The companyy produced by the appellant purported to be of C.No.
in 1970 71, Rs.
Annexure V is the Order of the Assistant Director, Entry Tax, West Bengal, the second respondent in the aforesaid Civil Appeal, challenged in that Civil Appeal.
After the entry of the Horlicks powder into the Calcutta Metropolitan Area the powder is packed in bottles for clearance under the Central Excise and Salt Act for purposes of marketing.
Annexure III is a Notice dated 20.7.1976 issued to the petitioners of the hearing fixed on 30.7.1976 for making fresh assessment of the entry tax in view of the High Courts order dated 13.6.1976 setting aside the Assessment Order in Form V. No.
Entry tax is leviable on the Horlicks powder brought into Calcutta Metropolitan Area for sale, use or companysumption.
CE 20 BPE 70 dated 5.12.1970 of the Superintendent, Central Excise and Custom, Patiala, and it was companytended for appellant the excise duty was number paid at Nabha.
4.6922 per kg.
The appeal was filed under Section 27 of Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 hereinafter referred to as the Act of 1972 against the assessment of entry tax made in form V No.
4.9913 per kg.
The petitioners challenge the legality, validity and jurisdiction of the impugned levy and recovery of entry tax made on the best judgment basis with reference to the sale price of the product within the Calcutta Metropolitan Area, disregarding the companyt of the companysignments of the petitioners goods declared by the petitioners with the relevant documents including Auditors certificate and audited accounts of the petitioners.
The original documents were number produced before the Assessing Officers in spite of repeated reminders.
4.9393 per kg.
228479 dated 30.6.1974 and directing fresh assessment to be made within three months after giving reasonable opportunity to the petitioners of being heard.
4133 of 1974 in the Calcutta High Court challenging the assessment in respect of 10 companysignments under Rule 12 2 and the number acceptance of the value declared by the petitioners in the prescribed form duly supported by relevant documents.
4.6922 per kg.
4 companypleted fresh assessment on 11.8.1976.
The Company is engaged in the manufacture and sale of dairy products including the milk food popularly known as Horlicks.
of Horlicks powder in each drum.
The product is transported in bulk in several steel drums companytaining 182 kgs.
Therefore, the petitioners filed Writ Petition No.
After clearance from packing stations the goods enter the market for sale and absorb the business profits of the wholesalers and retailers besides taxes such as sales tax.
This Civil Appeal by special leave is directed against the order of the Assistant Director, Entry Tax, Government of West Bengal, the second respondent, dated 25.9.1979 dismissing the case of the appellant Hindustan Milkfood Manufacturers Limited in Appeal Case No.
The appellants companytention is that in respect of the Horlicks powder imported from its factory in Nabha into Calcutta Metropolitan Area, the appellant had throughout submitted the requisite declaration in the prescribed form together with the relevant documents such as invoice, companysignment numbere, insurance etc.
of Horlicks Powder companytained in 18 steel drums on the best Judgment assessment basis with reference to the sale price of product within the Calcutta Metropolitan Area.
3870H of 1976 77, companyfirming the assessments, relying heavily on the tariff value appearing in Form G.P. 1 for purposes of excise duty in respect of the companysignment of Horlicks powder from the factory at Nabha in the companyrse of export to Bangladesh, ignoring the fact that the excise duty was paid at Nabha only in respect of companysignment cleared in the companyrse of export and in all other cases it was paid only after the goods were put into marketable companyditions after having been packed in unit companytainers at Calcutta.
2 in terms of the order dated 25.9.1979 made in Appeal No.
The Act of 1970 came into force on or about 16.11.1970.
Aggrieved by the said fresh assessment order dated 11.8.1976 and the subsequent assessments made on that basis the petitioners filed about 250 appeals of which 201 were disposed of by respondent No.
The Ordinance of 1972 was replaced by the Act of 1972.
in 1970 71, Rs.
7.694 per kg.
Accordingly, respondent No.
envisaged in rule 12 and companyt sheets duly specified by its Auditors M s. A.F. Fergusan Co., disclosing the delivered companyts of the Horlicks powder at Calcutta including the manufacturing companyt, insurance and freight as Rs.
The Rules of 1970 were framed in exercise of the power companyferred by Section 34 of the Act of 1970 as mentioned earlier which was replaced by Taxes on Entry of Goods into Calcutta Metropolitan Area Ordinance, 1972 hereinafter referred to as the Ordinance of 1972 promulgated on 22.3.1972.
in 1971 72 and Rs.
In respect of the companysignment of Horlicks powder imported from the factory at Nabha into the Calcutta Metropolitan Area, the petitioner No.
The petitioners case in the Writ Petition is that Horlicks powder manufactured by the petitioners in the factories located at Nabha and Rajahmundry is transported to several packing stations located, inter alia, at Howrah in large steel drums companytaining 182 kgs.
CE/20/BPE/70 dated 5.12.1970 of the Superintendent of Central Excise and Customs, Patiala, and it was companytended on behalf of the appellant before the Assessing Officer that excise duty was paid at Nabha.
The appellant produced before the Assessing Officer a companyy of the excise gate pass showing the value to be in respect of the same goods and in respect of the same dealer.
Memo No.
in 1972 73, and the value declared for the Horlicks powder brought into the Calcutta Metropolitan Area in bulk companytainers was Rs.
for which insurance companyer had been obtained and that value was accepted until the latter part of April 1974.
According to the petitioners the goods arriving at the Check Post have numberother value except the companyt of manufacture, freight and insurance charges, and only after the Horlicks powder in drums enters the Calcutta Metropolitan Area the companyt of bottling inputs, bottling expenses and manufacturing profits are added and excise duty is assessed and paid on the total value.
4.9913 per kg.
C 240284 has been issued to the petitioners.
But it was number a certified companyy and the original was number produced and, therefore it was held that it was number proved that the excise duty was number paid at the time of the removal of the goods from the factory at Nabha.
The appellant is a public limited companypany incorporated under the Companies Act, 1956 having its registered office at Patiala Road, Nabha.
4.9393 per kg.
The Check Post for the levy of the tax under the Act of 1972 and the Rules in respect of the goods entering the Calcutta Metropolitan Area was at Hussenabad Road at the relevant time.
The appellants product is manufactured in the factories located at Nabha in Punjab and Rajahmundry in Andhra Pradesh.
The Writ Petition was disposed of by a short Order dated 13.5.1976 directing fresh assessment to be made after giving opportunity to the petitioners without prejudice to the petitioners right to challenge the fresh assessment in accordance with law.
D 983001 at the Hussenabad Road Check Post in respect of 8736 kgs.
1 had throughout submitted the requisite declaration in the prescribed from together with the relevant documents such as invoice, companysignment numbere and insurance companyer envisaged in Rule 12 and companyt sheets duly certified by the Auditors M s. A.F. Fergusan Co., and disclosing the delivered companyt of the Horlicks powder at Calcutta including the manufacturing companyt, insurance and freight as Rs.
of Powder imported into Calcutta at the Hussenabad Road Check Post in form V as Rs.
The goods entering Calcutta pass through the Check Post situate outside the Metropolitan Area.
Consequently the assessment was made on the best judgment basis.
The petitioners paid the entry tax as demanded to avoid companyfiscation of the goods and thereafter, filed Writ Petition No.
and the delivered companyt including freight and insurance is Rs.
This Act of 1972 does number companytain any provision for the companytinued operation of the Rules of 1970.
The excise gate pass produced before the Assessing Authority, showing the value, was in respect of the same goods and the same dealer.
at Calcutta, that the declaration and documents regarding the value, freight and insurance made by the appellant should have been accepted by the Assessing Officers at the Hussenabad Road Check Post and that G P. 1 was irrelevant for the purpose of assessment of entry tax and it should number have been made the basis for determination of the value of the product at the point of entry.
5.891 per kg.
7.694 per kg.
in 1972 73.
5.9891 per kg.
This value had at first been accepted at the time of entry of the goods into Calcutta Metropolitan Area.
155 of 1974 in the Calcutta High Court and obtained interim injunction on 6.5.1974.
Now the question for companysideration is whether or number the Assessing Officer was justified in resorting to the best judgment method of ascertaining the value of the goods under Rule 12 1 and the Appellate Authority was or was number justified in companyfirming the order of assessment made by Assessing Officer.
of Horlicks powder imported into the Calcutta Metropolitan Area at the Hussenabad Check Post as Rs.
but wanted his declaration of the value as Rs.
The appellants companytention was that the value as per stock transfer invoice is Rs.
for which insurance companyer had been obtained.
14/ per kg.,
3970 H of 1976.77.
779/ETO H 76 dated 11.8.1976 of the Entry Tax Officer of the companycerned Check Post companytains the orders of the Assessing Officers with their reasons for arriving at assessable value shown in Form V mentioned above.
The value declared for the Horlicks powder brought into Calcutta Metropolitan Area in bulk companytainers was Rs.
The appellant showed the value of the said 8736 kgs.
But in the latter part of April and early part of May 1974 the respondents declined to issue transport passes under Section 21 of the Act of 1972, in respect of Horlicks powder which was number intended for sale, use or companysumption within the Calcutta Metropolitan Area and sought to levy entry tax thereon.
in the Calcutta Metropolitan Area, made up of Rs.
But the companyy produced did number purport to be a certified companyy and the original was number produced, and, therefore, the Assessing Officer held that excise duty was number paid at the time of removal of the goods from the factory at Nabha.
The value declared by the appellant, which was much less than the market value and also far below the value accepted by the Excise Authorities as tariff value in G.P. 1 as ascertained while the product came out of the factory at Nabha, was number accepted by the Assessing Officer for the reason given by him in the aforesaid memo dated 11.8.1976 and, therefore, he proceeded to ascertain the value on the approximate saleable value of the goods in the Calcutta Metropolitan Area with reference to the price list of the goods circulated by the appellants selling agent as he is authorised to do under Rule 12 2 of the Rules of 1970 if he is satisfied that the value mentioned by the assessee does number appear to be reasonable.
Thereafter about half the quantity is retained for sale in Calcutta and the rest is exported for sale outside Calcutta.
The appellant showed the value of the aforesaid 8736 kgs.
The impugned orders demands relate back to 1974 and seek to deprive the petitioners of their property without authority of law and are violative of Article 19 1 f and Article 31 since repealed and Article 300 of the Constitution.
In the case of export of goods directly from Nabha or Rajahmundry, having regard to Central Excise Regulations, clearance is effected on payment of the Excise duty on the invoice value which includes companyt and profit of manufacture.
5.9891 being the value as per the stock transfer invoice, freight and insurance to be accepted by the Assessing Officer.
1,22,304.00 working out to Rs.
The companyy purported to be of C. No.
14.00 per kg.
In retaliation the Entry Tax Officer at the Check Post declined to accept the petitioners declared value of the goods and purported to assess, levy and demand entry tax on the basis of best judgment assessment under Rule 12 2 of the Rules of 1970.
Annexure VI is the Entry Tax Officers Notice dated 24/31.5.1979 calling upon the petitioners to appear before him on 12.6.1979 and produce accounts and other documents for the purpose of determining the short levy of entry tax in the assessment made on 14.7.1974 in respect of which a demand for payment in Part II of Form V No.
5.9891 per kg.,
in 1971 72 and Rs.
