Syed Sadat Abdul Masud, J. - (1.) In this writ petition the petitioner company has challenged the validity of orders of assessment for each year commencing from 1971 till March 1973 purported to have been made under the Central Excises and Salt Act 1944. The petitioner has also prayed for an appropriate writ directing the respondents to refund a sum of Rs. 5,90,362/ - which according to the petitioner is the Excise duty demanded and received by the respondents for the period between May 29, 1971 to March 15, 1973. The facts of the case according to the petitioner may briefly be stated as follows : - * * * *
(2.) The petitioner company manufactures and sells coated abrasives and grinding wheels. It organises sale and its articles from its Head Office at Calcutta as also from its branch offices at Delhi and Madras. The petitioners products are sold to distributors and/or dealers to whom a trade discount of 41.24% and 22.5% were allowed in respect of the said coated abrasives and grinding wheels respectively. The petitioner also sells its products directly to consumers and such sales comprise 68% of its products. It also stated in the petition that approximately 38% of such manufactured goods were sold to the wholesale dealers of distributors. For the first time the said coated abrasives and grinding wheels were made excisable goods by adding as Item No. 51 by Notification issued on May 29, 1971 within the purview of Central Excises and Salt Act, 1944. By the said Notification 10% ad valorem excise duty on the said two categories of goods was levied under the Finance Act of 1971 in as much as the said goods were manufactured with the aid of power. Since the introduction of the levy of excise duty the excise department has been levying and collecting the said duty on the gross price of the manufactured goods pending final assessment. On December 16, 1971 the Assistant Collector of Excise assessed the petitioner's products for the levy of the excise duty in the following way : - (a) abrasive sheets item gross price less 12% trade discount less 3% cash discount under Sec. 4(a) of the said Excise Act. (b) grinding wheels and other bonded products gross price list less 12½" trade discount under the said Sec. 4(a). The aforesaid order of the Assistant Collector was varied by the Superintendent of Central Excise who made his own assessment on the value of the said goods as under : (a) Abrasive sheet Item gross price less 12½% trade discount with no provision for cash discount. (b) Grinding wheels and other bonded products gross price list less 5% trade discount only.
(3.) Since October 1971 the petitioner under the Self Removal Scheme has been submitting to the Excise Officers for their approval a list of articles in the approved form under Rule 173B of the Central Excise Rules, 1944 and also has been filing such forms for the approval of the price lists in accordance with Rule 173C of the said Rules. The assessment under the Self Removal Procedure is made on the basis of the petitioners statement in form R.T. 12 which represents the monthly assessment memorandum in respect of clearance of the manufactured goods. According to the petitioner from 29th May, 1971 till now the respondents have been levying and determining the excise duty on the basis of the manufacturing costs, manufacturing profits and also costs of post -manufacturing operations and selling profits after allowing the rate of trade discount. According to the petitioners they discovered the mistake that the excise duty cannot be leviable on costs of post manufacturing operations and selling profits. This error of law came to the petitioner's knowledge in December 1972 when the Supreme Court delivered the judgment in A.K. Roy and Anr. v/s. : 1973ECR60(SC) hereinafter described as the Voltas case. On March 23, 1973 the petitioner asked the respondents to exclude the costs of post -manufacturing operations and selling profits from the assessable value of the petitioner's goods for the purpose of levying of excise duty under Sec. 4 of the said Excise Act. In this letter the petitioner also demanded justice for the determination of the wholesale cash price under Sec. 4 of the said Excise Act. The petitioner filed this application on April 3, 1973.;