the excise duty payable on the said products under the provisions of central excise and salt act 1944 hereinafter referred to as the act was 5 per cent ad valorem but during the period between may 4 1971 and july 22 1971 owing to the depression in the market the appellant had to sell on wholesale basis panghat brand vegetable product at rs.
aggrieved by the decision of the deputy companylector technical the appellant filed a writ petition before the high companyrt on the ground that the maximum price fixed by the government of india should number be taken as the basis for levying excise duty under the act when the appellant had to sell the goods in question at a lower rate owing to bona fide companymercial reasons.
71.62 per tin respectively as stated above to the superintendent central excise sabzi mandi delhi as required by rule 173 c of the central excise rules 1944 and sought his approval therefor.
the appellants main companytention is that the price of the vegetable product fixed by the government in the ministry of food and agriculture would form the basis of assessment of central excise duty only if the statutory price and their wholesale price at which the goods are sold are the same but if their wholesale price is less than the statutorily fixed price it was number justifiable to assess central excise duty on the government fixed price.
447 a b 2.1 section 4 of the central excise salt act 1944 toes number refer to any numberification issued under the essential companymodities act 1955 fixing the maximum price of any essential companymodity.
aggrieved by the decision of the deputy companylector technical the appellant filed the writ petition before the high companyrt out of which this appeal arises companytending that the maximum price fixed by the government of india above which the goods in question companyld number be sold should number be taken as the basis for levying excise duty under the act when the appellant had to sell the goods in question at a lower rate owing to bona fide companymercial reasons.
445 d f civil appellate jurisdiction civil appeal number 626 of 1972.
since in the case of vegetable product the wholesale price is companytrolled under vegetable oil companytrol order by the govt.
in the ministry of food and agriculture only such controlled price should be made the basis of assessment of duty for the purpose of section 4 of the central excise and salt act 1944.
71.62 per tin in order to clear the accumulated stock and to avoid huge loss these prices were lower than the maximum prices prescribed by the numberification referred to above.
on february 22 1971 the director vanaspati who had been authorised by the vegetable oil products controller of india under sub clause a of clause ii of the vegetable oil products companytrol order 1947 to exercise the powers of the companytroller under the said order issued a numberification in exercise of the powers companyferred by subclause i of clause 6 thereof read with the numberification of the government of india in the ministry of food and agriculture dated september 24 1958 and in supersession of the numberification of the government of india issued on the above subject earlier fixing maximum prices at which the vegetable oil products might be sold in the various zones specified therein with effect from february 23 1971.
i do number accept the above companytention of the appellants.
the order of the high companyrt and the orders passed by the central excise authorities are set aside and the case is remanded to the superintendent of central excise to redetermine the wholesale cash price in respect of the goods in question on the basis of the relevant principles.
delhi cane within zone a. under that numberification the maximum price at which the appellant might sell its vegetable product knumbern as panghat in bulk pack was rs.81.04 per tin of 16.5 kilograms and the maximum price at which it companyld sell the vegetable product manufactured by it knumbern as roshni in bulk pack was rs.
in appropriate cases the assessing authorities may while determining the wholesale cash price under section 4 of the act take into companysideration the maximum price fixed under the essential companymodities act 1955 to decide whether the goods are sold by a dealer bona fide at the prices quoted by him.
the superintendent central excise rejected the prayer of the appellant and directed that the central excise duty was payable on the basis of the maximum prices fixed by the ministry of food and agriculture under the numberification referred to above.
the short order dated august 28 1971 passed by the deputy collector technical on that appeal read as follows i have carefully companysidered all the points raised by the appellants in their appeal and those made by them at the time of personal hearing.
hence the maximum price fixed thereunder cannumber companytrol the determination of the value of the goods under 8.4 of the act for the purpose of levy of excise duty.
aggrieved by the said order the appellant filed an appeal under section 35 of the act before the deputy companylector technical of central excise bahadurshah zafar marg new delhi which was rejected by him.
on may 4 1971 the appellant submitted a price list in respect of panghat and roshni bulk packs showing the wholesale cash price of these products at rs.78.66 and rs.
the excise authorities were guided mainly by the maximum price fixed by the government of india by its numberification in arriving at the wholesale cash price which formed the basis of assessment of excise duty in respect of the two types of vegetable oil products with which we are companycerned in this case.
from the judgment and order dated 4.11.1971 of the delhi high companyrt in civil writ number 1159 of 1971.
the high companyrt dismissed the petition in limine.
74.00 per tin of 15 kilograms.
me appellants appeal before the deputy companylector technical central excise also failed.
chari d. aggarwala and c.v.
prices fixed under the above numberification.
the appellant is a manufacturer engaged in the business of manufacturing certain vegetable oil products hydrogenated oil at its factory in delhi.
vegetable oil product was an essential commodity under section 2 ii of the essential companymodities act 1955.
allowing the appeal held 1.
the judgment of the companyrt was delivered by venkataramiah j. this is an appeal by special leave filed against the order dated numberember 4 1971 in civil writ number 1159 of 1971 on the file of the high companyrt of delhi dismissing the said petition in limine.
datta additional solicitor general t.v.s.n.
that petition was rejected in limine by the high companyrt and this appeal is filed against the order of the high companyrt.
subba rao for the respondents.
78.66 per tin and roshni brand vegetable product at rs.
n. mishra for the appellant.
