ivil Appeal Nos
1430 36NM of 1987
From the Judgment and Order dated 2341987 of the Custom Excise and Gold Control Appellate Tribunal South Regional Tri 159 bunal Madras in Appeal Nos 174 to 176 and 240 to 243 of 1986 MAS in Order No 247 of 1987
Anil B Divan HK Dutt section Ramasubramanium Krishna Srinivasan and Ms Midula Ray for the Appellant
AK Ganguli A Subba Rao and P Parmeshwaran for the Respondent
The Judgment of the Court was delivered by KANIA J
These appeals arise from a judgment of the Customs Excise and Gold Control Appellate Tribunal South Regional Bench at Madras
The facts necessary for the disposal of these appeals are as follows
The appellant is a manufacturer of motor vehicle parts falling under Item 34 A of the Central Excise Tariff and components for IC Engines falling under Item 68 of the said Tariff
The period with which we are concerned in these appeals is the period from October 1 1975 to July 21 1984
The marketing pattern of the appellant was that they sold goods in the wholesale to OE manufacturers Transport Undertakings and Government Bodies
The requirements of the replacement market were met by the appellant by sale in the wholesale to other persons who were designated by the appel lant as distributorsprimary wholesale buyers on the basis of agreements with such distributors
The amendment to section 4 of the herein after referred to as the Central Excises
Act came into force from October 1 1975 and as from that date the Department took the view that sales by the appellant to its distributors would be considered as sales to related per sons
The Department therefore directed the appellant to file price lists in in the form prescribed for sales to related persons
The appellant filed the price lists in  and The price lists filed in related to sales to industrial buyers Government Bodies and so on who were admittedly not related persons regarding the appellant
These price lists were duly approved 
It was regarding the price lists filed under that the Assistant Collector on the basis of the aforesaid view directed the appellant to file revised price lists showing a discount of 12 12 from the price at which the goods sup plied by the appellant were sold by their distributors to independent buyers
The appellant complied with this direc tion under protest taking up the contention that the dis tributors were also a class of independent buyers
This claim was rejected by the Assistant Collector who took the view that the distributors 160 were related persons and hence the prices charged by these distributors to their purchasers should be taken as the assessable value
This was contested by the appellant before the Collector Appeals who by his order dated July 27 1984 took the view that the distributors were not related per sons on the basis of the decision of this Court in the case of Union of India  Ors
vs Bombay Tyres International Ltd The appellant applied for a refund on the ground that the excise duty had been collected from the appellant on the footing that the distributors were related persons and that in view of the finding that the distribu tors were not related persons the excess amount should be refunded to it
This contention was rejected by the Assist ant Collector and on the ground that except in respect of sales to wholesale distributorsprimary wholesellers and OE manufacturers the excise duty had been paid by the appellant voluntarily
Against this decision the appellant preferred an appeal to the Tribunal
The Tribunal however confirmed the view of the Assistant Collector on the ground that the other modes of sale like depot transfers retail sales direct dealer sales sales to transport undertakings and sales to Government bodies like transport undertakings had not figured as issues for determination before the excise authorities and the protest made by the appellant was only in respect of the assessable value regarding the said two categories of sales to wholesale distributors primary wholesellers and to OE manufacturers
On the basis of these conclusions the Tribunal dismissed the appeal of the appellant The present appeals are directed against this decision of the Tribunal
It was submitted by Mr Divan learned counsel for the appellant that the decision of the Tribunal was erroneous and liable to be set aside as for purposes of levy of excise duty on the sales in question only one price can be treated as the normal price and as the distributors were held not to be related persons it was the wholesale price at which the goods were sold by the appellant to the dis tributors which must be held to be the normal price
It was pointed out by him that all the circumstances show that the payment of excise duty was made under protest and that the returns were originally filed only on the basis of the single normal price namely the price at which the goods were sold by the appellant to its distributors
Learned counsel drew our attention to the provisions of section 4 of the Central Excises Act
The relevant part of section 4 runs as follows 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 161 to value such value shall subject to the other provisions of this section be deemed to be a the normal price thereof that is to say the price at which such goods are ordinarily sold by the asses see to a buyer in the course of wholesale trade for delivery at the time and place of removal where the buyer is not a related person and the price is the sole consideration for the sale
 We are not concerned with the proviso to this section for the purposes of this appeal
Learned counsel submitted that the language of section 41 suggests that there can be only one normal price for sales to independent distributors
Learned counsel for the appellant also drew our atten tion to the decision of this Court in Indian Oxygen Ltd vs Collector of Central Excise It has been observed by this Court in that judgment as follows para 6 of the said report It is necessary to reiterate that value for assessable goods must be determined in term of section 4 of the Act
The said section 41 provides that where 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 to be the normal price thereof that is to say the 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 where the buyer is not a related person and the price is the sole consideration for the sale
 It may be noted that in the present case there was no contention that there was any consideration for the sale other than the price
In India Cements Ltd vs Collector of Central Excise  a Division Bench of this Court has taken the view that no particular form is prescribed for making up of protest
In that case the Court took the view that an ordinary reading of the letter sent by the appellant showed that the appellant was not accepting the liability without protest and in view of this the letter must be held to be in the nature of a protest
The Division Bench further held that in view of this the question of limitation does not arise for refund of the duty para 10 of the said report
162 It was submitted by learned counsel for the appellant that in the present case the letter of protest sent by the appellant on a commonsense reading thereof covered the entire payment of excise duty in those cases where the normal price was fixed on the footing that the distributors of the appellant were related persons and submitted that in view of this no question of limitation would arise in con sidering the application of the appellant for refund
The learned counsel drew our attention to the decision of the Special Bench of the Tribunal in Collector of Central Ex cise Madras vs Ashok Leyland Ltd Madras 1987 29 ELT 530 where on similar facts a Special Bench of the Tribunal had taken the view that even removals for captive use and retail sales had to be assessed at the normal price avail able at the time and place of removal from their main deal ers
The contention of the Department in that case that the removals were not the subject matter of the original adjudi cation by the Assistant Collector and hence the assessments had become final was rejected
In our opinion the submission on behalf of the appel lant is well founded
In view of the fact that the distribu tors of the appellant were finally held not to be related persons regarding the appellant in cases where excise duty has been levied on the footing that the distributors of the appellant were related persons and hence the price at which the goods were sold to them could not be regarded as the normal price and the excise duty collected in respect of the difference between the price at which the goods were sold by the appellant to its distributors and the price at which the said goods were sold by the distributors to independent buyers calculated as aforestated must be held to be excess levy
The protests filed by the appellant clearly took up the contention that its distributors could not be regarded as related persons and hence the protests lodged by the appellant must be held to cover all cases where the price at which the appellant sold its goods to its distributors was not regarded as the normal price on the ground that the distributors were related persons
It was submitted by Mr Ganguly learned counsel for the respondent that the protest made by the appellant must be read as limited to the cases of sales by the appellant to its wholesale distributorsprimary wholesellers and to OE manufacturers and that the other categories of sales like stock transfers clearances to retail sellers and other wholesale sales to purchasers other than distributors must be held not to be covered by the protests
He placed strong reliance on the observation of this Court in Assistant Collector of Central Excise  Ors
vs Madras Rubber Factory Ltd  Ors 163 SC where it has been held page 20 of the report that the different prices can be normal prices for the purposes of the determination of the assessable value of an article
In that case however it must be appreciated that the separate price lists in respect of supplies made to the Government and other departments were filed by the assessee the Madras Rubber Factory distinct and different from the price lists in relation to dealers and it was held that since different price lists for different classes of buyers are specifically recognised under proviso i of section 41 of the Central Excises Act therefore merely because the product is sold at a lower price to the Government and its department that does not enable the MRF to contend that the difference in price with reference to an ordinary dealer and the Government is a discount to the Government
The difference in price is not a discount but constitutes a normal price for the Government as a class of buyers and no deduction on this Head is admissible
It was in these facts and circumstances that the aforesaid conclusion was arrived at and it has no application to the case before us because it has not been shown to us that a distinct or different price list was filed regarding any particular category of buyers in respect of the sales in question
Mr Ganguly next drew our attention to Rule 233B of the Central Excises Rules 1944 which lays down the procedure to be followed when duty is paid under protest
The provisions of this rule however are of no relevance here because it has not been pointed out to us as to how the appellant has failed to observe this rule in any particular regard so that the provisions of clause 8 of the rule can come into effect
This rule does not prescribe any particular form of protest and hence it is not possible to say on the basis of this rule that the appellant assessee in this case must be deemed to have paid the duty without protest
In the result the appeal is allowed
The order of the Tribunal is set aside and it is held that the assessee is entitled to refund where excise duty has been assessed and collected from the assessee at a higher rate on the footing that the wholesale distributors of the assessee were persons related to it that is in respect of the other categories of sales namely retail sales sales to dealers sales to State Transport Undertakings and export clearances
Looking however to the facts and circumstances of the case there will be no order as to costs of the appeals
The orders for costs already made shall however stand
NVK Appeal al lowed


Summary:
The plaintiff respondent claimed that before the UP Zamindari Abolition and Land Reforms Act 1950 came into force his father was a sub tenant under defendants 3 to 25 and after his father s death the other 3 sons separated from the plaintiff and consequently he has become the sole tenant
According to him his father was recorded occupant of Khasra 1356 Fasli 171948 to 3061949 and was in cultivatory possession in Khasra 1359 Fasli 171951 to 3061952 as a result of which he had acquired adhivasi rights and sirdari rights and the rights of defendants 3 to 25 extinguished under section 240 A of the said Act
He alleged that in 1968 defendants I and 2 obtained fictitious sale deed from defendants Nos 3 to 25 in respect of the said land and started interfering with his possession
He therefore filed a suit for permanent injunction
The suit was contested by some of the defendants who pleaded that neither the plaintiff nor his father was in possession of the said land at any point of time and there was no question of sub tenancy or acquiring of adhivasisirdari rights
The trial court dismissed the suit
The appeal preferred by the plaintiff respondent was dismissed by the first appellant court
The trial court as also the first appellate court held that the respondent was not entitled to become an adhivasi under section 20bi of the Act since his father died in 1951 before the date of vesting ie 171952
Both the courts also held that his father was not in cultivatory possession of Khasra 1359 Fasli and therefore he could not get adhivasi rights under section 3 of the UP Land Reforms Supple 165 mentary Act 1952
It was also held that there was no contract or sub tenancy in the name of his father
The plaintiff respondent preferred an appeal before the High Court which allowed the appeal and granted a decree reversing the decision of the courts below
Aggrieved the appellants have flied the present appeal contending inter alia that since there were concurrent findings of facts by the trial court and the first appellate court and in the absence of any substantial question of law the High Court had no jurisdiction under section 100 CPC to disturb the concurrent findings of facts
Dismissing the appeal this Court HELD 1
Section 1001c of the Code of Civil Proce dure refers to a substantial error or defect in the proce dure
The error or defect In the procedure to which the clause refers is not an error or defect in the appreciation of evidence adduced by the parties on the merits
Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded inconsequence is grossly erro neous that cannot be said to introduce a substantial error or defect in the procedure
If in dealing with a question of fact the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure
When the first appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure
So also in a case where the court below ignored the weight of evidence and allowed the judg ment to be influenced by inconsequent matters the High Court would be justified in reappreciating the evidence and coming to its own independent decision
168H 169A C Madan Lal vs Gopi  relied on
V Ramachandra Ayyar  Anr
vs Ramalingam Chettiar  Anr AIR 1963 SC 302 referred to
Section 20b1 of the Act eliminates enquiries into possession in accepting the record in the Khasra
In the instant case the Khasra entry for 1356 Fasli showed that the appellant s father was the subtenant
It is not for the appellant to prove that this entry Is incorrect
It was for the defendants to show that the entry had been introduced 166 surreptitiously out of ill will of hostility
In the absence of such proof the genuineness has to be presumed and the entry accepted as evidence of the sub tenancy in favour of the appellant s father
The Khasra entry of 1371 Fasli and 1372 show the appellant s name as person in possession
It is clear indication that possession of the sub tenant con tinued with the appellant
The rent receipts of the year 1929 and subsequent years are not required to be proved by the appellant as pointed out by the learned Judge
These furnish evidence of possession as sub tenant
The lower appellate court was not justified in ignoring these docu ments
The High Court was therefore well within its power in appreciating the evidence and arriving at its own conclu sion
170B E G Amba Prasad vs Abdul Noor Khan  Ors  and Nath Singh  Ors
vs The Board of Revenue  Ors  relied on
Though the revenue courts had exclusive jurisdiction the civil court had jurisdiction to try the suit for injunc tion when the question of title arose only incidentally
171B 4
The High Court was right in holding that the appeal did not abate on account of non filing of substitution application after the death of certain defendants
170H The State of Punjab vs Nathu Ram  relied on