Calcutta High Court (Appellete Side)
Manash Forgings Pvt. Ltd. & Anr vs The Commissioner Of Central ... on 3 February, 2023
3.2.2023
ks WPA 11222 of 2017
sl. 31 With
CAN 1 of 2018(Old CAN 662 of 2018)
Manash Forgings Pvt. Ltd. & Anr.
Vs
The Commissioner of Central Excise Audit-
Commissionerate & Ors.
Mr. Arijit Chakraborty,,
Mr. Prabir Bera,
Mr. Debsoumya Basak
Mr. Subhas Ch. Jana
... For the Petitioners.
Heard Mr. Chakraborty, learned Advocate
appearing for the petitioners.
None appears for the respondents.
The subject matter of challenge in the instant writ
petition is an impugned show-cause-cum-demand
notice dated 6th December, 2016 being Annexure P-3
to the writ petition issued by the Deputy
Commissioner of Central Excise (Audit), Circle-
II/respondent No.2. It appears from record that the
instant writ petition was initially moved on 8th of May,
2017 when liberty was granted to the petitioners to
give reply to the impugned show-cause-notice and
directing the respondent authority concerned to decide
on the impugned show-cause-notice after considering
the reply by the petitioners against the said show-
cause-notice. During the pendency of this writ
petition, the respondent concerned has passed the
final order on the aforesaid impugned show-cause-
notice on 31st October, 2017 which has been
challenged by the petitioners by filing an application
being CAN 662 of 2018. It is the case of the
petitioners that the aforesaid impugned order dated
31st October, 2017, passed on the impugned show-
cause-notice is bad in law and is in total disregard of
law laid down by the Hon'ble Supreme Court in the
case of Commissioner of Cus. & C. EX., Nagpur vs.
Ispat Industries Ltd. reported in 2015(324) E.L.T. 670
(S.C.) and petitioners particularly rely on paragraph 19
of the said judgment in support of its contention that
the issue in question is no more res integra that
freight charges are not includible in the assessable
value. In addition to the aforesaid decision of the
Hon'ble Supreme Court, petitioners have relied on
several other decisions in its reply to the impugned
show-cause-notice, which appears from paragraph 10
of the said reply. It appears on perusal of the
aforesaid impugned order dated 31st October, 2017,
that none of the aforesaid decisions referred in
paragraph 10 of the reply filed by the petitioners
against the impugned show-cause-notice has either
been referred or considered in his order passed by the
respondent No.3 on 31st October, 2017.
Paragraph 19 of the judgment of the Hon'ble
Supreme Court in the case of Ispat Industries (supra)
is relevant to this case according to me and which is
quoted hereunder :
"19. A cursory reading of the substituted provision
makes it clear that the concept of "normal value" has
given way to the concept of "transaction value". Thus,
no longer is there a normative price for purposes of
valuation of excisable goods. The actual price that is
paid or payable on each removal of goods becomes the
transaction value. Interestingly, it will be noticed that
under Section 4(3), the place of removal is defined as it
had been defined in the substituted Section 4(by the
1973 Amendment) before its further amendment in
1996. What is conspicuous by its absence in the
present Section is Section 4(2) and sub-section (b)(iii)
in the previous Section 4(after its amendment in
1996). It is clear therefore, that for the second period
in question in the present case, namely, 1.7.2000 to
31.3.2003, the depot, premises of a consignment agent
or any other place from which excisable goods are to
be sold after their clearance from the factory are no
longer places of removal. Also, the definition of
"transaction value" makes it clear that freight or
transportation expenses are not included in
calculating the excise duty payable."
Considering the facts and circumstances of the
case and submission of the petitioners this writ
petition being WPA 11222 of 2017 and CAN 1 of
2018(Old CAN 662 of 2018) are disposed of by setting
aside the impugned order dated 31st October, 2017,
and the matter is remanded back to the respondent
No.3/authority concerned to reconsider the case of the
petitioners and pass a fresh speaking and reasoned
order in accordance with law after giving an
opportunity of hearing to the petitioners or its
authorised representative and particularly taking into
consideration the judgments referred to by the
petitioners in paragraph 10 of its reply dated 25th May,
2017 against the impugned show-cause-notice, within
a period of eight weeks from the date of
communication of this order.
Learned Advocate-on-record of the petitioners shall
communicate this order to the respondent authority
concerned.
( Md. Nizamuddin, J. )
