Hcl Limited (Reprographics Division) and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
provisional assessment - central excise--excisable goods--removal--conditions as to--assessee manufacturing photo-copying machines, new excisable goods within meaning of rule 173cc--submitting classification list and price list showing value at rs. 27,083--assistant collector, while approving said list enhancing value and making endorsement as to approval being provisional under rule 9-b--writ petition by assessee--assessee to be permitted to remove goods on paying duty calculated on basis of value declared by it on execution of bond contemplated by proviso to rule 9-b--such duty to be deemed to be provisionally assessed duty under rule 9-b--central excise rules, 1944, rules 9-b, 173-cc--central excise valuation rules, 1975, rule 6, schedule.;the assessee was a manufacturer of photo-copying machines, which were new excisable goods within the meaning of clause (b) of rule 173-cc of the central excise rules, 1944. the assessee submitted a classification list and a price list as contemplated by that rule in the prescribed pro forma (part v-for excisable goods for sale in retail by the assessee/related persons of rule 6 and schedule to the central excise valuation rules, 1975) showing the value of the machines at rs. 27,083. the assistant collector, while approving such list enhanced the value to rs. 37,185.95 and also made an endorsement to the effect that the approval was provisional as contemplated by rule 9-b of the rules. on a writ petition by the assessee: - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - on the failure to execute the bond, this order shall stand vacated automatically and by its own force.orderb.p. jeevan reddy, c.j.1. heard sri a.k. gupta, learned standing counsel for the central government.2. petitioner is a manufacturer of photo copier machines amongst others. the goods in question were 'new excisable goods' within the meaning of clause (b) of rule 173-cc of the central excise rules. petitioner accordingly submitted a classification/price list as contemplated by the said rule. he submitted the same in the prescribed pro forma (part v- for excisable goods for sale in retail by the assessee/related persons of rule 6 and the schedule of the central excise valuation rules, 1975). in this proforma the petitioner showed the value of these machines at rs. 27,083. while approving the said list the assistant collector, central excise enhanced the value to rs. 37,185.95p. he also made an endorsement to the effect that the said approval is provisional as contemplated by rule 9-b of the central excise rules (we are not able to set out the said endorsement in full for the reason that in the copy of the proforma supplied to us, certain portions are missing). the petitioner is aggrieved with the said provisional approval enhancing the value over the one disclosed by the petitioner.3. in the normal course we would have relegated the petitioner to appeal but having regard to the fact that this writ petition was filed as far back as april, 1989 and this court entertained the same and made an interim order staying the said enhancement of value, we are of the opinion that the following order would be the more appropriate one in the circumstances of this case. the order, we propose to make is in terms of and in the strict conformity with rule 173-cc the order is this:the petitioner shall be permitted to remove the goods on payment of duty calculated on the basis of the value declared by him. the said duty shall be deemed to be the provisional assessed duty within the meaning of rule 9-b. however, it is directed that within 14 days from today the petitioner shall execute a bond as contemplated by the proviso to the said rule. the bond shall be for such amount, with such security or surety as the assistant collector may specify. for this purpose it is directed that the petitioner shall produce a certified copy of this order before the assistant collector within 5 days from today. within five days thereafter the assistant collector shall specify the amount and the security/surety for which the bond is to be executed. thereupon the petitioner shall execute the bond within the time prescribed here-in-above. on the failure to execute the bond, this order shall stand vacated automatically and by its own force. it is further directed that the bond shall be not only for the future period but also for the period commencing from the date of impugned provisional approval, namely, february 24, 1989. it is also directed that the final orders in the matter of classification/price list shall be passed by appropriate authority as early as possible in the circumstances of the case. till then the bond executed by the petitioner shall be subject to such final orders.4. the writ petition is disposed of with the above observations.5. a certified copy of this order shall be given to the petitioner on payment of usual charges within three days.

Judgment:
ORDER

B.P. Jeevan Reddy, C.J.

1. Heard Sri A.K. Gupta, learned Standing Counsel for the Central Government.

2. Petitioner is a manufacturer of Photo copier Machines amongst others. The goods in question were 'new excisable goods' within the meaning of Clause (b) of Rule 173-CC of the Central Excise Rules. Petitioner accordingly submitted a classification/price list as contemplated by the said Rule. He submitted the same in the prescribed pro forma (Part V- for excisable goods for sale in retail by the assessee/related persons of Rule 6 and the Schedule of the Central Excise Valuation Rules, 1975). In this proforma the petitioner showed the value of these machines at Rs. 27,083. While approving the said list the Assistant Collector, Central Excise enhanced the value to Rs. 37,185.95p. He also made an endorsement to the effect that the said approval is provisional as contemplated by Rule 9-B of the Central Excise Rules (We are not able to set out the said endorsement in full for the reason that in the copy of the proforma supplied to us, certain portions are missing). The petitioner is aggrieved with the said provisional approval enhancing the value over the one disclosed by the petitioner.

3. In the normal course we would have relegated the petitioner to appeal but having regard to the fact that this writ petition was filed as far back as April, 1989 and this Court entertained the same and made an interim order staying the said enhancement of value, we are of the opinion that the following order would be the more appropriate one in the circumstances of this case. The order, we propose to make is in terms of and in the strict conformity with Rule 173-CC The order is this:

The petitioner shall be permitted to remove the goods on payment of duty calculated on the basis of the value declared by him. The said duty shall be deemed to be the provisional assessed duty within the meaning of Rule 9-B. However, it is directed that within 14 days from today the petitioner shall execute a bond as contemplated by the proviso to the said rule. The bond shall be for such amount, with such security or surety as the Assistant Collector may specify. For this purpose it is directed that the petitioner shall produce a certified copy of this order before the Assistant Collector within 5 days from today. Within five days thereafter the Assistant Collector shall specify the amount and the security/surety for which the bond is to be executed. Thereupon the petitioner shall execute the bond within the time prescribed here-in-above. On the failure to execute the bond, this order shall stand vacated automatically and by its own force. It is further directed that the bond shall be not only for the future period but also for the period commencing from the date of impugned provisional approval, namely, February 24, 1989. It is also directed that the final orders in the matter of classification/price list shall be passed by appropriate authority as early as possible in the circumstances of the case. Till then the bond executed by the petitioner shall be subject to such final orders.

4. The writ petition is disposed of with the above observations.

5. A certified copy of this order shall be given to the petitioner on payment of usual charges within three days.