ivil Appeal Nos
2349 61 of 1988
From the order dated 871987 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal Nos
El583 to l589 86 A and 1533 1521 1528 1529 311986 A and order No 491 to 503 of 1987
AK Ganguli Mrs Indu Malhotra and Mrs Sushma Suri for the Appellant
Soli J Sorabji M Chandrasekharan Mrs VJ Francis and NM Popli for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
These appeals are under Section 35Lb of the Central Excises  Salt Act 1944 hereinafter called the Act  directed against the decision of the Customs Excise Gold Control Appellate Tribunal New Delhi hereinafter called the CEGAT 
The respondent Ms Indian oxygen Ltd Visakhapatnam are manufacturers of dissolved acetylene gas and campressed oxygen gas hereinafter called the gases 
The respondent was supplying these gases in cylinders at their factory gate
For taking delivery of these gases some consumerscustomers used to bring their own cylinders and take the delivery while others used to have the delivery in the cylinders supplied by the respondent
For the purpose of such supply of cylinders certain rentals were charged by the respondent and also to ensure that these cylinders are returned properly certain amount of deposit used to be taken from the customers
On those deposits notional interest  18 per annum was calculated
These two amounts with which we are concerned namely the rentals of the cylinders and the notional interest earned on the deposit of cylinders are the subject matters of the dispute herein
Whether these two amounts were includible in the value under Section 4 of the Act is the question
The revenue s case is that the notional income on deposit of 764 cylinders and the rental are part of the asessable value and hence should be included in computing the assessable value
The respondent however disputed that
They had neither included such rentals nor the interest received from the buyers in the price list for the assessment
Therefore the revenue issued show cause notices to the respondent
In their reply the respondent stated that the deposits from buyers were only to ensure return of the gas clinders from the customers
The Asstt
Collector Central Excise Visakhapatnam by an order dated 361965 held that the respondent had to pay excise duty on the interest earned  18 during the relevant period
He further held that since the respondent had suppressed this fact from the revenue in the past 5 years under Rule 8 read with Section 11A of the Act these are includible
He also included the rentals of these cylinders in the value
On an appeal the Collector of Central Excise Madras upheld the said order with certain modifications
Dissatisfied with the aforesaid the respondents appealed to the CEGAT
In its order under appeal the Tribunal observed inter alia as follows As regards charge on account of rental for the cylinders and the interest which accrues on account of deposit receipts for the supply of gases in returnable cylinders we are not persuaded that either of these charges is related to the cost of manufacture of the goods as such The Tribunal therefore under Section 4 deleted from the value rentals for the cylinders and interest which accrued on account of deposit receipts for the supply of gases
Hence this appeal by the Collector
It is well settled that the levy under the Act is on the manufacture
Under Section 41a of the Act excise duty 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
Here the sale is of the gases
The levy is on the manufacture of gases and the excisable goods are these gases
765 The scope of Section 4 has been explained by this Court in Union of India  ors
vs Bombay Tyre International Ltd  as well as the ramifications thereof in Asstt
Collector of Central Excise vs Madras Rubber Factory Ltd 19861 Supp SCC 751
In the light of the aforesaid principles it has to be borne in mind that the supply of gas cylinders is ancillary to the supply of gases but it is strictly not incidental thereto because there are classes of persons who can take delivery of these gases without supply of cylinders by the respondent and in those cases no question of charging rental nor interest on those deposits for cylinders would arise
It is true that the gas being a commodity of peculiar nature had to be delivered in cylinders but these cylinders might be supplied either by the supplier as an ancillary activity or brought by the consumer or purchasers at their own risk and cost
For purchasers taking it in their own cylinders supplied by them there was no charge for them
This is not an activity for the manufacture of gases
This is ancillary to it but not incidental
Any income either in the shape of interest on deposits notional or real may be earned on the deposit for the safe return of cylinders or any rental would be though ancillary but would not be the price for the manufacture
These might be profits or gains if any of any ancillary or allied venture
If that is the true position then on the principle under Section 41a of the Act the Tribunal was right in excluding these two amounts while computing the value of the excisable goods
Mr AK Ganguli learned counsel appearing for the revenue sought to urge before us that there are two different classes of buyers one class of such buyers was who used to bring their own cylinders and the others used to get their supplies through the cylinders of the suppliers
According to him different rates for these two classes of buyers
 in fact constitute two different markets and are permissible
This according to him is contemplated under the first proviso to Section 41a of the Act which reads as follows i where in accordance with the normal practice of the wholesale trade in such goods such goods are sold by the assessee at different prices to different classes of buyers not being related persons each such price shall subject to the existence of the other circumstances specified in clause a be deemed to be the normal price of such goods in relation to each such class of buyers  There may be different classes of buyers for different classes of goods
Section 41a of the Act emphasises that if the goods is of the 766 same type the prices should also be the same
The proviso to the said Section postulates that where in accordance with normal practice such goods namely the gases are sold to different classes of buyers then different prices may be charged
If gases had been sold to different classes of buyers at different rates it is possible that there might be different markets for the same
But here the charges like rentals for the cylinders and the notional interest income are for ancillary or allied services and that is not an activity of manufacture
Hence Section 41a proviso can be of no avail to the renenue
It is a case of two different supplies
One is supply of gases and the other is incidental supply of cylinders for rent
In that view of the matter in our opinion the Tribunal was right in the view it took
The interest notional or real accruing on deposits for the safe return of cylinders as well as the rentals would not constitute part of the assessable value
In the aforesaid view of the matter the order of the Tribunal needs no interference
The appeals accordingly fail and are dismissed There will be no order as to costs
NVK Appeals dismissed


Summary:
Election to the State Legislative Assembly of Rajasthan for Jodhpur City Constituency was held in the year I985
Nomination papers were filed on 821985 and the date of scrutiny was Y2
In all 45 candidates filed their nominations after scrutiny and withdrawal 21 candidates contested the election
After polling and the counting of votes the appellant was declared elected having obtained majority of votes
The respondent who was an elector in the Jodhpur city Constituency filed an election petition before the High Court challenging the appellant s election on the ground that the result of election was materially affected on account of improper rejection of nomination papers of 3 candidates namely Smt
Umrao Ben Hukmi Chand and Suraj Prakash Joshi
It was pleaded that Smt
Ben was an elector in the Sardarpura Assembly Constituency the Returning Officer wrongly rejected her nomination paper without affording an opportunity to her to produce a copy of the electoral roll that Hukmi Chand and Suraj Prakash Joshi both were more than 25 years of age on the date of the nomination yet the returning officer rejected their nomination papers on the ground that they were not qualified to be a candidate as they were below 25 years of age
PG NO 1 PG NO 2 The appellant contested the election petition
It was asserted that Smt
Ben had failed to file a certified copy of the relevant entry in the electoral roll of Sardarpura Constituency along with her nomination that she further failed to produce a copy of the electoral roll at the time of scrutiny and the returning officer therefore rightly rejected her nomination paper
In respect of Hukmi Chand and Suraj Prakash Joshi it was pleaded that none of the two candidates were present before the returning officer at the time of scrutiny and since the entries contained in the electoral roll indicated that they were below 25 years of age the returning officer rightly rejected their nomination papers
and that the rejection of the 3 nomination papers was proper and the result of the election was not materially affected on account of the rejection of the name
The High Court allowed the election petition and set aside the appellant s election
It held that the nomination paper of Smt
Umrao Ben was validly rejected as she had failed to comply with section 335 of the Representation of Peoples Act inasmuch as she failed to produce the copy of the electoral roll or a certified copy of the extract relating to entry of her name in the electoral roll
It further held that the nomination papers of Hukmi Chand and Suraj Prakash Joshi had been rejected improperly by the Returning officer as both the candidates had attained the qualifying age of 25 years on the date of nomination
Aggrieved by the aforesaid judgment
the appellant preferred an appeal to this Court under section 116 A of the Representation of People Act 1951
On the questions whether 1 the returning officer had validly rejected the nomination papers of Smt
Umrao Ben Hukmi Chand and Suraj Prakash Joshi and 2 the respondent had proved in accordance with law that Hukmi Chand and Suraj Prakash Joshi whose nomination papers were rejected by the Returning Officer had attained the age of 25 years on January 1 1984
PG NO 3 Allowing the appeal setting aside the order of the High Court and dismissing the election petition the Court
HELD la
Section 33 of the Act provides for presentation of nomination paper and it further lays down the requirements of a valid nomination
Section 335 requires a candidate who is an elector of a different constituency to file a copy of the electoral roll of the constituency as a certified copy of the relevant entries along with his nomination paper
If a candidate is unable to comply with these requirements at the time of filing the nomination paper he is afforded another opportunity to prove his eligibility by producing a copy of the electoral roll of the constituency of the relevant part thereof or a certified copy of the relevant entries of the roll before the returning officer at the time of scrutiny
9A E b The Legislature thus provides two opportunities to such a candidate for proving his eligibility to contest the election one at the time of filing the nomination paper and the other at the stage of scrutiny
If the candidates fail to avail of either of the two opportunities his nomination paper is liable to be rejected
9E F c Non compliance with section 335 is fatal to the nomination and no other mode is prescribed by the Act for proving the eligibility of the candidate
Section 335 prescribes a particular mode to prove eligibility of a candidate to contest election and section 36Zh provides penal consequences10A d Section 335 of the RP Act lays down a mandatory requirement for a valid nomination
The purpose is to satisfy the returning officer that the candidate is eligible to contest the election and if he fails to satisfy the returning officer in the manner prescribed the penalty and the consequences which are specified in section 362b must follow
Section 335 is not directory instead it ia mandatory in nature
l0F e An elector of a different constituency is under a mandatory duty to prove his eligibility in the manner prescribed by section 335 of the Act and if he fails to do that he must suffer the consequences contemplated by section 362b of the Act
It is not open to a candidate who fails to comply with section 335 to put the blame on the returning officer for the rejection of his nomination paper
The returning officer is under no legal obligation to make amends for the omission of a candidate especially when the omission relates to a mandatory requirement
10G 11A PG NO 4 F The law does not enjoin the returning officer to send for the electoral roll from his office to verify the eligibility of a candidate
The law casts a duty on the candidate to satisfy the returning officer by following one of the three modes prescribed in section 335 of the Act and if he fails to do that the returning officer is bound to reject the nomination paper he has no option in the matter
11B  g The law does not require the returning officer to send for the electoral roll of a different constituency for the purpose of verifying the eligibility of a candidate
11C In the instant case there is no dispute that Smt
Umrao Ben failed to comply with the requirement of section 335 of the Act as she had neither filed a copy of the electoral roll of the constituency or the relevant part thereof or the certified copy of the relevant entries along with her nomination paper
Nor she had produced any of the three documents before the returning officer at the time of scrutiny
In such circumstances the returning officer rightly rejected Umrao Ben s nomination paper
10B Sri Babu Ram vs Shrimati Prasanni  Ors l959 SCR  Narbada Prasad vs Chhagan Lal  Ors
   Parmar Himat singh Jugatsingh vs Patel Harmanbhai Narsibhai   Avadh Raj Singh vs Jugal Kishore Guptal979 1 SCR 228 and Ranjit Singh vs Pritam Singh  Ors 19663 SCR 543 referred to
2a During the scrutiny the Returning Officer is under a statutory duty to satisfy himself that the candidate who may have filed nomination paper possesses the necessary constitutional qualification for contesting the election
l4F b Enquiry during scrutiny is summary in nature as there is no scope for any elaborate enquiry at that stage
Therefore it is open to a party to place fresh or additional material before the High Court to show that the Returning Officer s order rejecting the nomination paper was improper
It should be borne in mind that the proceedings in an election petition are not in the nature of appeal against the order of the returning officer
It is an original proceeding
15C c In the instant case on the basis of the entries contained in the electoral roll the Returning Officer held that the two candidates did not possess the requisite qualification of age as required by Article 173 of the Constitution to contest the election
Accordingly he rejected both the nomination papers
In the absence of any material before the returning officer the returning officer was not wrong in taking the entries in the electoral roll into consideration and acting on them
But his decision is not final
In an election petition it is open to an election petitioner to place cogent evidence before the High Court to show that the candidate whose nomination paper was rejected had in fact attained the age of 25 years on the relevant date
If on the basis of the material placed before the High Court it is proved that the candidate whose nomination paper had been rejected was qualified to contest the election it is open to the High Court to set aside the election
14G l5B PG NO 5 3a To render a document admissible under section 35 of the Evidence Act three conditions must be satisfied firstly entry that is relied on must be one in a public or other official book register or record secondly it must be an entry stating a fact in issue or relevant fact and thirdly it must be made by a public servant in discharge of his official duty or any other person in performance of a duty specially enjoined by law
21B b An entry relating to date of birth made in the school register is relevant and admissible under section 35 of the Act but the entry regarding the age of 3 person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded
21C c Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person
If entry regarding date of birth in the school s register is made on the information given by parents ar someone having special knowledge of the fact the same would have probative value
20A d The date of birth mentioned in the scholar s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined
2OB e The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned
If the entry in the scholar s register regarding date of birth is made on the basis of information given by parents the entry would have evidentiary value but if it is given by a stranger or by Someone else who had no special means of knowledge of the date of birth such an entry will have no evidentiary value
20C PG NO 6 In the instant case nomination papers of two candidates Hukmi Chand and Suraj Prakash Joshi were rejected by the Returning Officer on the ground that they had not attained the age of 25 years at the time of filing nomination papers
In the election petition copies of extract of school register certificate and mark list of Secondary Education Board were produced
The High Court committed serious error in accepting the dates of birth as mentioned in the documents
The High Court s entire approach in considering the question of dates of birth was misconceived
The burden to prove this fact in issue was on the respondent who was the election petitioner
In fact the burden was on him to prove his case by producing Hukmi Chand and Suraj Prakash Joshi or their parents to prove or corroborate the dates of birth as mentioned in the school register and the certificate
No adverse inference could be drawn against the appellant for not examining them
22C G 23C D Raja Janaki Nath Roy  Ors
vs Jyotish Chandra Acharya Chowdhury  Jagan Nath vs Moti Ram  Ors 1951 Punjab 377 Sakhi Ram  Ors
vs Presiding Officer Labour Court North Bihar Muzzafarpur  Ors
 1966 Patna 459 Ghunchi Vora Samsuddish Isabhai vs State of Gujarat 1970 Gujarat 178 Radha Kishan Tickoo  Anr
vs Bhushan Lal Tickoo Anr 1970J  K 62 Jagdmba Prasad vs Shri Jagannath Prasad  Ors  k Paramalali vs LM Alangam  Anr
  krishna Rao Maharu Patil vs Onkar Narayan  Brij Mohan Singh vs Priya Brat Narain Sinha  Ors19653 SCR 861Ram murti vs State of UP Haryana AIR 1625referred to