IMPORTANT POINT
Valuation once accepted under clause (a) of Section 4(1) of the Central Excise Act, 1944 and there being no vitiating factor, no recourse can be had to valuation under clause (b) of Section 4(1) is a settled position of law.

Headnote:Central Excise Act, 1944-Section 11A read with 4-Revenue issuing show cause notice dated June 30, 1985 for recourse to valuation under clause (b) of Section 4(1) in paragraphs (14) to (18) of notice-Valuation once accepted under clause (9) of Section 4 and there being no vitiating factor, assessee filed writ petition-High Court quashed the paragraphs (14) to (18)- Appeal to Supreme Court-Whether the High Court is justified in quashing paragraphs (14) to (18) of the impugned show cause notice dated June 30, 1985? (Yes)- Appeal dismissed.
       Held (on interpretation of S. 4) : Admittedly, in this case, all the requirements of clause (a) are fulfilled; the buyer is not a related person and this is a common ground that the price is the sole consideration for sale. The goods in question are, therefore, assessable to excise duty with reference to the normal 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 of removal. In the instant case, it is not pointed out to us that there is anything to suggest in paragraphs (14) to (18) that either the buyer was a related person or that the price was not the sole consideration or there was other vitiating circumstance to doubt the normal price of the wholesale trade. If that be so, recourse to clause (b) of sub-section (1) of Section 4 could not be had. We have so held in Civil Appeal No. 9140 of 1996 on March 27, 2003. It is not disputed that the allegations contained in paragraphs (14) to (18) proceed on the basis as if the valuation of the goods ought to be under clause (b) ignoring the provision of clause (a) of sub-section (1) of Section 4. There being no valid foundation for ignoring the price under clause (a) of sub-section (1) of Section 4, the authority lacks jurisdiction to issue notice calling upon the assessee to show cause in the matter. (Paras 10 & 11)
       For these reasons, we find no merit in the appeal. The civil appeal is dismissed but in the facts and circumstances of the case, we make no order as to costs. (Para 14)

JUDGMENT

Syed Shah Mohammed Quadri, J.-The Union of India [for short, the Revenue ] is in appeal against the judgment and order of the High Court at Allahabad in Civil Miscellaneous Writ Petition No. 1102 of 1995 passed on January 1, 1996.

2. The short question that arises for consideration in this appeal is, whether the High Court is justified in quashing paragraphs (14) to (18) of the impugned show cause notice dated June 30, 1995.

3. The facts giving rise to this appeal may briefly be noted.

4. The respondent-assessee manufactures aluminium and its products. The goods manufactured by the assessee were cleared on the basis of valuation under Section 4(1)(a) of the Central Excise Act, 1944 [for short, the Act ] during the period 1990-91. On June 30, 1995, the Revenue issued show cause notice purporting to be under Section 11-A of the Act demanding duty in a sum of Rs. 45.98 crores on the allegation that due to clandestine removal of the goods and incorrect valuation of the goods, there has been non-levy and short-levy of the excise duty. The assessee, without replying to the show cause notice, challenged the same before the High Court in the afore-mentioned writ petition on November 24, 1995. Insofar as paragraphs (1) to (13) of the show cause notice which related to the clandestine removal of the goods are concerned, the High Court dismissed the writ petition, the assessee was directed to submit its reply within thirty days thereof and the Revenue was directed to decide the matter by a speaking order. There is no appeal by the Revenue on that aspect.

5. In regard to that part of the show cause notice which relates to valuation of the goods, mentioned in paras (14) to (18), the High Court took the view that no inquiry could be made by the appellant with regard to the aspects stated thereunder. Thus, the writ petition was disposed of on January 1, 1996. It is that order of the High Court which is assailed before us in this appeal.

6. Mr. T.L.V. Iyer, learned senior counsel appearing for the Revenue, contends that this Court has deprecated the practice of entertaining writ petitions at the stage of show cause notice. He further contends that, in any event, once it and, therefore, the High Court ought not to have decided the case on merits at the stage of the show cause notice is found that the authority had jurisdiction to issue show cause notice under Section 11-A of the Act, no writ of prohibition ought to have been issued in respect of the alleged incorrect valuation of the goods.

7. Mr. K.K. Venugopal, learned senior counsel appearing for the respondent, contends that in regard to valuation, it is the settled position, by a catena of decisions of this Court, that clause (b) of sub-section (1) of Section 4 cannot be invoked when the goods are sold in the wholesale trade and that they are to be valued under clause (a) of sub-section (1) on the basis of normal price thereof, therefore, the authority had no jurisdiction to issue the notice and the High Court has rightly issued the prohibition in regard thereto. His further submission is that if two causes are clubbed in one notice, one without jurisdiction and the other with jurisdiction, the writ petitioner cannot be denied remedy in the other cause on the sole ground that in one cause the authority was held to have jurisdiction in the matter.

8. Section 11-A of the Act, inter alia, empowers a Central Excise Officer to serve a notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid to show cause why he should not pay the amount specified in the notice.

9. Section 4 of the Act is the charging section. Insofar as it is relevant for our purpose, it reads as under:

"4. Valuation of excisable goods for purposes of charging of duty of excise. (1) Where under this Act, 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

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2003 Supreme(SC) 411

IMPORTANT POINTValuation once accepted under clause (a) of Section 4(1) of the Central Excise Act, 1944 and there being no vitiating factor, no recourse can be had to valuation under clause (b) of Section 4(1) is a settled position of law.

IMPORTANT POINT
Valuation once accepted under clause (a) of Section 4(1) of the Central Excise Act, 1944 and there being no vitiating factor, no recourse can be had to valuation under clause (b) of Section 4(1) is a settled position of law.