Asia Tobacco Company Ltd. vs Assistant Collector of C. Ex.

This writ petition has been referred for disposal to a Large Bench by the learned Single Judge and that is how the matter is before the Division

Bench.

The petitioner company is engaged in the manufacture of cigarettes. It has taken out a licence under the Central Excises and Salt Act, 1944. The

company has been entering into agreements with M/s. India Tobacco Co. (hereinafter referred to as I.T.C.) for manufacturing cigarettes for it to be

sold under the brand name of I.T.C. The petitioner filed a price list and claimed that the assessable value of the cigarettes was at Rs. 2.50 per

1000 claiming those to be conversion charges received from the I.T.C. and requested the authorities to treat the conversion charges only as the

assessable value under Sec. 4 of the Act for payment of duty. The Asstt. Collector of Central Excise, Hosur by his order dated 16-12-1982 did

not agree and held that the value of the cigarettes had to be assessed on the basis of the value declared by I.T.C. in respect of similar brands of

cigarettes manufactured by them and approved by the department from time to time. Aggrieved by that order, the petitioner has come up to this

Court by this writ petition.

Though in the writ petition, a number of pleas have been raised, at the time of argument, Mr. Habibullah Badsha, learned senior counsel for the

petitioner confined his challenge to the assessment order only to the basis on which the assessable value had been calculated by the Assistant

Collector of Central Excise, Hosur. Learned counsel submitted that by considering the value declared by the I.T.C. in respect of similar brands of

cigarettes manufactured by them, the Assistant Collector in effect had added to the manufacturing cost of the writ petitioner even the post-

manufacturing profit, etc. of the I.T.C. and that was not permissible in law. Learned counsel in support of his submission relied upon the judgment

of the Supreme Court reported in 1989 (39) ELT 439 wherein the Bench has held that while determining the assessable value, the conversion

charges had to be included to the cost of the raw material, manufacturing profit and expenses and nothing more. Learned counsel appearing for the

respondents relied upon the judgment of the Jammu & Kashmir High Court reported in J.K. Cigarettes Ltd. Vs. Superintendent of Central Excise,

in support of his submission that the writ petitioner is a manufacturer of cigarettes and since the taxable event under the excise law is manufacture,

the writ petitioner was liable to be assessed on the basis of the actual assessable value of the cigarettes manufactured by it and that its plea before

the Assistant Collector that it had to be assessed only on the quantum of the conversion charges was mis-conceived.

We have given our anxious consideration to the contentions raised at the bar.

Taxable event under the excise law is the manufacture or production of the goods. The manufacture of taxable goods is by itself sufficient to

attract excise duty and the obligation to pay excise duty arises on the manufacture of taxable goods. The department has, therefore, to recover the

excise duty from the manufacturer, who is liable to be assessed on the basis of the actual assessable value of the cigarettes manufactured by it and

not only on the basis of ""job charges"" or ""conversion charges"". This was the view taken by the Jammu & Kashmir High Court in the decision

reported in J.K. Cigarettes Ltd. Vs. Superintendent of Central Excise, In fairness to Mr. Habibullah Badsha it must be noted that though before the

assessing authority a different plea had been raised, he did not controvert the proposition of law as laid down in J.K. Cigarettes case (supra). He,

on the other hand, confined his submission only to the method of calculation for the purpose of assessment of assessable value of the manufactured

goods.

In a case like the present one, the method of valuation for the purpose of assessment of duty has been clearly laid down in the Ujagar Prints

case [1989 (39) ELT 439] supra by the Supreme Court. In that case, the Supreme Court has observed as follows :-

The price at which he is selling the goods must be the value of the gray cloth or fabric plus the value of the job work done plus the manufacturing

profit and the manufacturing expenses; but not any other subsequent profit or expenses. It is necessary to include the processor''s expenses, costs

and charges plus profit, but it is not necessary to include the trader''s profits who gets the fabrics processed, because those would be post-

manufacturing profits.

The Assistant Collector, however, determined the taxable value by taking into account the price at which the I.T.C. sells the cigarettes. By doing

so, it appears to have included the trade''s profit. That could not be done. The question as to what is the value at which the petitioners would be

deemed to be selling the goods manufactured by it is essentially a question of fact to be determined by the assessing authority. The factors which

are relevant for that determination have been spelt out by the Supreme Court in Ujagar Prints case [1989 (39) ELT 439] (supra). The assessing

authority was right in refusing to assess the petitioner only on the basis of ""conversion charges"", but it failed to arrive at the assessable value after

taking the relevant factors into consideration. The assessing authority has to determine the ""selling price"" of the cigarettes at the hands of the

petitioners to determine the actual assessable value with a view to levy and recover the excise duty. That exercise has not been properly done. We,

therefore, allow this writ petition and set aside the order of the Assistant Collector, Central Excise, Hosur dated 16-12-1982 and remit the case to

him for a fresh disposal in the light of the observations made therein above and in accordance with law. The assessing authority will complete the

assessment proceedings expeditiously. There will be no order as to costs in this petition.