Masud, J. - (1.) In this Writ Petition Messrs. Electric Lamp Manufacturers (India) Private Limited (hereinafter referred to as ELMI) has prayed for an order in the nature of Mandamus directing the respondents to assess-and recover excise duties under Section 4 of the Central Excises and Salt Act, 1944 on the manufacturing costs and manufacturing profits of the product of ELMI and also for an order restraining the respondents from levying and collecting any duty ELMI on the post manufacturing costs including selling costs or profits. The ELMI has also asked for a direction on the respondents to refund to it the sum of Rs. 1,98,40,969.67 and interest on the ground that the said sum had been illegally demanded and collected from ELMI from 1961 till today. The facts of the case as set out in the petition may briefly be stated as follows :-
(2.) ELMI is a manufacturer of diverse electric lamps including fluorescent lamps and bulbs. The petitioner has been selling its products only to a limited number of customers such as "Philips India Limited", Central Electric Company (India) Ltd. and Crompton Greaves Limited etc. The products are sold to these companies in accordance with their orders and specification in their respective brand names, "Philips," "Osram", "Mazda" and "Crompton" etc. The price at which ELMI sells its goods to these customers includes the actual manufacturing cost and manufacturing profits. These customer-companies sell the products of ELMI in their respective brand names through their own sales organisations. Each of these customer-companies has got its own separate dealer or distribution arrangements. In or about 1955 excise duty was first levied on the products of the petitioner on "specific basis, that is to say, fixed sum of money for a fixed number of say 100 lamps. Since 1961 the excise duties were being collected by the respondents on ad valorem basis excepting ministure pre-focus lamp which was continued to be assessed on specific basis till March 16, 1972. The excise duty was being levied under Section 3 of the said Act on ad valorem basis. The petitioner's definite case is that the levy of excise duty on their products over anything more than manufacturing cost and manufacturing profits was and is illegal. The petitioner has all along been paying the excise duties as assessed and demanded by the respondents on the mistaken belief that the duty was payable also on the selling expenses incurred and selling profits made by the said customer companies. Since 1968 the petitioner has been-filing with the piopet office under the respondents the price list in accordance with Rule 173B of the Central Excise Rules, 1944 for their approval. After approval of the list the petitioner allowed the said customer companies to remove the goods and the duty payable thereon is debited to the petitioner's account against the advance deposit in the account of the petitioner with the Reserve Bank of India at its Calcutta Office. The assessable value of the petitioner company has all along been determined by the respondents not on its' selling price to its customer companies but on the said customer-companies price list less the trade discount. The petitioner has now filed this application on the basis of the judgment of the Supreme Court in A.K. Roy and Anr. v. Voltas Limited A.I.R. 1973 S.C. 225 herein described as "The Voltas case". According to Mr. Subroto Roy Chowdhury, Counsel for the petitioner, respondents are entitled to levy duty only on the manufacturing costs and manufacturing profits of the petitioner company. The levy of excise duty on the basis of the price list of the customer-companies, according to the petitioner, is unwarranted in law.
(3.) The petitioner has, therefore, prayed for refund of the said sum of Rs. 1,98,40,969,67 with interest on the ground that the said duty was illegally collected from the petitioner since 1961 on the basis of the sale price of the Customer Companies which is much higher than the sale price of the products of the petitioner company assessed on the basis of manufacturing cost and manufacturing profits only. It is also contended that the petitioner-company, a registered dealer under the West Bengal Sale Tax Act, has been regularly paying the sales tax on the same transaction between the petitioner company and the said customer companies.;