This is a revision under Section 11 of the U.P. Trade Tax Act against the order of the Tribunal dated 22.2.2003 for the assessment year 1999-2000 under the Central Sales Tax Act (called the 'Central Act' for short).
The applicant is a Government of India Undertaking and is controlled by the Ministry of Petroleum, Government of India, New Delhi. It has its refinery unit at Mathura wherein it manufactures petroleum products. It is registered both under the U.P. Trade Tax Act (called the 'Act' for brevity) and under the Central Act. The assessing authority passed the assessment order for the year under consideration. The assessing authority has rejected the books of account and the enhanced turnover. The assessing authority has also added the amount of the excise duty paid by the purchaser outside the State of U.P. in the turnover.
Being aggrieved by the assessment order the applicant filed appeal before the Deputy Commissioner (Appeals), Trade Tax, Agra, which has been dismissed vide order dated 24.7.2002.
Aggrieved by the order of the Deputy Commissioner (Appeals), the applicant filed second appeal before the Tribunal. The Tribunal by the order dated 22.2.2003 allowed the appeal in part. The Tribunal has sustained the enhancement of the turnover by Rs. 5 crores. The Tribunal has also confirmed the view of the assessing authority treating the excise duty paid by the Ex-U.P. Purchaser as the part of the turnover and the levy of tax thereon.
The assessing authority has found that the applicant has not included the amount of excise duty in the sale price of the petroleum product which have been transferred from its Bonded Warehouse (BWH) to BWH of Other Marketing Companies (OMC) situate outside the State of U.P. However, on the amount of Rs. 1,75,58,83,025/- tax at Rs. 7,02,23,321/- has been paid at the rate of 4% under protest. It has been held that the excise duty is the levy on the manufacturer. For the convenience or for the collection purposes if the collection of the Central Excise duty is deferred from one place to another place, the liability to pay the central excise on the manufacturer does not cease. If the excise duty has been paid by any other person at any other stage it will be deemed to have been paid on behalf of the manufacturer and, therefore, the amount of excise duty paid by the Ex-U.P. purchasers which were the marketing companies of the applicant has been treated as the part of the turnover and the tax has been levied thereon. Reliance has been placed on the decision of the apex Court in the case of M.s, Mc Dowell & Co. Ltd. v. The Commercial Tax Officer reported in 1985 UPTC 747; in the case of Mohan Beverages and Distilleries Ltd. v. Commercial Tax Officer reported in 1997 NTN 813; State of Kerala v. Madrus Rubbers Factory reported in AIR 1988 SC 723. The books of account and the enhancement of the turnover has been made on the basis of various discrepancies mentioned in the assessment order.
Heard Sri Bharat Ji Agrawal, Senior Advocate, and Sri B.K. Pandey, Standing Counsel.
Learned counsel for the applicant submitted that the Central Excise duty was payable during the relevant period under the Central Excise and Salt Act, 1944 (called the 'Act 1944' for short). Section 3 of the Act 1944 provides that there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods which are produced or manufactured in India. Section 4 provides valuation of excisable goods for purposes of charging of duty of excise. Section 4(1)(a) provides that where the excise duty is chargeable with reference to the value, such value be deemed to be the normal price thereof, i.e. the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for the delivery at the time and place of removal. Section 4(4) provides that the "assessee" means the person who is liable to pay the duty of excise under this Act and includes his agent; "place of removal" means a factory or any other place or premises of production or manufacture of the excisable goods; or a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty, from where such goods are removed. The "assessee" is defined under Rule 2(ib) of the Central Excise Rules, 1944 (hereinafter referred to as the 'Excise Rules'). It says that any person who is liable for payment of duty assessed and also includes any producer or manufacturer of excisable goods or a registered person of a private warehouse in which excisable goods are stored. Rule 7 of the Excise Rules provides that every person who produces, cures or manufactures any excisable goods, or who stores such goods in a warehouse, shall pay the duty or duties leviable on such goods, at such time and place and to such person as may be designated, in, or under the authority of these rules, whether the payment of such duty or duties is secured by bond or otherwise. However, Rule 9 of the Excise Rules provides time and manner of payment of duty. It says that no excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf. It further provides that such goods may be deposited without payment of duty in a store-room or other place of storage approved by the Collector under Rule 27 or Rule 47 or in a warehouse appointed or registered under Rule 140 or may be exported under bond as provided in Rule 13. However, Rule 9A of the Excise Rules provides date for determination of duty and tariff valuation. Rule 139 is under Chapter VII of the Excise Rules. It relates to warehousing of excisable goods. It provides that the provisions of this Chapter shall apply only to excisable goods to which they are extended by the Central Government by notification in the Official Gazette, and the provisions relating to the removal from one warehouse to another shall not apply to such goods provided that the Central Government may by notification in the Official Gazette direct that the provisions relating to the removal from one warehouse to another shall extend to such goods subject to such limitations and conditions as may be specified therein. Rule 144 of the Excise Rules provides that no goods shall be removed from any warehouse except as on payment of duty or, where so permitted by the Central Government by notification in this behalf, for removal to another warehouse. Rule 157 of the Excise Rules provides that any owner of goods warehoused may, at any time within the period during which such goods can be left or are permitted to remain in a warehouse under Rule 145 clear the goods for home consumption by paying the duty thereon assessed prior to entry or re-assessed under rule 159. He submitted that by notification No. 266/67-C.E. Dated 28.11.1967 as amended by the other notification issued under Rule 139 is excisable goods which has been permitted to be removed without payment of duty from a warehouse licensed under Rule 140 of the said rules for the storage of such goods located at any of the places specified below to any other warehouse so licensed and so located. It permits the removal of the goods without payment of duty from Mathura Refinery. Mathura Refinery is included in the list of the warehouse from where the goods excisable can be transferred to any other warehouse so licensed. He submitted that under the aforesaid provisions the excisable goods has been transferred from the warehouse of the applicant to the warehouse of the purchaser without the payment of duty. The duty is not only leviable on the manufacturer but also leviable on any other person also. The purchaser is also liable for the payment of excise duty under the aforesaid provision while clearing the goods from their warehouse. In the circumstances it is wrong to say that the excise duty is leviable only on the manufacturer. In the present case the excise duty was leviable on the purchaser at the time of removal of the goods from their warehouse situate outside the State of U.P. Such purchaser has also paid the excise duty while removing the goods from the warehouse. Therefore, the amount of excise duty paid by the warehouse would not be a part of the sale price of the petroleum product. Such excise duty has neither been paid by the purchaser to the applicant nor it has been deposited by the applicant. It has been directly paid by the purchaser under the Act 1944 and the Rules made thereunder as they were liable to pay the excise duty on the clearance of such goods from their warehouse. In support of its contention he placed reliance on the Division Bench decision of the Lucknow Bench reported in 2007 UPTC 622 (paragraphs 11 & 12) and the decision of the apex Court in the case of State of Punjab & others v. M/s. Guranditta Mal Shanti Prakash, Etc. reported in 2004 UPTC 727 (paragraphs 7 & 8). He submitted that the decision of the apex Court in the case of M.s, Mc Dowell & Co. Ltd. (supra) is not applicable to the present case. It is a case under the U.P. Excise Act where the liability to pay the excise duty was on the manufacturer alone. With regard to the enhancement of the turnover, he submitted that there is no material of suppression or omission. Only on the technical ground the different inference has been drawn. The enhancement of the turnover is without any basis. He submitted that the Tribunal has enhanced the turnover by Rs. 5 crores without any basis. No reason has been assigned for estimating such a turnover.
Sri B.K. Pandey, Standing Counsel, has submitted that under the Salt Act the excise duty is the levy on production. Under the said Act the liability to pay the Central Excise Duty is on the manufacturer at the time of removal of the goods. In case if under the provisions of the Act and the notification issued thereunder if the liability of the payment of excise duty is deferred, the statutory liability to pay the excise duty by the manufacturer does not ceases. Any amount towards excise duty paid by the purchaser would amount to payment of excise duty by the manufacturer. In support of his contention he relied upon the decision of the apex Court in the case of M/s, Mc Dowell & Co. Ltd. (supra) wherein it has been held that the liability to pay the excise duty is on the manufacturer and even if the duty is paid by the purchaser it will be deemed to be paid on behalf of the manufacturer and the amount of excise duty would be the part of turnover.
So far as the rejection of books of account and the enhancement of turnover are concerned, learned Standing Counsel submitted that the assessee was not able to reconcile the differences between the turnover as per account books and return; not able to verify the information received; not able to verify the goods imported from outside the State; not able to produce the quantitative details of the manufacturing and trading goods the enhancement is only 2.21% of the declared turnover which cannot be said to be excessive having regard to the discrepancies found.
Having heard learned counsel for the parties, I have perused the impugned order and the orders of the authorities below and given my anxious consideration to the rival submissions.
So far as the enhancement of the turnover is concerned, in my view the matter requires reconsideration by the Tribunal. The Tribunal has not given any basis for the enhancement of the turnover by Rs. 5 crores. The Tribunal even has not referred the discrepancies found in the books of account. Therefore, the order of the Tribunal in this regard is liable to be set aside.
Now, coming to the another question whether the excise duty paid by the purchaser would be liable to be included in the turnover of the assessee. Section 3 of the Salt Act provides levy and collection of excise duty on all excisable goods which are produced and manufactured in India in such manner as may be prescribed. Rule 7 of the Excise Rules provides that every person who produces, cures or manufactures any excisable goods, or who stores such goods in a warehouse, shall pay the duty or duties leviable on such goods. Rule 9 of the Excise Rules says that no excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require and except on presentation of an application in the proper form and on obtaining the permission of the proper officer on the form. However, the proviso provides that such goods may be deposited without payment of duty in a store-room or other place of storage approved by the Collector under Rule 27 or Rule 47 or in a warehouse appointed or registered under Rule 140 or may be exported under bond as provided in Rule 13 of the Excise Rules. Rule 144 of the Excise Rules provides that no goods shall be removed from any warehouse except as on payment of duty or, where so permitted by the Central Government by notification in this behalf for removal to another warehouse or for export. The aforesaid provision clearly contemplates that the excise duty is the leviable on the manufactured product and the duty is payable at the point of removal. No goods can be removed from the factory or the warehouse without the payment of duty. Therefore, the initial liability to pay the Central Excise Duty was on the applicant while removing the goods from its factory or its warehouse. However, in case if the permission has been granted to remove the goods from the factory or warehouse to the another warehouse licensed under Section 140 belonging to some other person, without payment of duty, the duty is payable on the clearance of goods from such warehouse. In such circumstances the payment of excise duty has only been deferred or extended from the stage of removal of goods from the factory or the warehouse of the applicant to the warehouse of the purchaser, but the liability to pay the excise duty, which is chargeable and payable under the Act, by the manufacturer does not cease.
It would be appropriate to refer the definition of the "sale price" given in Section 2(h) of the Central Act. The Federal Court in The Province of Madras v. M/s. Boddu Paidanna and Sons, (1942) FCR 90, held:
"There is in theory nothing to prevent the Central Legislature from imposing a duty of excise on a commodity as soon as it comes into existence, no matter what happens to it afterwards whether it be sold, consumed, destroyed, or given away. A taxing authority will not ordinarily impose such a duty, because it is much more convenient administratively to collect the duty (as in the case of most of the Indian Excise Acts) when the commodity leaves the factory for the first time, and also because the duty is intended to be an indirect duty which the manufacturer or producer is to pass on to the ultimate consumer, which he could not do if the commodity had, for example, been destroyed in the factory itself. It is the fact of manufacture which attracts the duty, even though it may be collected later ... ....".
This view has been followed by the apex Court and the position has been put beyond doubt by a series of decisions. In R.C. Jall v. Union of India, (1962) Suppl. 3 SCR 436, it has been observed:
"The Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. Subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost is not lost. The method of collection does not affect the essence of the duty but only relates to the machinery of collection for administrative convenience."
In Re. Sea Customs Act, (1964) 3 SCR 787 the apex Court said:
"With great respect, we accept the principles laid down by the said three decisions, 1938 FCR 18 : 1942 FCR 90 and 1945 FCR 179 in the matter of levy of an excise duty and the machinery for collection thereof."
In M/s. Guruswamy & Co. etc. v. State of Mysore & Ors., (1967) 1 SCR 548, Sikri, J. (as he then was), spoke for the majority and stated thus :
"These cases establish that in order to be an excise duty (a) the levy must be upon "goods" and (b) the taxable event must be the manufacture or production of goods. Further the levy need not be imposed at the stage of production or manufacture but may be imposed later."
Jullundur Rubber Goods Manufacturers' Association v. Union of India & Anr., (1970) 2 SCR 68 Grover, J. after extracting a part of the judgment in Jall's case (supra) spoke for the Court thus :
"The above statement of law in no way supports the argument that the excise duty cannot be collected from persons who are neither producers nor manufactures. Its incidence certainly falls directly on the production or manufacture of goods but the method of collection will not affect the essence of the duty."
In A.B. Abdul Kadir & Ors. v. State of Kerela, (1976) 3 SCR 219 this Court restated the position thus :
"Excise duty, it is now well settled, is a tax on articles produced or manufactured in the taxing country. Generally speaking, the tax is on the manufacturer or the producer, yet laws are to be found which impose a duty of excise at stages subsequent to the manufacture or production."
In the case of Hari Shanker v. Deputy Commissioner reported in AIR 1975 SC 1221 the apex Court has held that excise duty is primarily the duty on the production or manufacture of the goods produced by the manufacturer.
Thus, the incidence of excise duty is directly relatable to manufacture but its collection can be deferred to later stage as a measure of convenience or expediency.
In the case of M/s, Mc Dowell & Co. Ltd. (supra) while dealing with the identical question whether the excise duty paid by the purchaser under the Andhra Pradesh Excise Act, 1968 and Andhra Pradesh Foreign Liquor and Indian Liquor Rules would be a part of the sale turnover of the manufacturer. "Excise Duty" as defined in Section 2(10) of the Excise Act is leviable on the manufacturer of liquor and the manufacturer could not remove the same from the distillery unless the duty imposed under the Excise Act has been paid. Rule 76 of the Distillery Rules provides that no spirit or liquor manufactured or stored shall be removed unless the excise duty specified in Rule 6 has been paid by the holder of D-2 licence before such removal. The Constitution Bench of the apex Court held as follows :
"Thus, the incidence of excise duty is directly relatable to manufacture but its collection can be deferred to later stage as a measure of convenience or expediency."
It further held as follows :
"9. On an examination of the provisions of the Excise Act, the Rules framed thereunder and the pronouncements referred to above we are of the view that the conclusion of this Court at page 921 of the Reports that intending purchasers of the Indian liquors who seek to obtain distillery passes are also legally responsible for payment of the excise duty is too broadly stated. The "duty" was primarily a burden which the manufacturer had to bear and even if the purchasers paid the same under the Distillery Rules, the provisions were merely enabling and did not give rise to any legal responsibility or obligation for meeting the burden. We do not propose, however, to examine this aspect any further for the change in Rule 76 of the Distillery Rules has clearly affirmed the position that liability for payment of excise duty is of the manufacturer. Provisions of Rules 80, 81, 82, 83 and 84 do not militate against the conclusion that the payment of excise duty is a liability exclusively of the manufacturer. In these rules detailed provisions have been made regarding obtaining of distillery pass, correct calculation and full payment of excise duty, the manner of depositing such duty and ultimately issue of the spirit under the pass from the distillery. These rules, therefore, do not detract from the position that payment of excise duty is the primary and exclusive obligation of the manufacturer and if payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more."
"12. The definition clearly indicates that the total amount charged as the consideration for the sale is to be taken into account for determining the turnover. Where a bill of sale is issued (and obviously the bill has to state the total amount charged as consideration), the total amount set out therein is to be taken into account. In every transaction of sale, there is bound to be a seller at one end and a buyer at the other and transfer of title in the goods takes place for a consideration."
The Constitution Bench has considered the definition of the "turnover" as defined in Section 2(s) of the Andhra Pradesh General Sales Tax Act, 1957 and held as follows :
"11. 'Turnover' is defined in Section 2(s) of the Sales Tax Act to mean :
"The total amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment or any other thing or value) including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof".
"12. The definition clearly indicates that the total amount charged as the consideration for the sale is to be taken into account for determining the turnover. Where a bill of sale is issued (and obviously the bill has to state the total amount charged as consideration), the total amount set out therein is to be taken into account. In every transaction of sale, there is bound to be a seller at one end and a buyer at the other and transfer of title in the goods takes place for a consideration."
13.In Hindustan Sugar Mills v. Rajasthan State, 1979 UPTC 37 (SC) : (1979) 1 scr 276, this Court observed :
"The test is, what is the consideration passing from the purchaser to the dealer for the sale of the goods. It is immaterial to enquire as to how the amount of consideration is made up, whether it includes excise duty or sale tax or freight. The only relevant question to ask is as to what is the amount payable by the purchaser to the dealer as consideration for the sale ......"
The Court proceed to say :
"Take for example, excise duty payable to by a dealer who is manufacturer. When he sells goods manufactured by him, he always passes on the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The sale price in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwise, under which the purchaser would be liable to pay the amount of excise duty to the dealer. And on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bill"
We would like to add, that the position is not different when under a prior agreement, the legal liability of the manufacturer dealer for payment of excise duty is satisfied by the purchaser by direct payment to the excise authorities or to the State exchequer.
14- In Paprika Ltd and another v. Board of Trade, (1944) All ER 372, it was stated :
"Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay tax demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as "X' plus purchase tax."
This Court in M/s George Oakes (P) Ltd. v. The State of Madras, (1962) 2 SCR 570 quoted this extract with approval and also referred to the following passage in the judgment of Goddard, L.J. Love v. Norman Wright (Builders) Ltd. (1944) All ER 618 :
"When an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up, of cost plus profit plus tax. So if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer. If the buyer agrees to the price, it is not for him to consider how it is made up or whether that seller has included tax or not.......So far as the purchaser is concerned, he pays for the goods what the seller demands, namely, the price even though it may include tax. That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover."
Admittedly, the bills issued by the appellant did not include the excise duty. As already found, payment of excise duty is a legal liability of the manufacturer; its payment is a condition precedent to the removal of the liquor from the distillery and payment by the purchaser is on account of the manufacturer. According to normal commercial practice, excise duty should have been reflected in the bill either as merged in price or being shown separately. As a fact, in the hands of the buyer the cost of liquor is what is charged by the appellant under its bill together with excise duty which the buyer has directly paid on seller's account. The consideration for the sale is thus the total amount and not what is reflected in the bill. We are, therefore, clearly of the opinion that excise duty though paid by the purchaser to meet the liability of the appellant, is a part of the consideration for the sale and is including in the turnover of the appellant. The purchaser has paid the tax because the law asks him to pay it on behalf of the manufacturer.
In the case of Mohan Breweries & Distilleries Ltd. Etc. v. Commercial Tax Officer, Madras & Ors. reported in 1997 NTN (Vol. 11) 813, a similar question came up for consideration before the three Judges Bench of the apex Court. In the said case the appellant was the manufacturer of Indian Made Foreign Liquor (IMFL). The Tamil Nadu State Marketing Corporation Ltd. had an exclusive privilege of supplying wholesale IMFL for whole of that State. Under the provisions of Tamil Nadu Indian-made Foreign Spirits (Supply by Whole sale) Rules, 1981, the liability to pay excise duty was upon the Tamil Nadu State Marketing Corporation. The excise duty was also paid by the said Corporation. The question for consideration was whether the excise duty paid by the Corporation would form part of the turnover of the appellant-manufacturer. The apex Court has held as follows :
"6. Excise duty is levied upon goods manufactured or produced (Entry 84 of list 1 and Entry 51 of List II of the Seventh schedule to the Constitution). Its incidence falls, therefore, on the manufacturer or producer of the goods. The collection of excise duty may be deferred to such later stage as is, administratively or otherwise, most convenient.
In the case of Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, it was noted that excise duty was a duty ordinarily levied on the manufacturer or producer in respect of the manufacture or production of the commodity taxed. A distinction was made between the nature of the tax and the point at which it was collected. It was subject to the legislative competence of the taxing authority to impose the duty at the stage which was most convenient and the most lucrative, wherever it might be, but "that is a matter of machinery of collection, and does not affect the essential nature of the tax." This was reiterated by the Federal Court in Boddu Paidanna's case. In the Bombay Tyre's case, this Court referred to the aforementioned two authorities of the Federal Court and several authorities of this Court to hold that excise duty was levied on manufacture but it could be levied at any convenient stage so long as the character of the impost, that is, that it was a duty on the manufacture or production, was not lost. The method of collection did not affect the essence of the duty but only related to the machinery of collection for administrative convenience. This Court said, "while the levy in our country has the status of a constitutional concept, the point of collection is located where the statute declares it to be."
The liability to pay excise duty on the IMFL is, therefore, that of the manufacturer thereof, Rule 22 only provides a made for collecting the excise duty, a mode which is obviously convenient for it requires the party removing the IMFL from the factory of its production to pay in advance the excise duty thereon. That party might be the manufacturer, that the Act provides in another section that all IMFL should be supplied in the State of Tamil Nadu by wholesale only through TASMAC does not, in our view, make any difference to this position. It cannot be a reason for holding that the primary obligation to pay excise duty is that of TASMAC or that the manufacturer is absolved of the obligation to pay excise duty.
In view of the above law laid down by the apex Court, I am of the view that the Central Excise Duty paid by the purchaser is liable to be included in the sale price for the purposes of the levy of tax.
The Division Bench decision in the case of Hindustan Sugar Mills Ltd. v. State of U.P. (supra), relied upon by the learned counsel for the applicant, is not applicable to the present case. In the said case it was found that the liability for the payment of Export Pass Fee under the U.P. Excise Import Export Transport and Possession of De-natured Spirit (14th Amendment) Rules 1989 was of Ex-U.P. purchaser and not on the distillery and on these facts it has been held by the Division Bench that the Export Pass Fee would not form part of the turnover. The decision of the apex Court in the case of State of Punjab & others v. M/s. Guranditta Mal Shanti Prakash, Etc. (supra) is also not applicable to the present case. In the said case the dispute was whether the market fee paid by the purchaser under the Marketing Regulation would form part of the purchased turnover. The apex Court has held that once it is held that the buyer has an obligation to pay the market fee and it is the duty of the seller to deposit the market fee on behalf of the buyer and, therefore, to realise it from the buyer is not the legal obligation of the seller to pay market fee on such a transaction. Thus, the amount of market fee cannot be treated as part of the sale consideration.
In the result the revision is allowed in part. The order of the Tribunal, so far as it held that excise duty is the part of the turnover, is upheld and the order of the Tribunal estimating and enhancing the turnover by Rs. 5 crores is set aside and the matter is remanded back to the Tribunal to decide the question of determination of the turnover afresh.
Dated: 31st March, 2011 OP