{"id":131033,"date":"2002-10-24T00:00:00","date_gmt":"2002-10-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-tata-iron-steel-co-ltd-vs-collector-of-central-excise-on-24-october-2002"},"modified":"2018-10-07T16:05:49","modified_gmt":"2018-10-07T10:35:49","slug":"the-tata-iron-steel-co-ltd-vs-collector-of-central-excise-on-24-october-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-tata-iron-steel-co-ltd-vs-collector-of-central-excise-on-24-october-2002","title":{"rendered":"The Tata Iron & Steel Co. Ltd vs Collector Of Central Excise, … on 24 October, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Tata Iron & Steel Co. Ltd vs Collector Of Central Excise, … on 24 October, 2002<\/div>\n
Author: S N Variava<\/div>\n
Bench: S. N. Variava, Brijesh Kumar.<\/div>\n
           CASE NO.:\nAppeal (civil)  508 of 1998\n\nPETITIONER:\nThe Tata Iron & Steel Co. Ltd.\n\nRESPONDENT:\nCollector of Central Excise, Jamshedpur\n\nDATE OF JUDGMENT: 24\/10\/2002\n\nBENCH:\nS. N. VARIAVA & BRIJESH KUMAR.\n\nJUDGMENT:\n<\/pre>\n
(WITH C.A. No. 3530\/1997, C. A. Nos. 987-\n<\/p>\n
996\/1998, C. A. Nos. 2785-2790\/2001, C. A.\n<\/p>\n
Nos. 3002-3003\/2001, C. A. Nos. 3857-\n<\/p>\n
3859\/2001, C. A. No. 4226\/2001, C. A. No.
\n4227\/2001, C. A. 4760\/2001, C. A. Nos. 4541-\n<\/p>\n
4558\/2001, C. A. Nos. 4559-4630\/2001, C. A.\n<\/p>\n
Nos. 4631-4657\/2001 and C. A. Nos. 749-\n<\/p>\n
751\/2002)<\/p>\n
J U D G M E N T<\/p>\n
S. N. VARIAVA, J.\n<\/p>\n
\tSome of these Appeals are filed by the Collector of Central
\nExcise.\t Other Appeals are filed by Iron or Steel Manufacturing
\nCompanies.   In all these Appeals common questions of law arise.
\nTherefore all these Appeals are being disposed of by this common
\nJudgment.\n<\/p>\n
\tBriefly stated the facts are as follows:\n<\/p>\n
Under Section 2(a)(ii) of the Essential Commodities Act, 1955 “iron
\nand steel including manufacture of products of iron and steel” are
\nessential commodities.\t  Section 3 of this Act enables the Central
\nGovernment to control production, supply and distribution of essential
\ncommodities.  One of the manners of control could be by regulating
\nprice at which the essential commodities are to be bought or sold.
\nPursuant to the powers given under Section 3 of the Essential
\nCommodities Act, 1955 the Government of India issued the Iron and
\nSteel (Control) Order, 1956.   Clauses 15 and 17 (b) of the said Order
\nread as follows:\n<\/p>\n
“15. Power to fix price. – (1) The Controller may from
\ntime to time by notification in the Gazette of India, fix the
\nmaximum prices at which any iron or steel may be sold (a)
\nby a producer, (b) by a stockholder including a controlled
\nstockholder and (c) by any other person or class of
\npersons.  Such price or prices may differ for iron and steel
\nobtaining from different sources and may include
\nallowances for contribution to and payment from any
\nEqualisation Fund established by the Controller for
\nequalising freight, the concession rates payable to each
\nproducer or class of producers under agreements entered
\ninto by the Controller with the producers from time to time
\nand any other disadvantages.  The Controller may also, by
\na general or special order in writing, require any person or
\nclass of person enumerated above to pay such amount on
\naccount of allowances for contribution to any Equalisation
\nFund, within such period and in such manner as the
\nController may direct in this behalf:\n<\/p>\n
\tProvided that the Controller may, with the approval
\nof the Central Government, fix maximum prices for sale of
\niron or steel (a) by a producer, (b) by a stockholder
\nincluding a Controller Stockholder and (c) by any other
\nperson or class of persons for export outside India and
\nsuch prices may be different from the maximum selling
\nprices fixed for sale for other purposes.\n<\/p>\n
\tProvided further that the Controller may, with the
\napproval of the Central Government, fix maximum
\ncontroller prices for sale of iron or steel by the Registered
\nProducers and Controlled Stockholders to the
\nmanufacturers of engineering goods for fabricating
\nproducts for export, at prices lower than the maximum
\nselling prices fixed for sale for other purposes.\n<\/p>\n
\t(2) For the purpose of applying the prices notified
\nunder sub-clause (1) the Controller may himself classify
\nany iron and steel and may, if no appropriate price has
\nbeen so notified, fix such price as he considers
\nappropriate:\n<\/p>\n
\tProvided that where any stocks are required by a
\nspecial order of the Controller to be moved from one place
\nto another or are to be sold at a place which is not
\nconnected with any railhead, the Controller may direct that
\nthe maximum prices fixed under sub-clause (1) or (2),
\nshall not apply to such stocks and may, in respect of such
\nstocks, specify the maximum prices at which the iron or
\nsteel may be sold.\n<\/p>\n
\t(3) No producer or stockholder or other person shall
\nsell or offer to sell, and no person shall acquire, any iron or
\nsteel at a price exceeding the maximum prices fixed under
\nsub-clause (1) or (2).\n<\/p>\n
17-B. Power of Central Government to set up
\ncommittees, etc. – (1) For the purpose of giving effect to
\nthe provisions of this order, with respect to any category of
\niron or steel, whether such category is subject to or
\nexempt from the operation of all or any such provisions,
\nthe Central Government may, by notification in the Official
\nGazette, set up, from time to time, such committees,
\nbodies or authorities as it may consider necessary.\n<\/p>\n
\t(2) The committee, body or authority set up under
\nsub-clause (1) shall carry out such functions as may be
\nspecified in the notification under which such committee,
\nbody or authority is set up.”\n<\/p>\n
Thus it is to be seen that what could be fixed is the price. The
\nCommittees which were to be set up were only to carry out such
\nfunctions as would be specified in the Notification under which they are
\nset up.\n<\/p>\n
By a Notification bearing no. SC(1)-1(5)\/71-B dated 7th April,
\n1971, a Joint Plant Committee (JPA) and a Steel Priority Committee
\n(SPC) were set up.  Clause 8 of this Notification reads as follows:
\n“(8) The Committee may determine, announce and list
\nprices (base prices as well as extras) from time to time of
\nall categories of iron or steel not subject to price control
\nunder clause 15 of the Iron and Steel (Control) Order,
\n1956.  The prices so determined will be ex-works prices.
\nThe Controller shall add a fixed element of equalised
\nfreight to the ex-works prices announced from time to time
\nin order to ensure that buyers of steel all over the country
\npay the same railway freight irrespective of the distance
\nfrom the source of supply.   The Committee may take such
\nmeasures as it considers necessary or desirable to ensure
\nthat buyers of iron or steel al over the country pay the
\nsame price.”\n<\/p>\n
It must be mentioned that the Committees constituted under the
\nNotification consisted of a Chairman, i.e. the Iron and Steel Controller,
\none representative of each of the main Steel Plants i.e. one from
\nTISCO, one from the Indian Iron and Steel Company Limited, one from
\nthe Hindustan Steel Limited, Raurkela, one from the Hindustan Steel
\nLimited, Bhilai, one from the Hindustan Steel Limited, Durgapur and a
\nrepresentative of the Railways.\t Thus the majority of members in
\nthese Committees were from the Iron and Steel Companies who are
\nbefore this Court.\n<\/p>\n
\tBy another Notification dated 27th December, 1998 the earlier
\nNotification was amended.  Sub-clauses (9A) and (9B) were added.
\nThese read as follows:\n<\/p>\n
“(9A).\tThe Committee may add an element to the ex-\n<\/p>\n
works prices determined under sub-clause (8) for
\nconstituting a fund for modernisation, research and
\ndevelopment with the object of ensuring the production of
\niron and steel in the desired categories and grades by the
\nmain steel plants.  In the matter of operation of this fund,
\nthe Committee shall perform its functions in accordance
\nwith and subject to, such regulations or directions as may
\nbe issued by the Central Government, from time to time.\n<\/p>\n
(9B).\tThe Committee may also add any other element to
\nthe ex-works prices determined under sub-clause (8) to
\nenable it to discharge its functions and to implement
\nspecific scheme entrusted to it by the Central
\nGovernment.”\n<\/p>\n
\tAt a meeting held by JPC on 16th January, 1992 note was taken
\nof a Notification No. SC\/16(6)\/91.  It was resolved that the members
\nsteel plants would add to their ex-works prices certain elements.  The
\nrelevant Clause of the Notification reads as follows:
\n“(4) The Committee may from time to time require the
\nmember steel plants to add the elements listed below to
\ntheir ex-works prices of all or any of the categories of iron
\nand steel and to remit the same to the Committee within
\nsuch periods as may be specified:\n<\/p>\n
(i)\tan element of price towards the Steel
\nDevelopment Fund for financing schemes,
\nprojects and other capital expenditures for
\nmodernisation, research and development,
\nrehabilitation, diversification, renewals and
\nreplacement, balancing, additions to capacity,
\nmajor new investments or any other programme
\nfor improving the quantum of technology or
\nefficiency of production of Iron and Steel or their
\nquality.\n<\/p>\n
Explanation:  The Committee shall perform its
\nfunctions relating to the Steel Development Fund
\nin accordance with and subject to such orders as
\ndirections or may be issued by the Central
\nGovernment in this behalf from time to time.\n<\/p>\n
(ii)\tan element of price for enabling the Committee to
\ndischarge its functions and to implement specific
\nschemes entrusted to it by the Central
\nGovernment ;\n<\/p>\n
(iii)\tAn element of price towards the Engineering
\nGoods Export Assistance Fund.” (emphasis
\nsupplied)<\/p>\n
Pursuant to this Notification these Companies started adding that
\nelement to their ex-works price.  The Excise Department claims that
\nexcise is payable even on this component.\n<\/p>\n
The questions which therefore arise are (i) whether the elements
\nrequired to be added by the members steel plants, as per the decision
\nof the JPC, are admissible deductions under Section 4(4)(d)(ii) of the
\nCentral Excises and Salt Act, 1944 (hereinafter called the said Act) i.e.
\nwhether they fall within the definition of the term “other taxes” and (ii)
\nwhether such addition, which is a compulsory impost, can be
\nconsidered and be price on which excise duty is payable by the parties.
\nMr. Desai has submitted that the Iron or Steel Companies have
\nto compulsory add this element to the ex-works price.  He submitted
\nthat this therefore is a compulsory exaction.  He relied upon the case
\nof Commissioner of C. Ex., Meerut v. Kisan Sahkari Chinni Mills Ltd.<\/a>
\nreported in 2001 (132) ELT 523 (S.C.).\tIn this case, in the State of
\nUttar Pradesh there was an Act called the Uttar Pradesh Shera
\nNiyantaran Adhiniyam, 1964.  This Act regulated storage, gradation,
\nprice, supply and distribution, in Uttar Pradesh, of molasses produced
\nby the sugar factories.\t Section 8(4) of the Act provided that sugar
\nfactories would be liable to pay to the State Government
\nadministrative charges as may from time to time be notified. These
\nadministrative charges were based on the quantity of molasses sold
\nand supplied by the sugar factories.  Section 5 of the Act enabled the
\nfactories to recover these charges from the person to whom the
\nmolasses were sold.  The question before the Court was whether this
\ncompulsory exaction fell within the term “other taxes” in Section
\n4(4)(d)(ii) of the Central Excise Act.\tThis Court held as follows:
\n“7. Under Section 4(4)(d)(ii) of the Central Excise Act what is to be
\nexcluded from the assessable value is the amount of duty of excise,
\nsales tax and “other taxes”.  Taxes, as such, are not defined in the
\nCentral Excise Act.  If the expression “tax” is to be understood in the
\nabsence of any definition, it would certainly cover any levy.  In D. G.
\nGhose & Co. (Agents) Pvt. Ltd. v. State of Kerala & Anr., 1980(2) SCC
\n410, broad meaning had been given to the expression “tax”.  In such
\nan event, administrative charges would be covered under Section
\n4(4)(d)(ii) as “other taxes” because it is a compulsory exaction made
\nunder an enactment and, therefore, a duty or impost and such impost
\nmust be held to be in the nature of a ‘tax’ covered by the aforesaid
\nprovisions.”\n<\/p>\n
Strongly relying on these observations, Mr. Desai submitted that in this case also
\nthere is a compulsory exaction and therefore such compulsory exaction is in the
\nnature of “tax” and is covered by the words “other taxes” in Section 4(4)(d)(ii) of the
\nCentral Excise Act<\/p>\n
\tMr. Desai also drew the attention of this Court to the case of Ispat Industries
\nLtd. v. Union of India<\/a> reported in (2000) 4 SCC 137. In this case the Petitioner who
\nwas also a manufacturer of iron and steel claimed that they were entitled to financial
\nassistance from the Steel Development Fund.  This Court set out all the relevant
\nprovisions and then held as follows:\n<\/p>\n
“11. As seen above, SDF was created by notification issued
\nunder clause 17-B of the Control Order.\t Main steel plants form the
\nprimary units of the Joint Plant Committee.  It wee only the members
\nsteel plants or the main steel plants who were subjected to add an
\nelement of their ex-works price and remit the same towards SDF.
\nSAIL and TISCO were the member steel plants.  SAIL was having four
\nplants at Bhilai, Bokaro, Durgapur and Rourkela.  Indian Iron and Steel
\nCompany Ltd. subsequently got merged with SAIL.\t By notification
\ndated 16-1-1992 the Central Government withdrew the price
\nrestrictions under the Control Order and thereafter by notification
\ndated 21-4-1994 contributions by the member steel producers towards
\nSDF was also discontinued.  It is the Central Government, which
\nexercises control over SDF though there is no backing of any statutory
\nprovision for creation of SDF.\tThe primary object of SDF was to
\nenable the main steel producers for modernization, research and
\ndevelopment with the object of ensuring the production of iron and
\nsteel in the desired categories and grades by the main steel plants.
\nOther steel producers who were known as secondary producers were
\nnot members of the Joint Plant Committee.  They were not subjected
\nto add an element of ex-works price of steel but could add any
\nelement of their choice and not to make remittance of the same to
\nSDF.  It does not stand to reason as to how these secondary producers
\nare entitled to claim any amount from the corpus of SDF or to get
\nsome directions issued respecting the use of SDF.   The petitioner
\nstarted production only in April 1998 when four years prior to that
\nremittance to SDF had been discontinued.   It is not disputed that the
\npetitioner was not a member of the Joint Plant Committee and did not
\nremit any amount towards the corpus of SDF.  The question is if in
\nthese circumstances the petitioner could advance a claim or exercise a
\nright on SDF in any manner.\n<\/p>\n
\t12.\tIt were the members of the Joint Plant Committee who
\nwere made bound to add an element of ex-works price and to remit
\nthat amount for the constitution of SDF.  It has been stated by the first
\nrespondent, Union of India, through the affidavit filed by the fourth
\nrespondent, Joint Plant Committee, that funds out of SDF were
\ndisbursed to the member steel plants by the SDF Managing Committee
\nas per directions issued by the Central Government from time to time.
\nIt is then submitted that since early 1990s there has been a general
\nrecession in the steel industry.  SAIL had approached the Central
\nGovernment for its financial and business restructuring.  SAIL had
\ntaken over Indian Iron and Steel Company Ltd., a sick company in the
\nyear 1978.  Indian Iron and Steel Company Ltd. is a wholly-owned
\nsubsidiary of SAIL.  The proposal given by SAIL to the Central
\nGovernment contained various components and measures including
\nwaiver of loans from SDF made over to member steel plants which
\nwere under SAIL.  It will be noticed that the amount of SDF was not in
\nfact remitted to the Central Government but was shown as credit to
\nthe Central Government in the books of SAIL and its member steel
\nplants.\t This proposal of SAIL, it would appear, has since been
\naccepted by the Central Government by its letter dated 18-2-2000
\nwhich we have reproduced above.\n<\/p>\n
13.\tWhile there was price control under the Control Order
\nduring the period 1978-94 when the remittance to SDF was made by
\nthe main steel producers, the petitioner was nowhere in the picture
\nand was not subjected to any price control like the main steel
\nproducers.  The petitioner and other steel producers were free to
\nproduce and sell the iron and steel products in the market on the
\nprevailing prices.  It has been pointed that the price fixed by the
\npetitioner of its products was much higher than the control price which
\nincluded elements of SDF. While the collection and remittance to SDF
\nhas been discontinued w.e.f. April 1994, the petitioner made its claim
\nfor the first time in 1999 which would appear to be rather incongruous.
\nIt is submitted that the claim made by the petitioner is not bona fide
\nand the writ petition has been filed with ulterior motives, which are not
\ndifficult to fathom.  SAIL had stressed immediate need for
\nrestructuring and modernizing all the main steel plants.  Due to
\nrecession, SAIL has been passing through a severe financial position
\nand has to suffer a loss of Rs. 1574 crores in 1998-99.\t It has further
\nto suffer the burden of interest to the tune of Rs. 2017 crores per
\nannum for modernization.  In the aforesaid circumstances, the
\npetitioner does not have any right to claim any relief in the writ
\npetition pertaining to utilization of SDF.  It is quite apparent that from
\nthe very nature of the creation of SDF, the manner of remittance to
\nSDF and purpose of its utilization, it is a fund created ultimately for the
\nutilization by the member steel producers only.”\n<\/p>\n
Mr Desai submitted that this case shows that what was being added was an element
\nto the ex-works price and that the exaction was a compulsory exaction.\tHe
\nsubmitted that the manufacturers had no option but to add this element to the ex-
\nworks price and to then remit that amount to JPC and the SPC.  He submitted that
\nthese compulsory exactions were clearly having the nature of a tax.\n<\/p>\n
\tIn order to understand the submission, the provisions of Section 4 of the said
\nAct need to be look at.\t The relevant provisions of Section 4 read as follows:
\n“4. Valuation of excisable goods for purposes of charging of
\nduty of excise.\t  (1) Where under this Act, the duty of excise is
\nchargeable on any excisable goods with reference to value, such value
\nshall, subject to the other provisions of this section, be deemed to be<\/p>\n
(a)\tthe normal price thereof, that is to say, the price at
\nwhich such goods are ordinarily sold by the assessee to
\na buyer in the course of wholesale trade for delivery at
\nthe time and place of removal, where the buyer is not a
\nrelated person and the price is the sole consideration for
\nthe sale:\n<\/p>\n
xxx\t\t\txxx\t\t\txxx
\nxxx\t\t\txxx\t\t\txxx<\/p>\n
(4)\tFor the purposes of this section,-\n<\/p>\n
(a)\t“assessee” means the person who is liable to pay
\nthe duty of excise under this Act and includes his
\nagent;\n<\/p>\n
xxx\t\t\txxx\t\t\txxx
\nxxx\t\t\txxx\t\t\txxx<\/p>\n
(d) “value” in relation to any excisable goods,-\n<\/p>\n
xxx\t\t\txxx\t\t\txxx
\nxxx\t\t\txxx\t\t\txxx<\/p>\n
(ii)\tdoes not include the amount of the duty of
\nexcise, sales tax and other taxes, if any, payable
\non such goods and, subject to such rules as may
\nbe made, the trade discount (such discount not
\nbeing refundable on any account whatsoever)
\nallowed in accordance with the normal practice of
\nthe wholesale trade at the time of removal in
\nrespect of such goods sold or contracted for
\nsale;”\n<\/p>\n
It is thus to be seen that under the said Act excise duty is chargeable on the value of
\nthe goods.  The value is the normal price i.e. the price at which such goods are
\nordinarily sold by the assessee to a buyer, where the buyer is not a related person
\nand the price is the sole consideration for sale.  From the price at which the assessee
\nsells to the buyer the only deductions permissible are those under sub-clause 4(d)(ii)
\ni.e. excise, sales tax and other taxes and in certain cases trade discounts.   It is
\nnobody’s case that the extra element is an excise or a\tsales tax or a trade discount.
\nThe only question is whether it would fall within the meaning of the term “other
\ntaxes”.\n<\/p>\n
\tIn Kisan Sahkari Chinni Mills Ltd.’s case, to give a broad meaning to the term
\n“tax”, reliance was placed upon the case in D. G. Gose and Co. v. State of Kerala
\nwhich is reported in (1980) 2 SCC 410.\tIn D. G. Gose’s case the question was
\nregarding the validity of tax imposed by the Kerala State on buildings by virtue of
\nthe Kerala Building Tax Act, 1975.  The validity of this Act was challenged, inter alia,
\non the ground that this was the tax on the capital value and assessee of an individual
\nor a Company and therefore fell within the scope of Entry 86 of List 1 of the VII
\nSchedule of the Constitution and not under Entry 49 of List 2.\tOn this basis it was
\nurged that the State did not have the statutory authority to impose such a tax.\t In
\ndealing with these questions this Court held as follows:\n<\/p>\n
“5.\tThe word ‘tax’ in its widest sense includes all money raised by
\ntaxation.  It therefore includes taxes levied by the Central and the
\nState legislatures, and also those known as ‘rates”, or other charges,
\nlevied by local authorities under statutory powers.  “taxation” has
\ntherefore been defined in clause (28) of  Article 366 of the Constitution
\nto include “the imposition of any tax or impost, whether general or
\nlocal or special”, and it has been directed that “tax” shall be
\n“construed accordingly”.”\n<\/p>\n
Thus it is to be seen that even though the term “tax” has been given a wide
\ninterpretation to include all monies raised, the levy still has to be by the Central or
\nState legislatures or by some statutory authority.  In Kisan Sahkari Chinni Mills Ltd.’s
\ncase the imposition was under a statute enacted by the State of Uttar Pradesh.\tThus
\nthe levy was by the State.  It was thus held that that levy fell within the definition of
\nthe term “other taxes”.\n<\/p>\n
\tIn the present case, it has already been held by this Court in Ispat Industries’
\ncase that there is no backing of any statutory provision for the creation of these
\nfunds.\tFurther it has already been held, and in our view correctly, that these main
\nsteel plants were the only member steel plants.\t The levy was only on them and the
\nfund was created for the utilization by these member steel plants only.\t  Also to be
\nnoted that even though the Essential Commodities Act empowers regulation of price,
\nit does not empower imposition of any taxes.  The addition of an element to the ex-
\nworks price has no statutory backing or force. It is not by the Central Government or
\nthe State Government or any local authority.  It is a levy by a Committee majority of
\nwhose members are representatives of the steel plants.\tThe purpose of creating
\nfunds is for the benefit of these member steel plants.\t Such a levy, even though, it
\nmay be compulsory can never be “tax”.\n<\/p>\n
\tMr. Desai then submitted that what was being added was an element to the
\nex-works price.\t He submitted that this element cannot be considered to be price on
\nwhich excise duty has to be paid.  It was pointed out to us that, on this question, the
\nCustoms, Excise and Gold (Control) Appellate Tribunal, Delhi (CEGAT, Delhi) had, in
\nthe case of SAIL v. Collector of Central Excise reported in 1997 (90) ELT 502, held
\nthat as the manufacturers were compelled by law to collect this charge over and
\nabove the price without right to appropriate it for themselves and with duty of
\nmaking it over a third party i.e. the JPC, the charges could not be regarded as part of
\nthe consideration for the sale price of the goods.  It was held that these charges
\ncould not be added for determining the assessable value.\n<\/p>\n
\tIt was pointed out that another matter appeared before the Calcutta branch
\nof CEGAT.  The earlier Judgment of CEGAT was shown to the Calcutta branch.  The
\nCalcutta branch in the case of SAIL & Anr. v. Collector of Central Excise,
\nBhubaneswar reported in 1998 (24) RLT 394 (CEGAT) differed with the earlier
\nJudgment and held that this addition was nothing but an element of price and that
\ntherefore the same had to be included in determining the assessable value for
\npayment of excise duty.\n<\/p>\n
\tIn view of these conflicting decisions, the question was referred to a larger
\nBench of CEGAT.\t In the case of SAIL v. Collector of Central Excise, Bhubaneshwar
\nreported in 2000 (119) ELT 249, the larger Bench held that the normal price was a
\nprice at which the goods were ordinarily sold by the assessee to the buyer.  It was
\nheld that if any part of the amount paid by the buyer to the assessee was not to be
\nappropriated by the assessee then consequently that part cannot be termed as value
\nfor the goods.\tIn coming to this conclusion the larger Bench had relied on
\nJudgments of this Court which are set out hereinafter.\n<\/p>\n
\tIn the case of C.I.T. v. Tollygunge Club Ltd. reported in (1977) 2 SCC 790,
\nthe question was whether a surcharge collected by the assessee Club from all race
\ngoers but which had been earmarked for charity could be deemed to be an income of
\nthe assessee and therefore includible in the taxable income of the assessee.  It was
\nheld by this Court that income tax was a tax on income.\t It was held that “income” is
\nwhat reaches the assessee and that it is that income which is intended to be charged
\nto tax under the Income Tax Act.  It was held that every receipt by the assessee is
\nnot necessarily income in his hands.  It was held that the surcharge collected by the
\nassessee was for the purposes of being paid over to local charities.  It was held that
\nthis surcharge was clearly impressed with an obligation in the nature of trust for
\nbeing applied for the benefit of charities.  It was held that this surcharge was
\ndiverted before it reached the hands of the assessee and did not become part of the
\nincome of the assessee.\t It was held that such a surcharge would therefore not be
\nregarded as income assessable to tax.\n<\/p>\n
\tIn the case of C.I.T. v. Bijli Cotton Mills reported in (1979) 1 SCC 496, the
\nquestion was whether certain amounts realized by the assessee on account of
\n“Dharmada” (Charity) in addition to the price from his customers could be stated to
\nbe income in the hands of the assessee which were assessable to income tax.  It was
\nheld by this Court that though amount of “Dharmada” was undoubtedly a payment
\nwhich the customers were required to pay in addition to the price of the goods
\npurchased from the assessee.  It was held that the purchase of the goods was only
\nan occasion and not the consideration for the “Dharmada” amount.  It was accepted
\nthat without payment of the “Dharmada” amount the customer would not be able to
\npurchase the goods from the assessee.  It was held that this did not make the
\npayment involuntary because the purchaser purchased the goods of his own volition.
\nIt was held that the amount of “Dharmada” was being collected for purposes of
\ngiving to charities and were held by the assessee under an obligation to spend them
\nfor charitable purposes.  It was held that these therefore did not form income of the
\nassessee.  It was held that these amounts were not part of the price of the goods but
\nwere payments for specific purpose of being spent on charitable purposes.\n<\/p>\n
\tIn the case of Mohan & Co. v. Collector of Central Excise reported in 1987
\n(30) ELT 624, relying upon the above mentioned two decisions of this Court CEGAT,
\nDelhi held that “Dharmada” (charity) receipts were not includable in the assessable
\nvalue under Section 4 of the Central Excise Act.  Mr. Desai submitted that an SLP
\nfiled against this order was summarily rejected by this Court.
\nMr Desai submitted that all the above authorities including the larger Bench
\ndecision of CEGAT and the decision of CEGAT in Mohan & Co.’s case clearly show that
\nwhen there is a compulsory impost or exaction, the assessee has to collect but the
\nassessee cannot retain for himself and he has to pass on the same, then such a
\ncompulsory exaction cannot be included in the value for purposes of assessing excise
\nduty.  He submitted that such imposts cannot be deemed to be price.  Mr. Desai
\nsubmitted that the minutes of the JPC dated 16th January, 1992 as well as the
\nNotification of the same date, make it clear that what was being added\/levied was an
\nelement to the ex-works price.\tHe submitted that the price remained the ex-works
\nprice.\t  He submitted that the Companies sold to the customers at the ex-works
\nprice.\tHe submitted that the additional amount was merely collected by the
\nCompanies for and on behalf of JPC and SPC.  He submitted that they did not retain
\nthis amount. He submitted that this element could not be considered to be price.\n<\/p>\n
\tOn the other hand, Mr. Rohtagi submitted that the principles under the
\nIncome Tax Act cannot be made applicable to the Central Excise Act.  He submitted
\nthat under the Income Tax Act what is taxable is the actual income received by the
\nassessee for his own benefit.  He submitted, with reference to Section 4 of the said
\nAct, that under the Central Excise Act excise duty is chargeable on the value of the
\ngoods.\tHe submitted that the value is the price at which the goods are ordinarily
\nsold by the assessee to the buyer.  He submitted that therefore the price which the
\nbuyer pays is the price on which excise duty is leviable.  He submitted that from the
\nprice that the buyer pays, the only deductions can be those set out in Section
\n4(4)(d)(ii) of the said Act.   He submitted that this levy is not a “tax” and does not
\nfall within the meaning of the term “other taxes”.  He submitted that this element
\ncannot be deducted from the assessable value of the goods.\n<\/p>\n
\tMr. Rohtagi further points out that the element which has been added is an
\n“element of price”.  He relied upon the Notification dated 16th January, 1992 (which
\nhas been reproduced hereinabove) and points out Clauses 4(i), 4(ii) and 4(iii) which
\nclearly show that what has been added is an element of price.  Mr. Rohtagi
\nsubmitted that this element could only have been added as price because the JPC
\nand SPC are established by virtue of the Iron and Steel (Control) Order.  He
\nsubmitted that the Iron and Steel (Control) Order is based on the Essential
\nCommodities Act and under that Act there was no power to make any levy or impose
\nany tax on a purchaser. He submitted that the addition being an element of price it
\nhas to be included in the assessable value for purposes of excise duty.\n<\/p>\n
\tWe have heard the parties.  In our view, Mr. Rohtagi is right.\tPrinciples on
\nwhich “income” is to be determined under the Income Tax Act cannot apply when
\ndetermining “value” for purposes of Excise Duty.  Under the Income Tax Act, tax is
\npayable on income which reaches the assessee.  On the other hand, Section 4 of the
\nsaid Act shows that excise is payable on the price at which goods are ordinarily sold
\nto the buyer.\tThus the principles on which Bijli Cottons Mills’ case and Tollygunge
\nClub’s case were decided would not be appropriate and would not apply for deciding
\n“value” for the purposes of the said Act.  In our view the decision of CEGAT in Mohan
\n& Co.’s case cannot be said to be good law.\n<\/p>\n
We are supported in our view by the decision in the case of Hindustan Sugar
\nMills v. State of Rajasthan<\/a> reported in (1978) 4 SCC 271.   In this case the question
\nwas whether the assessee was liable to pay Sales Tax on the amount of railway
\nfreight collected by them from the purchaser.\tIt was held that the assessee was
\nbound to pay Sales Tax on such amounts.\t  In the case of E.I.D. Parry (I) Ltd. v.
\nAsst. Commissioner of Commercial Taxes<\/a> reported in (2000) 2 SCC 321 it was held
\nthat the purchase price is the total amount of consideration for the purchase of
\ngoods.\tIt was held that this would include price and also other amounts payable by
\nthe purchaser.\tThese authorities are under the Sales Tax Act.\tThe principles for
\ncomputing value for purposes of Sales Tax are similar to those of computing value
\nfor purposes of Excise Duty.  It is these principles which would apply.
\nIn any event, a plain reading of the Notification makes it clear that what has
\nbeen added is an “element of price”.  Neither JPC nor the SPC could have made any
\ncompulsory exaction from the purchaser.\t They could only regulate prices as the
\npowers which they derived are only those which are conferred on them by the
\nNotification which established them.  Clause 8 of the Notification dated 7th April,
\n1971 only gave a power to determine the prices.\t The amended Clauses (9A) and
\n(9B), which were introduced by Notification dated 27th December, 1978, also
\nempowered them merely to add elements to the ex-works price.  In other words the
\nex-works price could be increased by adding an element to it.  Thus what was being
\nadded was to the price.\t Another aspect to be kept in mind is ultimate beneficiaries
\nof these amounts are the steel plants themselves.\n<\/p>\n
\tIn our view therefore the view expressed by the larger Bench of CEGAT, Delhi
\ncannot be said to be the correct view.\tIn our view, the decision of CEGAT, Calcutta
\nin SAIL v. Collector of Central Excise reported in 1997 (90) ELT 502 is correct.\n<\/p>\n
\tIn this view of the matter, the Appeals filed by the Revenue are allowed.  The
\nAppeals filed by the Companies against the Judgment, in the case of SAIL v.
\nCollector of Central Excise reported in 1997 (90) ELT 502 are dismissed.\n<\/p>\n
\tWe are told that in some of the matters the question of a proper calculation of
\nthe duty also arises.  We are told that CEGAT did not undertake the exercise of
\nproper calculation as they held in favour of the assessee. In those cases where a
\nquestion of re-calculation arises, the matters will necessarily stand referred back to
\nCEGAT for determination of the exact amounts in accordance with law.  Parties to
\njointly intimate the Office, a list of such matters.  In case of dispute liberty to apply.\n<\/p>\n
\tWith these directions the Appeals stand disposed of.  There will be no order
\nas to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Tata Iron & Steel Co. Ltd vs Collector Of Central Excise, … on 24 October, 2002 Author: S N Variava Bench: S. N. Variava, Brijesh Kumar. CASE NO.: Appeal (civil) 508 of 1998 PETITIONER: The Tata Iron & Steel Co. Ltd. RESPONDENT: Collector of Central Excise, Jamshedpur DATE OF JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-131033","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Tata Iron & Steel Co. 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