended period of limitation cannot be invoked, where show cause notices had been issued for the same subject matter at an earlier point of time. In this case we find that notices challenging the valuations were issued prior to and subsequent to the present notices dated 3-8-2001 and decision arrived at by adopting the valuation of M/s. Zee Music Company.
Following the settled position as per the Apex Court decisions in case ECE Industries Ltd. v. CCE and P & B Pharmaceuticals (P) Ltd. 2003 (153) E.L.T. 14 (SC), the invocation of the period under the proviso clause to Section 11A(1) cannot be upheld. (b) On the question of the proposal made in these notices to take the valuation of M/s. Zee Music Company i.e. at Rs. 140/- per CD, we have already come to a conclusion that keeping in mind the nature of the goods herein, as regards the cost component of intellectual property of the Music Directors. Singers and other Artist being different, no two CDs of different Music Companies, could be comparable goods. Therefore the proposal ab inito as made in the SCNs, to determine duty as per the accepted price by M/s. Zee Music Company at Rs. 140/- per CD, cannot be upheld and approved. Merely because M/s. Zee Music Company had agreed to pay duty @ Rs. 140/- per CD, that cannot be the assessable value under law. As the law does not prescribe the valuations to be arrived at as per Private treaties and agreements.
26. In the instant case the CDs were manufactured on job work basis against specific contract of a particular Music Company who supplied number of inputs.
(c) We have already found that valuation in this case has to be arrived at as per the orders of the CBEC, dated 31-12-1993 and Apex Courts decision in the case of Ujagar Prints and other case law on Job Work Valuation, which prescribe that price of a trader (music company in this case) cannot be accepted as valuation under Central Excise for job worked goods. Much less the sale price of a Trader of goods which cannot be comparable. We therefore cannot uphold the show cause notices duty demands on merits.
(d) We find that the Range officers did make an inquiry as regards the costing of DAT etc., and a show cause notice was issued to the assessee, wherein a similar issue was determined by the Deputy Commissioner incharge of the Division vide his order dated 19-1-99, wherein it was recorded as follows : The issue before me is as to whether the cost of DAT (Master Card) and inlay cards is includible in the A.V. of pre-recorded cassettes cleared by the assessee or otherwise. The Range Superintendent has raised the demand for the period May' 07 to Oct' 97 alleging that value of DAT and inlay cards on approximate value basis as the assessee has failed to furnish the same.
...In that case I am left with no option but to hold that the value which is declared and upon which C. Ex. duty was paid is not proper or the normal price. Now coming to cost of such DAT, inspite of repeated efforts by Range Superintendent, the assessee have failed to produce details of the value of such DATs, In that case Range Superintendent has conducted enquiry which revealed that cost of the varies from 30 paise to Re. 1.00 depending on party to party....
If the Range Superintendent could conduct inquiries and determine the amortised costs of DAT to be included which are not under challenge by Revenue, it is not understood, why the Commissioner's Hqrs. Preventive Officers after detailed Inquiries use of search and summon powers granted to these under law are pleading helplessness in obtaining the requisite information in conducting of their inquiries. The Commissioner in para 32 of the order impugned records the facts of the documents being recovered in a search conducted in the assessee's premises by the officers of Bombay C. Ex.-I Preventive Hqrs. The Commissioner has made efforts to locate these documents recovered from the assessee and in possession of the department but they could not be located. Thereafter a blame is being placed at the assessees door step, for supplying incomplete information, necessitating the Commissioner to arrive at a finding adverse to the assessee. Such a conduct requires to be condemned. We cannot accept the Assessee's to be charged with Revenue duty demands, after their documents are recovered and seized and taken away and misplaced by the department on the grounds that the assessee has failed to produce information. There is no finding that the assessee's plea of the documents being seized and taken away was incorrect. We cannot uphold the Commissioner's finding of putting the liability on the assessee to establish the valuation enhanced against him. The onus was always on the department, to get the document and conduct an unbiased inquiry, with the Music Companies and others, thereafter obtain requisite material to prove their case on under-valuation. They have failed in this respect. The assessee cannot be burdened with duty liabilities based on such failed, incomplete inquiry, especially when the assessee claims to have added the costs. We can not find the decision of Johnson & Johnson , as relied by the Commissioner on help the Revenues case herein, when whatever documents were with the assessees are found to have been submitted by them.
(e) It is found from a favorable order-in-appeal by Commissioner vide order No. 40/M-V/2002, dated 22-2-2002 in Appellants own case on the similar issue of valuation, during the very same period, that the Commissioner has recorded in paras 21 and 22 the following findings of facts: 21... This higher price of Rs. 7.50 was applied irrespective of the fact that different prices were charged for inlay cards which is factually true since there bulk sales were with lower price.
Therefore value addition pertaining to cost of inlay cards at the rate of Rs. 7.50 per disc was not only arbitary but also not on the basis of actuals. For example cost of inlay card charged from Bennet & Coleman Company was Rs. 7.50, for Living Media it was Rs. 6.50, for Virgin Records it was Rs. 5.83 and for other companies also it varied from Re. 1 to Rs. 7.50. Therefore to arrive at the additional value element on account of cost of inlay cards, the same should have been calculated on the basis of actual Shri Wani argued.
22. It is a fact that the appellants do not receive any jewel boxes from their customers which was purchased by the appellants and cost of jewel box is already included in the price. Despite this, Show Cause Notice seeks to add Rs. 6 per disc towards cost of jewel box in the value. The appellants have sold their goods with or without the jewel box as the same is not primary packing for the compact discs manufactured by the assessee....
In this view of finding of facts by Commissioner (Appeals) which has not been stated to be appealed against we are reinforced in our views that the goods i.e. recorded CDs cannot be comparable. If the cost of inlay cards differs the total costing for the CDs would be distinctly different. We also find the costing of inlay cards as taken by revenue in the impugned proceedings at Rs 7.50, uniformly, is factually incorrect. Notices and demands based on factually incorrect data cannot be upheld. From the facts as alleged in Annexure 'A' to 7 show cause notices it is apparent that DAT is not directly used by the Assessee in recording the CDs from DAT supplied, a stamper is made and the value/cost of such stamper is to be arrived at and amortised over its life period and the quantity of CDs actually manufactured. The Royalty allocation as made directly for DAT costings as made in this case cannot be accepted.
(f) The question of addition of Royalty costs was in disputed in the entire industry and a view was taken thereon vide a Boards letter dated 19-2-02. These instructions, prima facie, cannot be applied retrospectively more so when it appears that the said circular was issued in response to numerous representations received from the trade and the Excise Department that an appropriate method of valuation of goods manufactured on a job work basis should be articulated. It was only after the introduction of the said circular that a clear position was articulated as to how to arrive the assessable value of CD manufactured on job work basis. The said circular also for the first time in para 6 thereof articulated a formula on how to determine the assessable value of certain elements to be included in the assessable value, Such determinations, which were never before reflected in the Applicable provisions of Law would come into effect only from 19-2-02 and not prior thereto.
Therefore following the law as laid down in H.M. Bags Manufacturers v. CCE wherein the Apex Court has Ruled that such circulars issued by CBEC would be effective from the date of their issue only. The application of Boards, circular dated 19-2-02 for the notices impugned here cannot be applied.
(g) When the duty demands as arrived at not being upheld on grounds of time bar, merits as also quantum of calculations of costs there is no case or cause for imposition of any penalty on the assessee as well as the Directors and the other Appellants herein.
In view of the findings Appeal No. E/1823/01 is dismissed the CO No.148/01 stands disposed accordingly. Appeals Nos. E/56 to 59/94 are allowed after setting aside the other impugned order.