judgement:
Special Leave Petition (Civil) No. 6495 of 1988.
From the Judgment and order dated 3.5.1988 of the Patna High Court in C.W.J.C. No. 2063/88.
K.K. Gupta for the Petitioner.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short point which arises for consideration in this case is whether without a prior agreement between two or more Regional Transport Authorities through which an inter regional route passes it is open to any one of the said Regional Transport Authorities to grant a permit to ply a stage carriage on the said inter regional route under the provisions of the (hereinafter referred to as 'the ').
After the opening of the 'Mahatama Gandhi Sethu ' connecting South Bihar and North Bihar by road there was a great need for granting permits to operate stage carriage services between places which are situated in North Bihar and the places in South Bihar.
Therefore, in order to satisfy the demand of the travelling public, the North Bihar Regional Transport Authority issued an advertisement inviting applications for granting stage carriage permits in respect of inter regional routes connecting certain places situated within its jurisdiction and certain other places which are situated within the 596 jurisdiction of South Bihar Regional Transport Authority.
A number of applications were received for the grant of the permits on the said inter regional routes.
The North Bihar Regional Transport Authority issued notices to all the persons concerned stating that the said applications would be taken up for consideration at its meeting to be held on 7th April, 1988.
The petitioner who was operating some stage carriages on some of the inter regional routes filed a writ petition in C.W.J.C. No. 2063 of 1988 on the file of the High Court of Patna questioning the power of the North Bihar Regional Transport Authority to grant permits on the inter regional routes without a prior agreement between it and the South Bihar Regional Transport Authority and obtained an order of stay of the said proceedings from the High Court on 6th April, 1988 pending disposal of the Writ Petition.
The Writ Petition was heard by the High Court on 3.5.1988 and it was dismissed.
Aggrieved by the order of the High Court the Petitioner has filed this petition.
When the Writ Petition was filed before the High Court the petitioner did not implead the applicants who had made applications for the grant of stage carriage permits.
The applicants, however, appeared before the High Court as interveners and made their submissions.
They contended that the Writ Petition was liable to be dismissed since they (the applicants for permits) had not been impleaded as parties and that the contention of the petitioner that a prior agreement between the two Regional Transport Authorities was necessary before any one of them could grant a permit was erroneous.
The High Court has upheld both the contentions.
Under section 45(1) of the every application for a permit has to be made to the Regional Transport Authority of the region in which it is proposed to use the vehicle or vehicles but if it is proposed to use the vehicle or vehicles in two or more regions Iying within the same State, the application has to be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles.
The application for stage carriage permit should contain the particulars required to be furnished under section 46 of the .
Section 57 of the provides for the procedure to be followed for granting permits.
On receipt of an application for a stage carriage permit the Regional Transport Authority should make the application available for inspection at the office of the Authority and is also 597 required to publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which, and the time and place at which, the application and any representations received would be considered.
The Regional Transport Authority should, while considering an application for a stage carriage permit, have regard to the matters specified in section 47 of the , namely, the interest of the public generally, the adequacy of the passengers, the stage carriages operating or likely to operate in the near future whether by road or other means between the places to be served, the benefit to any particular locality or localities likely to be afforded by the service etc.
At the hearing it is open to any one of the parties who has objected to the grant of the permit to raise all contentions which are open to him under the including that there is no need for issuing the permit applied for under sub section (3) of section 47 of the a Regional Transport Authority may limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region.
It has been held by this Court in Mohd. Ibrahim etc.
vs State Transport Appellate Tribunal, Madras, etc., that sub section (3) of section 47 is confined in its operation to the permits under which the stage carriages are to be operated between two or more places within the same region and that section 47(3) does not apply to applications for inter State permits or to inter regional permits.
We shall refer to this decision again at a later stage.
The relevant part of section 63 of the reads thus: 63.
Validation of permits for use outside region in which granted (1) Except as may be otherwise prescribed, a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been counter signed by the Regional Transport Authority of that other region, and a permit granted in any one State shall not be valid in any other State unless counter signed by the State Transport Authority of that other State or by the Regional Transport Authority concerned.
. . . . . . . . (2) A Regional Transport Authority when counter 598 signing the permit may attach to the permit any condition which it might have imposed if it had granted the permit, and may likewise vary any condition attached to the permit by the Authority by which the permit was granted.
(3) The provisions of the Chapter relating to the grant, revocation and suspension of permits shall apply to the grant, revocation and suspension of countersignatures of permits: Provided that it shall not be necessary to follow the procedure laid down in Section 57 for the grant of counter signatures of permits, where the permits granted in any one State are required to be counter signed by the State Trans port Authority of another State or by the Regional Trans port Authority concerned as a result of any agreement arrived at between the States after complying with the requirements of sub section (3 A), or for the grant of countersignatures of permits in pursuance of any direction issued by the Commission under clause (c) of sub section (2) of section 63 A." A reading of the provisions of section 63 of the , extracted above, shows that in the absence of any rules to the contrary framed under the a permit granted by the Regional Transport Authority of any one region is not valid in any other region unless the permit has been counter signed by the Regional Transport Authority of the other region and a permit granted in any one State is not valid in any other State unless it is countersigned by the State Transport Authority of the other State or of the Regional Transport Authority concerned.
When countersigning a permit it is open to the Regional Transport Authority of the other region to impose its own conditions which it might have imposed if it had granted the permit.
The provisions of Chapter IV relating to the grant, revocation or suspension of permits apply to the grant, revocation or suspension of the countersignature of the permits also.
If there are any rules framed by the State Government under the they shall supersede the provisions of section 63 of the and the rules framed in that regard have to be followed by the Transport Authorities in the case of inter regional permits.
If There is an agreement between the States concerned with regard to the grant and the countersignature of the permits, then it is not necessary to comply with the procedure prescribed by section 63 of the for countersignature of permits.
No rule framed under the by the State of Bihar with 599 regard to the procedure to be followed in the case of countersignature of permits has been brought to our notice.
We shall, therefore, proceed on the basis that the provisions of section 63 of the would be applicable to all inter regional permits in the State of Bihar.
Since section 47(3) is held to be inapplicable to inter State permits or inter regional permits it is open to the Regional Transport Authority concerned to decide the question whether there is any necessity to issue the permit applied for at the time of consideration of the application for the grant of a permit in the light of the representations made before the Regional Transport Authority by the applicants, objectors and other concerned parties.
In Mohd. Ibrahim etc.
vs State Transport Appellate Tribunal, Madras etc., (supra) dealing with the question whether there was any necessity for a prior determination of the maximum number of stage carriages which can be permitted to operate on an inter State route, this Court observed at page 483 of the Report thus: "These provisions establish that in the case of an inter State permit an application has to be made to the Regional Transport Authority of a State as mentioned in section 45 of the and the permit is to be countersigned by the State Transport Authority of the other State or by the Regional Transport Authority concerned as mentioned in section 63 of the .
Chapter IV consists of sections 42 to 68.
Section 57 deals with procedure for application and grant of permits.
That section will, therefore, apply for the grant of inter State permits.
The effect of the proviso to section 63(3) is that in the case of inter State permits where an agreement has been arrived at between the State the provisions of section 57 of the need not be followed for the grant of countersignatures of permits.
In other cases the procedure in section 57 of the will apply in regard to grant, revocation and suspension of permits and to ' countersignatures of permits as well.
Section 48 of the which relates to power to grant of stage carriage permits will also apply to inter State permits.
The provisions contained in sub section (1) generally and sub section (2) of section 47 will apply to the Regional Transport Authority at the time of consideration of the application for inter State stage carriage permit.
Section 47(3) of the will not in our opinion apply to inter State permits because that provision relates to a Regional transport Authority limiting the number of stage carriages for which stage carriage permits 600 may be granted in the region or in any specified area or on any specified route within the region." (underlining by us) The Court proceeded to observe: "In other words, section 47(3) of the is confined in its operation in or within the region.
The provisions of section 47(3) of the do not apply to inter State permits because an inter State permit cannot be effective unless it is countersigned by the Authority of the other State.
The suggestion that in regard to inter State permits a limit has to be fixed in regard to number of stage carriages for inter State routes will have the effect of adding words to the provisions in section 47(3) of the .
That will not be the proper way of giving effect to section 47(3) of the .
It will be misreading section 47(3) of the if it will be applied to inter State permits.
The combined effect of sections 63, 63 A, 63 B and 63 C is that the inter State Commission will deal with inter State permits.
The Central Government under section 63 C of the is authorised to make rules in regard to the procedure to be followed in considering an application for grant and countersignature .
Of permits.
In the absence of specific rules, the best way of harmonising the powers and functions is to allow these inter State authorities to exercise their power within their respective spheres in regard to grant and countersignature of permits by agreement and accord. " (underlining by us).
The last sentence in the above extract of the judgment contains only a suggestion made by the Court to the inter State authorities concerned regarding the manner in which the inter State authorities should exercise their powers with regard to the grant and countersignature of permits to avoid any possible difference of opinion between them.
It does not.
however, require a Regional Transport Authority in one State to enter into an agreement with the Regional Transport Authority in the other State before granting an inter state permit under the .
The observation referred to above is not a part of the ratio of the decision.
It may also be noted that a similar observation is not made by the court while dealing with the case of an inter regional permit within a State.
In fact, in the case of inter State permits there is 601 already an express provision enabling two or more States to enter into an inter State agreement.
In the same decision at Pages 483 484 the Court made the following observations in respect of inter regional permits: "In the case of inter regional permits an application under section 45 of the has to be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles.
Then under section 63 of the a permit granted by the Regional Transport Authority of one region shall not be valid in any other region unless the permit is countersigned by the Regional Transport Authority of that other region.
Section 63(3) of the makes the provisions of Chapter IV applicable relating to the grant, revocation and suspension of permits to the grant, revocation and suspension of countersignature of permits.
The result is that sections 47 to 68 which occur in Chapter IV are therefore attracted in case of inter regional permits.
In view of the fact that section 47(3) of the is restricted in its field in or within the region, the provisions in terms do not become applicable to inter regional permits.
Section 68 of the contemplates rules and conditions subject to which and the extent to which, a permit shall be valid in another region within the State without countersignature.
We have not been shown any rules to that effect.
The reasons which do not make section 47(3) applicable to inter State permit apply proprio vigore to inter regional permits.
" It is significant that the does not contain any procedure for two or more Regional Transport Authorities entering into an agreement before an application for an inter regional permit is granted.
The only provision which provides for an agreement to be arrived at for purposes of countersignatures is the agreement between two or more States referred to in the first proviso to sub section (3) of section 63 of the .
An inter State agreement of that nature can be arrived at only after following the procedure prescribed under sub section (3 A) of section 63 of the which provides for the publication of the proposal to enter into an agreement between the concerned States in the official Gazette and calling for representations in connection therewith 602 from the affected parties and also the publication of the time and place at which the proposal or any representation is received in connection therewith will be considered by the Government concerned.
At that stage it is open to the parties who are affected by the proposal to make all representations which they wish to make including the representation that there is no necessity to introduce any more stage carriages on the inter State routes in question.
In one sense the procedure prescribed in sub section (3 A) of section 63 of the takes the place of the procedure to be followed by a Regional Transport Authority while granting or counter signing permits.
If any State Government is of opinion that in the case of inter regional permits within its territory there should be a similar agreement between the Regional Transport Authorities concerned before granting any inter regional permit, it may frame appropriate rules providing fur publication of the proposal to enter into an agreement, inviting objections to the proposal and hearing objections and representations of the affected parties by the concerned Regional Transport Authorties before entering into any such agreement.
In the absence of any such rules being there, it is open to the affected parties to raise the contention that there is no necessity to issue any additional inter regional permit before the Regional Transport Authority to which application for the grant of a permit is made as well as the Regional Transport Authority to which an application for counter signature of the permit is made.
In the instant case since there is no provision in the or in the Rules made by the State Government requiring the existence of such a prior agreement, it is difficult to hold that in the absence of such a prior agreement between the Regional Transport Authorities concerned an application for the grant of an inter regional permit should not be taken up for consideration by a Regional Transport Authority which has the jurisdiction to grant it under section 45 of the .
If a permit is issued by a Regional Transport Authority and it is not countersigned by the other Regional Transport Authority the permit will not be effective in the other region.
What we have observed above is in accord with the decision of a Constitution Bench of this Court in M/s. Bundelkhand Motor Transport Company, Nowgaon vs Behari Lal Chaurasia and Another, ; In that case at Page 492 the Constitution Bench has observed thus: "Under section 63 a permit granted by the Regional Trans port Authority of one region is not valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region.
The 603 clearest implication of this provision is that even an inter regional permit when granted is valid for the region over which the Authority granting the permit has jurisdiction, and when it is countersigned by the Regional Transport Authority of the other region, the permit becomes valid for the entire route.
We are unable to agree with counsel for the respondent that the permit has no validity whatever until it is countersigned by the Regional Transport Authority of the other region " The North Bihar Regional Transport Authority has, therefore, jurisdiction to consider the applications for the grant of the inter regional permits in question.
After they are granted, it is open to the South Bihar Regional Transport Authority to consider whether they should be countersigned or not after following the prescribed procedure.
The High Court was, therefore, right in dismissing the Writ Petition.
This Special Leave petition, therefore, fails and it is dismissed.
S.L. Petition dismissed.

summary:
The short point which arose for consideration in this case was whether without a prior agreement between two or more Regional Transport Authorities of the regions through which an inter regional route passes, it was open to any one of the said Regional Transport Authorities to grant a permit to ply a stage carriage on the said inter regional route under the provisions of the ( 'the ').
The North Bihar Regional Transport Authority invited applications for granting stage carriage permits in respect of inter regional routes connecting certain places within its jurisdiction and certain other places within the jurisdiction of the South Bihar Regional Transport Authority.
The petitioner filed a writ petition in the High Court, questioning the power of the North Bihar Regional Transport Authority to grant permits above said without a prior agreement between it and the South Bihar Regional Transport Authority.
The High Court dismissed the writ petition.
Aggrieved by the order of the High Court, the petitioner moved this Court for relief by this petition for special leave.
Dismissing the petition, the Court, ^ HELD: Under section 45(1) of the , an application for a permit for a vehicle proposed to be used in two or more regions within the same State, has to be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies, and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle.
[596F G] 594 Under section 63 of the , in the absence of any rules to the contrary under the , a permit granted by the Regional Transport Authority of one region is not valid in any other region unless the permit has been counter signed by the Regional Transport Authority of the other region, while counter signing a permit, it is open to the Regional Transport Authority of the other region to impose its own conditions which it might have imposed if it had granted the permit.
If there are any rules framed by the State Government under the , they supersede the provisions of section 63.
If there is an agreement between the States concerned with regard to the grant and the counter signature of the permits, then it is not necessary to comply with the procedure prescribed by section 63, for counter signature of permits.
In this case, the provisions of section 63 of the applied to all the inter regional permits in the State of Bihar.
as no rule framed under the by the State of Bihar regarding the procedure to be followed in the case of counter signature of permits was brought to the notice of the Court.
[598R H;599A] Section 47(3) being inapplicable to the inter State or inter regional permits, it is open to the Regional Transport Authority concerned to decide whether there is any necessity to issue the permit applied for.
The does not contain any procedure for two or more Regional Transport Authorities entering into an agreement before an application for an inter regional permit is granted.
The only provision which provides for an agreement to be arrived at for purposes of counter signature is the agreement between two or more States referred to in the first proviso to sub section (3) of section 63 of the .
An inter State agreement of that nature can be arrived at only after following the procedure prescribed under sub section (3A) of section 63 when it is open to the parties affected by the proposal to make representations.
In one sense, the procedure prescribed in sub section (3A) of section 63 takes the place of procedure to be followed by a Regional Transport Authority while granting or counter signing permits.
In this case, since there is no provision in the or in the Rules made by the State Government, requiring the existence of such a prior agreement, it is difficult to hold that in the absence of such a prior agreement between the Regional Transport Authorities concerned, an application for the grant of an inter regional permit should not be taken up for consideration by a Regional Transport Authority which had the jurisdiction to grant it under section 45 of the .
If a permit is issued by a Regional Transport Authority and it is not counter signed by the other Regional Transport Authority, the permit will not be effective in the other region.
What has been observed above is in accord with the deci 595 sion of a Constitution Bench of this Court in M/s. Bundelkhand Motor Transport Co., Nowgaon vs Behari Lal Chaurasia and Anr., [599B; 601F G; 602E G] The North Bihar Regional Transport Authority had jurisdiction to consider the applications for the grant of the inter regional permits in question.
After they were granted, it was open to the South Bihar Regional Transport Authority to consider whether they should be counter signed or not after following the prescribed procedure.
The High Court was right in dismissing the Writ Petition.
[603C D] Mohd. lbrahim etc.
vs State Transport Appellate Tribunal, Madras, etc., ; M/s. Bundelkhand Motor Transport Company, Nowgaon vs Behari Lal Chaurasia and Another, ; , referred to.


judgement:
Civil Appeals Nos.
2801 06 of 1987.
689 From the Judgment and Order dated 8.7.1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos.
E 1533, 1521, 1528 30 & 1531 of 1986and Order No.498 to 503 of 1987.
Soli J. Sorabji, V.J. Francis, N.M. Popli, Mrs. Nisha Bagchi and section Ganesh for the Appellant.
Mrs. Indu Malhotra and P. Parmeshwaran for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These are appeals under Section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the Act ').
The appellant manufactures compressed Oxygen and dissolved acetylene falling under tariff item No. 14H of the First Schedule of the Act as it stood at the relevant time.
The appellant had received showcause notice in respect of the period from 1.1.1984 to 31.1.1984 and also five other show cause notices for different periods, in respect of the price lists submitted by the appellant seeking approval of the price list of gases in question.
It was found by the Tribunal that the appellant manufactures and sells oxygen and D.A. Gases.
These are sold from the factory of the appellant at Visakhapatanam and from their depot/service centres at Vijayawada, Rajamundry, Vadlapudi, Jeypore and Damanjodi.
They sell their product to Government undertakings as per the rates determined by DGS & D, New Delhi.
In respect of other buyers the appellant sell their product at various prices on slab basis.
It is stated that the slab basis is related to what the manufacturers call a quantitative discount.
According to the Tribunal, the revenue had undertaken verification of the prices charged by the manufacturers at their depots and service centres.
These were found to be much more than the prices indicated in the approved price list.
It also observed that the manufacturers did not furnish to the department quantities of their product which were sold from their depots/service centres and that the appellant charged from their buyers, apart from the declared price list, the following: (i) Delivery and collection charges (where applicable); (ii) Cylinder deposit; and (iii) Rentals.
690 The department 's case was that these being additional charges, should form part of the assessable value.
It was urged on behalf of the revenue that the price list submitted by the manufacturers in respect of clearances from their Vijayawada depot the appellant claimed abatements on account of freight and handling charges in respect of which they did not produce any evidence.
It was, therefore, held by the Department that no such deduction was admissible.
It, however, appeared to the Tribunal that the manufacturers have admitted that separate prices were indicated for the same goods in respect of Visakhapatnam factory which is the place of manufacture and Vijayawada, a place about 400 Km.
away which is only a depot.
It was explained that the difference in the prices was in consideration of special delivery and collection charges which were admittedly incurred for transporting the goods from Visakhapatnam to Vijayawada.
The Tribunal noted that the appellant had not come forward to offer concrete evidence of actual freight charges etc.
It, however, emphasised that the price at the factory gate is ascertainable.
Assessment should, therefore, be made in terms of that price.
Hence, there was no scope of deduction from that price.
It, therefore, directed that if the ex factory prices were not ascertainable and the goods were to be assessed ex depot, then it would be for the manufacturer to claim on the basis of actual evidence.
It remanded the case to the Asstt.
Collector to refix the assessable value as directed.
It is necessary to reiterate the principle upon which the assessable value will have to be determined in this case.
The cost of transportation from factory at Visakhapatnam and the depot at Vijayawada cannot be included normally in computation of the value.
The value has to be computed under Section 4(1)(a) read with Section 4(4)(d)(i) of the Act, Where the wholesale price is ascertainable at the factory gate, the question of transportation charges becomes entirely irrelevant.
The cost of transportation from the factory gate to the place of delivery and transit expenses were not to be added to the wholesale price at factory gate for purposes of duty under the Act.
In this case the price of the goods at the factory gate Visakhapatnam is known.
It is clear from Section 4 that the delivery and collection charges have nothing to do with the manufacture as they are for delivery of the filled cylinders and collection of the empty cylinders.
These charges have to be excluded from the assessable value.
Insofar as the loading charges incurred for loading the goods within the factory are concerned, they are to be included in the assessable value, irrespective of who has paid for the same but 691 the loading exepnses incurred outside the factory gate are excludible.
Duty of excise is a tax on the manufacture, not a tax on the profits made by a dealer on transportation.
It is necessary to reiterate that value for assessable goods must be determined in terms of section 4 of the Act.
The said section 4(1) provides that where the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section be deemed to be the normal price therefore, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place or removal, where the buyer is not a related person and the price is the sole consideration for the sale.
"Place of removal" under section 4(4)(b) has been defined to mean a factory or any other place or premises of production or manufacture of the excisable goods or a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty, from which such goods are removed.
The scope of determination of value has been explained and reiterated by this Court in Union of India and others etc.
vs Bombay Tyre International Ltd. etc.
; , Following the principle of the said case the Tribunal noted in the judgment under appeal that the price ex factory is ascertainable.
If once that is the position as the Tribunal rightly pointed out, the issue of deduction of rate from the prices ex depots does not survive for the decision.
But if the ex factory prices were not ascertainable and the goods were to be assessable ex depot, then it would be for the manufacturer to claim on the basis of actual evidence the deductions that should be admissible from the price list as per the provisions of the Act.
Counsel for the respondent, Ms. Indu Malhotra who argued this case with considerable ability before us drew our attention to the following observations in the Bombay Tyre International (supra) at pages 376 and 377 of the report: "Accordingly, we hold that pursuant to the old section 4(a) the value of an excisable article for the purpose of the excise levy should be taken to be the price at which the excisable article is sold by the assessee to a buyer at arm 's length in the course of wholesale trade at the time and place of removal.
Where, however, the excisable article is not sold by the assessee in wholesale trade but, for example, is consumed by the assessee in his own industry the case is one 692 where under the old section 4(a) the value must be determined as, the price at which the excisable article or an article of the like kind and quality is capable of being sold in wholesale trade at the time and place of removal.
Where the excisable article or an article of the like kind and quality is not sold in wholesale trade at the place of removal, that is, at the factory gate, but is sold in the wholesale trade at a place outside the factory gate, the value should be determined as the price at which the excisable article is sold in the wholesale trade at such place, after deducting therefrom the cost of transportation of the excisable article from the factory gate to such place".
She also drew our attention to the observations of the Court at pages 391 and 392 of the Report: "Therefore, the expenses incurred on account of the several factors which have contributed to its value upto the date of sale, which apparently would be the date of delivery, are liable to be included.
Consequently where the sale is effected at the factory gate, expenses incurred by the assessee up to the date of delivery on account of storage charges, outward handling charges, interest on inventories (stocks carried by the manufacturer after clearance), charges for other services after delivery to the buyer, namely after sales service and marketing and selling organisation expenses including advertisement expenses can not be deducted.
It will be noted that advertisement expenses, marketing and selling organisation expenses and after sales service promote the marketability of the article and enter into its value in the trade.
Where the sale in the course of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted.
But the assessee will be entitled to a deduction on account of the cost of transportation of the excisable article from the factory gate to the place or places where it is sold.
The cost of transportation will include the cost of insurance on the freight for transportation of the goods from the factory gate to the place or places of delivery.
" 693 She contended that in the instant case, in view of the conduct of the dealer, there was doubt as to what was the real ex factory price.
If there was a finding that there was no real ex factory price, then the aforesaid observations would have required serious examination.
But in this case, the case has not proceeded on that basis.
On the contrary, there is a clear finding that there was a ex factory price which is ascertainable.
If once that is the position that should be the basis upon which the value is to be determined, the other expenses, costs or charges must be excluded.
Inasmuch as that is the correct position in law, we direct that the Assistant Collector will re fix the assessable value as indicated in this judgment.
The Tribunal 's judgment is modified accordingly.
These appeals are disposed of.
There will be no order as to costs.
G.N. Appeals disposed of.

dataset_name: IN-Abs

summary:
The appellant has been manufacturing compressed oxygen and dissolved acetylene, falling under tariff item No. 14H of the First Schedule to the Act.
These items were sold to Government undertakings at the rates determined by DGS&D.
In respect of other buyers the appellant charges prices on slab basis which is related to quantitative discount.
These prices were found to be much more than the prices indicated in the approved price list.
The appellant did not furnish quantities of the products sold from its depots/service centres.
Apart from the declared price, the appellant charged delivery and collection charges, cylinder deposit and rentals.
The appellant explained that the difference in prices was due to special delivery and collection charges incurred for transporting the goods from the place of manufacture to the depot from where it was sold.
The appellant 's claim for abatements of account of freight and handling charges was not accepted as no evidence was produced for the same.
In respect of the price lists submitted by the appellant for approval, show cause notices were issued.
The appellant replied that in the past, under similar circumstances the claim for abatement had been upheld by the Department and therefore, there was no reason to deviate from the previous practice.
The Assistant Collector rejected the plea and approved the price list after disallowing the abatement on account of freight and handling charges.
The appellant preferred an appeal before the Collector of Central Excise (Appeals) which was dismissed.
Thereafter both the appellant and the Assistant Collector filed separate appeals before the Customs Excise and Gold (Control) Appellate Tribunal.
688 The Tribunal emphasised that the ex factory prices were ascertainable and there was no scope of deduction from that price.
However it directed that if ex factory prices were not ascertainable and the goods were to be assessed ex depot, then it would be for the appellant to claim on the basis of actual evidence, and remanded the case to the Assistant Collector to refix the assessable value accordingly.
These appeals under section 35L(b) of the Act are against the Tribunal 's decision.
Disposing of these appeals, ^ HELD: 1.
The cost of transportation from factory to the depot cannot normally be included in computation of the value under Section 4(1)(a) read with section 4(4)(d)(i) of the Act.
Where the wholesale price is ascertainable at the factory gate, the question of transportation charges becomes entirely irrelevant.
The cost of transportation from the factory gate to the place of delivery and transit expenses were not to be added to the wholesale price at factory gate for purpose of duty under the Act.
It is clear from section 4 that the delivery and collection charges have nothing to do with the manufacture as they are for delivery of the filled cylinders and collection of the empty cylinders.
These charges have to be excluded from the assessable value.
Insofar as the loading charges incurred for loading the goods within the factory are concerned, they are to be included in the assessable value, irrespective of who has paid for the same, but the loading expenses incurred outside the factory gate are excludible.
Duty of excise is a tax on the manufacture, not a tax on the profits made by a dealer on transportation.
[690F H; 691A] 2.
In the instant case, there is a clear finding that the ex factory price was ascertainable.
If once that is the position that should be the basis upon which the value is to be determined, the other expenses, costs or charges must be excluded.
[693B] Union of India & Ors. etc.
vs Bombay Tyre International Ltd. etc.
; , referred to.
[This Court observed that the Tribunal 's order stood modified accordingly and directed the Assistant Collector to re fix the assessable value as indicated in this judgment. ] [693C]


judgement:
N: Criminal Appeal No. 238 of 1988.
From the Judgment and Order dated 4.8.1986 of the Punjab and Haryana High Court in Criminal Appeal No. 329 DB of 1986 and Murder Reference No. 2 of 1986.
Mrs. Urmila Kapoor and Ms. section Janani for the Appellant.
R. section Suri for the Respondent.
The Judgment of the Court was delivered by OJA, J.
This appeal has come to this Court on grant of leave against the conviction of the appellant under Section 302 and sentence of death and also his conviction under Section 201 IPC and sentence of 7 years rigorous imprisonment and fine of Rs.200 awarded by Sessions Judge, Ferozepur and confirmed by the High Court of Punjab & Haryana.
The appellant is convicted for having committed the murder of his father and son.
It is alleged that deceased Banta Singh father of the present appellant owned 4 5 killas of land situated at Ferozepur Road where a tube well was also installed by the side of a samll kotha where he alongwith his grandson Seva Singh used to live away from the house where the appellant resided.
It is alleged that Seva Singh was crippled and used to move about on a tricycle Banta Singh and Seva Singh used to go to Gurudwara of their village to render services.
Banta Singh had only one son i.e. present appellant whereas the appellant had a son Seva Singh the deceased from his first wife (since deceased).
Later he married second time and had two children, but she also died.
At present he has the third wife and with her, he has two sons.
616 It was alleged, as motive for the offence, that the appellant used to quarrel with his father and son in connection with land owned by father as the latter wanted to transfer his land in the name of Seva Singh who used to live with the grandfather.
According to the prosecution a day prior to Amawasaya of Chet 1985 (May 1985) when Nihal Singh (PW 2) was rendering services with Banta Singh and Seva Singh at Gurudwara at about 5 p.m. the appellant went to the Gurudwara and told his father and son that in the evening a truck of Car Seva would come from Fazilka and that they would go to Amritsar to take the holy bath.
On this representation, appellant took Banta Singh and Seva Singh from the Gurudwara.
It is alleged that on the same day at about 10 p.m. when Nihal Singh was proceeding to his fields for guarding his tubewell he met the accused on the way and found carrying dang with him.
On being questioned by Nihal Singh as to why he was there and why he did not go to Amritsar, the appellant replied that Banta Singh and Seva Singh were sent to Amritsar by him in a truck of Car Seva.
It is further alleged that when Nihal Singh did not see for sometime Banta Singh and Seva Singh he felt suspicious and lodged a report dated 10 October 1985 in the Police Station Mamdot.
That became the FIR (exhibit PG).
S.I. Puran Singh who recorded the statement of Nihal Singh raided the house of the appellant who it is alleged was not present.
On 13 of August 1985, it is alleged that the appellant made an extra judicial confession to one Amrik Singh and Amrik Singh produced the appellant before the Police.
On 15 August, 1985, a memorandum under Section 27 of the evidence Act was recorded by the Investigating officer at the instance of the appellant and later the dead bodies of Banta Singh and Seva Singh were recovered from a field.
It is also alleged that at that time there was a Jhinjan crop standing in the field.
The dead bodies were identified by one Channan Singh who was a Panch witness.
The tricycle and other articles were recovered from the Kotha at the instance of the appellant.
On the basis of this evidence, the courts below convicted the present appellant.
The circumstances which have been found against the appellant are: (i) Last seen with the deceased at the Gurudwara by.
Nihal Sing (ii) extra judicial confession made to Amrik Singh (iii) the statement under Section 27 leading to discovery of dead bodies and (iv) recovery of tricycle and other articles from the Kotha where the two deceased used to reside and the motive alleged against the appellant.
617 Learned counsel for the appellant contended that as against the motive is concerned.
the appellant at the trial had produced a will A executed by deceased Banta Singh wherein he has given away all his lands to the appellant.
In the cross examination of prosecution witnesses it was suggested that . that his brother in law Manjit Singh was interested in getting the property transferred in his name or in his wife 's name.
It was also argued that extra judicial confession even otherwise is a very weak piece of evidence and in this case it is strange that the appellant chose this Amrik Singh to make an extra judicial confession and the reasons suggested by Amrik Singh also do not appear to be justifiable.
Similarly it was said that the recovery of dead bodies and the memorandum of the statement leading to the discovery are of no consequence as even according to the Investigating officer he had learnt from Amrik Singh that the dead bodies were in the field but he felt that the information he had got was not sufficient and therefore he recorded the information under Section 27 given by the appellant.
In our opinion, these contentions are well founded and must be accepted as correct.
The field where the bodies were recovered is an open place.
It is alleged that there was Jhinjan crop standing in the field and prosecution has not led any evidence to indicate as to who was in possession of the field and who cultivated the crop which was standing at that time.
We will discuss this part of the case in detail a little later.
It is very significant to note that according to the medical opinion bodies were recovered about three months after the death.
The bodies were found disintegrated.
It was difficult to identify.
The disintegration has gone to such an extent that the bodies could not be removed and sent for postmortem and therefore medical expert was called to the spot to perform the postmortem.
The prosecution did not examine any one of the relatives or the daughter of deceased Banta Singh or the son in law Manjit Singh to identify the dead bodies although it has appeared in evidence that during the trial Manjit Singh was present in the Court.
As to the extra judicial confession, it may be noted that Nihal Singh claims to be a person who had seen the deceased Banta Singh and Seva Singh alongwith the appellant in the month of May in the Gurudwara.
On the same night he again met the appellant and enquired about them.
The witness also stated that when he did not see the old man for some time, he became suspicious about the missing of those two persons.
This witness in order to justify his meeting with the appellant at 10 P.M.
On that day said that although his own land was at 618 a distance, he had taken some land on lease which was adjacent to the land of the appellant and so he had to go near the appellant 's house.
But in cross examination he had to admit that for the lease he had no document to support.
The prosecution has suggested that the appellant did not search for his father, but according to the appellant, the deceased had been taken away by Manjit Singh to their place on the pretext that Manjit Singh 's wife i.e. the appellant 's sister was not well and this was also put in cross examination to Nihal Singh.
In the absence of evidence of Manjit Singh, the suggestion of the appellant cannot be brushed aside.
On 10 August, 1985 F.I.R. was lodged by Nihal Singh (PW 2)1 and on 13.8.85 the appellant went to Amrik Singh (PW 3) to make an extra judicial confession.
Amrik Singh says that the appellant told him that as the Police was after him he had come and confessed the fact so that he might not be unnecessarily harrased.
There is nothing to indicate that this Amrik Singh was a person having some influence with the Police or a person of some status to protect the appellant from harrassment.
In his cross examination he admits that he is neither the Lumbardar or Sarpanch nor a person who is frequently visiting the Police Station.
He further admits that when he produced the appellant there was a crowd of 10 to 12 persons.
There is no other corroborative evidence about the extra judicial confession.
As rightly conceded by the learned counsel for the State that extra judicial confession is a very weak piece of evidence and is hardly of any consequence.
The council however, mainly relied on motive, the evidence of last seen, the evidence of recovery of dead bodies and the conduct of the appellant in not making a report about the missing father and son.
As regards the motive the will in question is sufficient to dislodge it.
An attempt was made by the learned counsel for the State to suggest that even after the will the appellant could have done away with the old man to avoid changing the will.
But the will was executed on 31 December, 1984 and it is a figment of imagination that the murder was committed apprehending that the will likely to be changed.
There is also no evidence to indicate that appellant was not having good relations with his father or that there was ever any trouble between father and the son.
In fact Nihal Singh was asked in cross examination as to whether there was any dispute between the father and son? He had to admit that there was no dispute or difference.
As regards the evidence of last seen it was the case of appellant 619 that Manjit Singh had taken Banta Singh and Seva Singh to his place on the pretext that the wife of Manjit Singh was not well.
There is no evidence led by the prosecution to negative this stand of the appellant.
Manjit Singh has not been examined although it has come in evidence that he was present in the Court when Nihal Singh was examined.
The sister of appellant was also not examined and in the absence of any such evidence to negative this stand of the appellant it could not be said that the prosecution has proved that suggestion was false.
In these circumstances, the presence of deceased Banta Singh and Seva Singh along with the appellant at the Gurudwara on the Amawasaya day in Chet could not be said to be the last seen before the murder in question.
May be, Nihal Singh saw them on that day but it is significant that no other person connected with the deceased has been produced to suggest that he was not seen thereafter.
Therefore, the evidence as to last seen also can not be considered as a piece of circumstantial evidence against the appellant.
Then we are left with the recovery of the dead bodies.
Investigating officer S.I. Puran Singh (PW 8) admitted in cross examination that after recording the statement of Amrik Singh he could not know the correct place where the bodies and other articles were kept buried and concealed.
This clearly indicates that he could get some information from the statement of Amrik Singh.
As seen earlier, the field is an open place surrounded by other fields and according to Nihal Singh the adjacent field is his own as he had taken it on lease and therefore it cannot be said that any one else could not have known about the bodies being buried in the field.
The Investigating officer himself admitted that after recording the statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was not sufficient.
It cannot therefore, be said that the place from where the bodies were recovered was such a place about which knowledge could only be attributed to the appellant and none alse.
Since the exclusive knowledge to the appellant cannot be attributed, the evidence under Section 27 also cannot be said to be a circumstances against the appellant.
As regards the recovery made from the Kotha where the deceased Banta Singh and Seva Singh used to reside there is nothing significant.
The tricycle and other belongings of the deceased were bound to be there and on that basis no inference could be drawn against the appellant.
620 In view of all these circumstances, the charge against the appellant cannot be said to have been proved beyond doubt and the conviction of the appellant Therefore cannot be sustained.
The appeal is therefore allowed.
Conviction and sentence passed against the appellant are set aside.
He is in custody.
He be set at liberty forthwith if not wanted in connection with any other case.
P.S.S. Appeal allowed.

summary:
The appellant was convicted under section 302 read with section 201 IPC for having committed the murder of his father and son.
It was alleged, as motive for offence, that the appellant used to quarrel with his father as the latter wanted to transfer his land in the name of his grandson, who used to live with him.
PW. 2 had deposed that a day prior to Amawasya of Chet 1985 at about 5 p.m. he had seen the two deceased persons at the Gurdwara when appellant went there and told them that he had arranged for their visit to Amritsar, through the car seva truck coming that evening, to take the holy bath.
He had met the appellant that very night at about 10 p.m.
On his way to the fields and enquired of him why he too did not go to Amritsar.
And, that when he did not see the deceased for sometime he felt suspicious and lodged a report with the police on 8th August, 1985, which became the FIR.
On 13th August, 1985 the appellant is alleged to have made an extrajudicial confession to PW. 3, his sister 's husband, who is said to have produced him before the police.
On 15th August, 1985 a memorandum under section 27 of the Evidence Act was recorded by the investigating officer at the instance of the appellant and later dead bodies were recovered from field and identified.
The belongings of the deceased were recovered from the Kotha in the fields, where the deceased used to reside, at the instance of the appellant.
Based on this evidence the appellant was convicted and sentenced to death by the Sessions Court.
That order was upheld by the High Court.
614 Allowing the appeal by special leave, ^ HELD: The charge against the appellant cannot be said to have been proved beyond doubt.
His conviction, therefore, cannot be sustained.
[620] Extra judicial confession is a very weak piece of evidence and is hardly of any consequence.
3 says that the appellant told him that as the police was after him he had come and confessed the fact so that he might not be unnecessarily harassed.
There is nothing to indicate that this witness was a person having influence with the police or a person or some status to protect the appellant from harassment.
There is no other corroborative evidence about the extra judicial confession.
[618D E] As regards the motive, the will was executed on 31st December, 1984 and it is a figment of imagination that the murder was committed apprehending that the will was likely to be changed.
There is also no evidence to indicate that appellant was not having good relations with his father or that there was ever any trouble between father and the son.
[618F G] The evidence as to last seen also cannot be considered as a piece of circumstantial evidence against the appellant.
The case of the appellant was that his brother in law, Manjit Singh, had taken the deceased to his place on the pretext that appellant 's sister was not well.
There is no evidence led by the prosecution to negative this stand.
May be, PW. 2 saw them with the appellant at the Gurdwara on the Amawasaya day in Chet but it is significant that no other person connected with the deceased has been produced to suggest that he was not seen there after.
[619B C] As regards the recovery of dead bodies, the investigation officer himself admitted that after recording the statement of PW. 3 he knew that the bodies were buried in the field but he felt that information was not sufficient.
The said field is an open place surrounded by other fields.
It cannot be said that any one else could not have known about the bodies being buried there.
Since exclusive knowledge to the appellant cannot be attributed, the evidence under section 27 of the Evidence Act also cannot be said to be a circumstance against the appellant.
[619E G] According to the medical opinion, bodies were recovered about three months after the death.
The bodies were found disintegrated.
It was difficult to identify.
The disintegration had gone to such an extent 615 that the bodies could not be removed and sent for postmortem and therefore medical expert was called to the spot to perform the postmortem.
The prosecution did not examine any one of the relatives or the daughter of deceased or his son in law to identify the dead bodies although it has appeared in evidence that during the trial the said son in law was present in the Court.
[617E F] As regards recovery made from the Kotha where the deceased used to reside, there is nothing significant.
Their belonging were found to be there and on that basis no inference could be drawn against the appellant.
[61G H]