Holding

The Supreme Court may intervene under Article 136 to overturn factual findings that are unsupported by evidence or contrary to the totality of evidence, and in this case the finding of rent arrears was perverse and unjustified.

Summary

The widowed plaintiff and her children sued Dutta Cycle Stores for eviction under Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, alleging arrears of rent for February 1974 and May‑August 1974. The trial court and the appellate courts found that rent for May‑June 1974 was unpaid and decreed eviction. On appeal, the Supreme Court held that the lower courts’ finding was unsupported because the plaintiff’s sole witness had no personal knowledge and no documentary evidence was produced, whereas the defendants’ witnesses gave clear, consistent testimony that the rent had been paid in June 1974 to the plaintiff’s daughter and mother. The Court ruled that when a factual finding is contrary to the totality of evidence, it may intervene under Article 136 to prevent miscarriage of justice. Consequently, the decree of eviction was set aside and the appeal was allowed with costs.

Issues considered

Whether the finding of rent arrears by the lower courts was justified in view of the evidence presented.
Whether the Supreme Court may interfere with factual findings of lower courts under Article 136 when such findings are unsupported by evidence.

Legislation cited

Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947s. 11(1)(d)
Constitution of Indias. Article 136

Subjects

evictionrent arrearsevidenceArticle 136Supreme Court reviewlandlord‑tenantperverse judgment

Judgment

DUTTA CYCLE STORES & ORS.
A
v. ;.._
.•
SMT. GITA DEVI SULTANIA & ORS.

JANUARY 25, 1990
B
[K. JAGANNATIIA SHETTY & T. KOCHU THOMMEN, JJ.]

Bihar Buildings (Ledse, Rent and Eviction) Control Act, 1947: S.
--..
11( l)(d)-Tenant-Eviction of on grounds of wilful default-Held on
facts that no reason seen to suspect rent remained in arrears.
;
c The appellant-defendants fell in arrears of rent for the months of
February and May to August 1974 for the demised premises. The
respondent-plaintiffs sought their eviction under s. ll(l)(d) of the Bihar j.. .-
Buildings (Lease, Rent and Eviction) Control Act, 1947 on the gronnds
of default. Decreeing the suit, the trial court found that.rent for the said
D five months had not been paid. The decree was affirmed by the appel-
late court in part, that is, in respect of May and June, 1974. That
finding was affirmed by the High Court.

Allowing the appeal _by special leave, the Court, ~.
E HELD: The Supreme Court does not ordinarily interfere in pro-
ceedings under Article 136 of the Constitution particularly when all the
courts below had reached the same conclusion. But where the finding of
fact is based on no evidence or oppose«! to the totality of evidence and
.
F
contrary to the rational conclusion to which the state of evidence must
reasonably lead, then the Court will in the exerci•e of its discretion
intervene to prevent miscarriage of justice. [154C-DJ

In the instant case, there was no reliable oral evidence on the side
r-
of the plaintiffs to support the allegation that rents were in arrears. Nor
was there any documentary evidence in support of their case. Neither
the first plaintiff, the widow nor the other two plaintiffs, her children,
G testified in support of the allegation PW-4, who verified the plaint on
behalf of the plaintiffs admittedly had no personal knowledge that the
defendants were in arrears of rent or whether the_ first plaintiff or
anybody else had demanded rent from the defendants. [156F-G]

On the other hand, DW-8, one of the defendants, stated thaC-for
H the months of May and June 1974 he had paid the rent in June 1974 by
152
DU'ITA CYCLE STORES v. SMT. GITA DEVI [THOMMEN, J.] 153

handing over the 3111ount to the first plaintiff's daughter when sne went
A
to his shop to collect the rent. Since she was a minor be accompanied
her to her house to make sure that the amount was received by her
mother, the first plaintiff. This evidence bas been supported by DW-7.
He was the Accountant of the first defendant firm. DW-6 also spoke of
the fact that in June 1974 the defendants had given Rs.200 as rent to the
younger daughter of the plaintiff. These statements of defence witnesses B
' . were categoric and clear. There was no contradiction in term for there
was no evidence on the side of the plaintiffs to the contrary. The conclu-
sion arrived at by the courts below that rents remained in arrears was,
therefore, perverse and totally unjustified. [lSSA-B, E; 156D, F, G]

-, CIVIL APPELLATE JURISDICTION: Civil Appeal No. 652
of 1982.
c

From the Judgment and Order dated 22.8.1980 of the Patna High
,,;, Court in Second Appeal No. 125 of 1977 (R).

Ashok K. Sen and D.P. Mukherjee for the Appellants. D

N .H. Hingorani, Ms. Kapila Hingorani and R.P. Wadhwani for
the Respondents.
'
).__ The Judgment of the Court was delivered by
E

-
THOMMEN, J. This civil appeal by special leave is brought by
the defendants against the judgment of the Patna High Court, Ranchi
Bench, in Second Appeal No. 125 of 1977 dismissing in limine their
appeal against the judgment of the learned District Judge in Title
--~ Appeal No. 2/5 of 1977 whereby the decree for eviction granted by the
learned Munsiff in Title Suit No. 3 of 1975 was in part affirmed. F
\
\
The plaintiffs (respondents) instituted the suit against the
defendants (appellants) for eviction under Section ll(l)(d) of the
Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 on the
ground that the defendants were in arrears of rent for the months of
February 1974 and May 1974 to August 1974. The defendants con- G
tested the suit on various grounds. Their main defence was that they
were not in arrears of rent as alleged by the plaintiffs. Decreeing the
T suit, the learned Munsiff found that rent for the months of February .
1974 and May 1974 to August 1974 had not been paid by the
defendants. This decree ·was affirmed by the learned District Judge ·in
part, that is, in respect of the alleged arrears for the months of May H
154 SUPREME COURT REPORTS [1990) 1 S.C.R.

and June 1974, and not for any other period. The finding of the First
Appellate Court was affirmed by the High Court by dismissing the
defendants' appeal in limine.

The question which arises for consideration is whether the courts
below were justified in coming to·the conclusion, which they did, and
B whether the impugned judgment of the High Court is liable to be
interfered with in the present appeal brought by special leave under
Article 136 of the Constitution.

Whether or not rent for the two months in question had been
duly paid by the defendants is a question of fact, and with a finding of
such fact, this Court does not ordinarily interfere in proceedings under
c Article 136 of the Constitution, particularly when all the courts below
reached the same conclusion. But where the finding of fact is based on
no evidence or opposed to the totality of evidence and contrary to the
rational conclusion to which the state of evience must reasonably lead,
then this Court will in the exercise of its discretion intervene to prevent
D miscarriage of justice.

The suit was instituted by the widow of Rameswarlal Sultania.
The plaint was verified by Rameswarlal Sultania's nephew on behalf of
the plaintiffs, and he deposed as PW-4. Neither the first plaintiff, the
widow nor the other two plaintiffs, her children testified in support of
E the plaint allegations. The newhew, PW-4 frankly admitted in the box
that he had no personal knowledge of the facts alleged in the plaint.
He did not know if the defendants were in arrears of rent or whether
his aunt, the first plaintiffs or anybody else had demanded rent from
the defendants. None of the witnesses on the side of the plaintiffs had

f
any personal knowledge of the facts alleged by the plaintiffs in regard
to the arrears of rent. PW-4 is, amongst the plaintiff's witnesses, the
only person who speaks to this fact, but admittedly speaks without any
claim of personal knowledge. In the circumstances, there is no reliable
(
f
oral evidence on the side of the plaintiffs to support the plaint allega-
tion regarding the arrears of rent. Nor is there any documentary evi-
!)ence in support of their case. ·

Un the other hand, the defendants categorically stated that they
had paid the rent for the two months in question to the first plaintiff.
At that time her husband was alive, but he was in no condition, on
account of poor health, to give a receipt for the rents paid. The
!)efendants, ill view of their personal relationship with him, did not
H insist upon a receipt.
DUTIA CYCLE STORES v. SMT. GITA DEVI [THOMMEN, J.] 155

DW-8 is one of the defendants. He categorically stated that for A
the months of May and June 1974 he paid the rent in June 1974 by
handing over the amount to the first plaintiffs daughter when she went
to his shop to collect the rent. Since she was a minor he accompanied
her to her house to make sure that the amount was received by her
mother, the fits! plaintiff. His evidence on the point is in the following
words: B
.)
L- "It is incorrect to say that I have not paid the rent for
May-June 1974. In June, the daughter of Rameshwar Babu
had come to demand Rs.200 towards the rent for May-June
1974 and I had given the (Illegible) at that time. I had
demanded the receipt, but he was unwell and as such did C
not give it".

"Rameshwar Babu was liot living in his senses in June, 74.
His brain was not in proper condition. In June, 74 I gave
Rs.200 to his wife (plaintiff), after taking the same to his
house. Even subsequently my brother had gone to pay the D
· rent to the plaintiff, Gita Devi for two-three times."

This evidence is supported by DW-7. He is the Accountant uf the first
defendant-firm of which defendants Nos. 2 and 3 who are brothers are
partners. Referring to these partners, and a neighbour by name Nandi
(DW-6), this is what he says: E
"In June 74, the defendants, Bibhuti and Prahalad
Chandra Dutta had given Rs.200 two hundred rupees to
the daughter of Rameshwar Babu. Nandi Babu, Bibhuti
Babu and I were (present) in the shop, at that time. This
money was paid towards the rent of the house". f
Nandi (DW-6) also speaks on this point:

"The defendants always used to pay the rent in my pre-
sence ....... In June, 1974, they had given Rs.200 as rent
to the younger daughter of Ramesh Babu in my presence. I G 1
told (them) that as she was a small girl, they should also
accompany her. Then Bibhuti Bhusan Dutta reached the
r girl."

The evidence of these three defence wiLlesses is that the rent for
the months of May and June. 1974 had been duly paid in June 1974 in j.j
156 SUPREME COURT REPORTS [1990] 1 S.C.R.

the sum of Rs.200 by the second defendant (DW-8) to the landlord,
A
Rameswarlal Sultania by handing over the amount to his minor daugh-
ter who went to the defendants' shop to collect the same and by
accompanying her to her house to see to the safe delivery of the same
to the first plaintiff, her mother who obviously received it on behalf of
her husband, the landlord. The evidence seems to be clear on the point
B and we see no contradiction in this.
The courts below did not appreciate that this much evidence was
staring in the face, and there was total absence of evidence on the
point on the side of the plantiffs to contradict the defence evidence.
The plaint allegation regarding arrears was not spoken to on the
plaintiffs' side by any person having personal. knowledge. The
c plaintiffs made no attempt to let in any reliable evidence on the point.
The evidence of PW-4 who admittedly had no personal knowledge on
the point is no evidence at all. On the other hand, the evidence of
-
DW-8, supported by the evidence of his Accountant (DW-7) and his
neighbour (DW-6) is categoric and clear.
D The learned District Judge disbelieved this evidence on the
assumption that DW-6 contradicted himself when he stated that the
amount was paid to the daughter and also to her mouther. In his
written statement he stated that the amount had been paid to the
landlord, Rameswarlal Sultania.
In the light of what we have stated above, we see no contradic-
E
tion in these statements. The amount was, in our view, rightly stated to

-
have been paid to Rameswarlal Sultania when it was handed over to
the daughter to be paid over to her mouther, viz., the first plaintiff
who was reasonably understood to have received it for and on behalf
of her husband. If the statement is true, there is no contradiction in it
and it is categoric and clear. We see no reason to suspect that it is not
F
true for there is no evidence on the side of the plan tiffs to the contrary.
As stated earlier, there is no evidence at all on the side of the plaintiffs
that rents were in arrears. In the absence of any reason to disbelieve
the clear and categoric testimony of the defence witnesses on the
point, we see no reason to suspect that the rents remained in arrears.
In the circumstances, we are of the view that the courts came to the
0 conclusion, as they did, without any evidence whatsoever to support it
and contrary to the available evidence let in by the defence. Their
conclusion was, therefore, perverse, irrational and totally unjustified.
For this reason, we set aside the impugned decree and judgment of the
courts below. The appeal is allowed with costs.
H
P.S.S. Appeal allowed.

\
INDIAN PISTON LIMITED
A
v.
COLLECTOR OF CENTRAL EXCISE, MADRAS
JANUARY 30, 1990
[M.H. KANIA AND KULDIP SINGH, JJ.]
B
Central Excises and Salt Act, 1944/Central Excise Rules, 1944:.
Sections 4 and 1JB/ Rule 233B-Excise duty-Sales by assessee to distribu-
tors-Distributors treated as 'related persons' by Department-Price list
filed with protest-An appeal distributors held 'independent buyers'-
Refund on excess duty-Whether arises.
The appellant was a manufacturer of motor vehicle parts falling
under Item 34-A, and components for I.C. Engines falling under Item 68, C
of the Central Excise Tariff.
The marketing pattern of.the appellant was that they sold goods in
·-~ the wholesale to O.E. manufacturers, Transport Undertakings and Go-
vernment Bodies, and the requirements of the replacement market were D
met by sale in the wholesale to other persons who were met by sale in the
wholesale to other persons who were designated by them as distributors/
primary wholesale bnyers on the basis of agreements with such distribu\ors.
The Department took the view that sales by the appellant to its
distributors would be considered as sales to 'related persons' on account of
the amendment to sec. 4 of the Central Excises and Salt Act, 1944, which E
came into force from October 1 1975, and directed the filing of revised
price lists showing a discount of 12 1/2% from the price at which the goods
supplied by the appellant were sold by its distributors to independent buyers.
The appellant complied with this direction under protest taking up
the contention that the distributors were also a class of independent
buyers, which was however rejected by the Assistant Collector. F
On appeal the Collector (AJ>peals) took the view that disttibutors
were not related persons relying on this Court's decision in Union of1ndia
v. Bombay Tyres International Ltd., [1983] 14 ELT 1896.
The appellant the!' claimed refund of the excess amount of excise
duty paid. This was rejected by the Assistant Collector on the ground G
that except in respect ofsales to wholesale distributors/primary whole-
sellers and O.E. manufacturers, the excise duty had been paid by the
y appellant voluntarily.
The Customs, Excise. and Gold (Control) Appellate Tribunal dis-
missed the Appellant's appeal. H

157
158 SUPREME COURT REPORTS [1990] 1 S.C.R.

In the appeal to this Court it was conteded on behalf of the appel-
A
lant that the language of section 4(1) of the Central Excises Act, indicates
that there could be only one normal price for sales to independent
distributors, and that as the letter of protest sent by the appellant
covered the entire payment of exlcse duty in those cases where the normal
price was fixed on the footing that the distributors of the appellant were
B related persons, no question of limitation would arise iil considering the
application of the appellant for refund.
On behalf of the respondent, it was contended that the protest ,J
made b~ the appellant must he read as limited to the cases of sales by the
appellant to the wholesale distributors/primary wholesellers and to O.E.
manufacturers and that the other categories of sales must be held not to
C be covered by the protest.
Allowing the appeal, this Court,
HELD: (1) In view of the fact that the distributors of the appellant
were finally held not to be related persons; the excise duty collected in :....
respect of the difference between the price at which the goods were sold
O by the appellant fo the distributors and the price to which the said goods
were sold by the distributors to independent buyers calculated as
ilforesaid, must be held to be excess duty. [162D-E]
lndian Oxygen Ltd. v. Collector of Central Excise, [1988] 36
E.L. T. 723, Collector of Central Excise, Madras v. Ashdk Layland Ltd.,
E Madras, [1987] 29E.L.T. 530referredto.
(2) The protests tiled by the appellant clearly took up the conten-
tion 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
F were r~lated persons. [162E-F]
Indian Cements Ltd. v. Collector of Central Excise, [1989] 2
S.C.C. 676 r~ferred to.
(3) Rule 233B of the Excise Rules does not prescribe any particular
form of protest and hence it is not jlossible to say on the basis of this rule
G that the appellant-assessee in this case must be deemed to have paid the
duty without protest. [163E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. y
1430-36(NM) of 1987.
From the Judgment and Order dated 23.4.1987 of the Custom
Excise and Gold (Control) Appellate Tribunal, South Regional Tri-
INDIAN PISTON LTD. v. C.C.E. (KANIA, J.] 159

bunal, Madras in Appeal Nos. 174, to 17b and 240 to 243 of 1986 MAS in
A
Order No. 247 of 1987.
Anil B. Divan, H.K. Dutt, S. Ramasubramanium, Krishna
Srinivasan and Ms. Midula Ray for the Appellant.
A.K. Ganguli, A. Subba Rao and P. Parmeshwaran for the Respondent.
B
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 C
follows.

The appellant is a manufacturer of motor vehical parts falling
under Item 34-A of the Central Excise Tariff and components for I.C.
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 D
to July 21, 1984. The marketing pattern of the appellant was that they
sold goods in the wholesale to O.E. manufacturers, Transport Under-
takings 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 appellant as distributors/primary
wholesale buyers on the basis of agreements with such distributors. E
The amendment to section 4.of the Central Excises and Salt Act, 1944
(hereinafter 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 persons. The Department, therefore, directed the
appellant to file price lists in Part IV in the form prescribed for sales to F
related persons. The appellant filed the price lists in Part II, Part IV
and Part VI. The price lists filed in Part II 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 Part IV that the
Assistant Collector on the basis of the aforesaid view directed the G
appellant to file revised price lists showing a discount of 12-1/2% from
the price at which the goods supplied by the appellant were sold by
their distributors to independent buyers. The appellant complied with
this direction under protest taking up the contention that the distri-
butors were also a class of independent buyers. This claim was rejected
by the Assistant Collector, who took the view that the distributors H
160 SUPREME COURT REPORTS [1990] 1 S.C.R.

A were related persons and hence the prices charged by these distri-
butors 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 persons, on the basis of the decision of this Court in the
case of Union of India & Ors. v. Bombay Tyres International Ltd.,
B [1983] 14 E.L.T. 1896. 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 distributors were not related persons, the excess ~
amount should be refunded to it. This contention was rejected by the
Assistant Collector and on the ground that except in respect of sales to
wholesale distributors/primary wholesellers and O.E. manufacturers,
C the excise duty had been paid by the appellant voluntarily. Against this
decision, the appellant preferred an appeal to the Tribunal. The Tri-
bunal, 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
D 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 0.E. manufacturers. On the basis of these
conclusions, the Tribunal dismissed the appeal of the appellant. The
E present appeals are directed against this decision of the Tribunal.

It was submitted by Mr. Divan, learned counsel for the appel-
lant, 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 dis- ~
p tributors were held not to be related persons, it was the wholesale
price at which the goods were sold b)'.' the appellant to the distributors
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
Jllade under protest and that the returns were originally filed only on
the basis of the single normal price, namely, the price at which the
G 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
H excise is chargeable on any excisable goods with reference
INDIAN PISTON LTD. v. C.C.E. [KANIA, J.[ 161

to value, such value s&all, subject to the other provisions of
A
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 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 B
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
4(1) suggests that there can be only one normal price for sales to
indpendent distributors.
c
Learned counsel for the appellant also drew our attention to the
decision of this Court in Indian Oxygen Ltd. v. Collector of Central
./'-. Excise, [1988] 36 E.L.T. 723. It has been observed by this Court in that
judgment as follows (para 6 of the said report):
D
"It is necessary to reiteqtte that value for assessable goods
must be determined in term of section 4 of the Act. The
said section 4(1) 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 E
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 considera-
tion for the sale."
F
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 Jnilia Cements Ltd. v. Collector of Central Excise, [ 1989] 2
S.C.C. 676 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
G

appellant showed that the appellant was not accepting the liability
y 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). H
162 SUPREME COURT REPORTS [1990] 1 S.C.R.

A It was submitted by learned counsel for the appellant that in the
present case the letter of protest sent by the appellant, on a com-
monsense 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 considering the
B 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 Excise, Madras v. Ashok Leyland Ltd., Madras,
[1987] 29 E.L.T. 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 available at the time
and place of removal from their main dealers. The contention of the
c Department in that case that the removals were not the subject matter
of the original adjudication by the Assistant Collector and hence the
assessments had become final, was rejected.

In our opinion, the submission on behalf of the appellant is
D well-founded. In view of the fact that the distributors 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 dis-
tributors 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
E 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
p 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
G limited to the cases of sales by the appellant to its wholesale dis-
tributors/primary wholesellers and to O.E. manufacturers and that the
other categories of sales like stock transfers, clearances to re.tail 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 &
H Ors. v. Madras Rubber Factory Ltd. & Ors., [1987] 27 E.L.T. 553
INDIAN PISTON LTD. v. C.C.E. [KANIA, J.l 163

(S.C.) where it has been held (page 20 of the report) that the different A
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 B
different classes of buyers are specifically recognised under proviso (i)
of section 4(1) of the Central Excises Act, therefore, merely because
the product is sold at a lower price to the Government and its depart-
ment 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
tut constitutes a normal price for the Government as a class of buyers
c
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 particu-
lar category of buyers in respect of the sales in question. D

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 E
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.
F
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 asses-
see were persons related to it, that is, in respect of the other categories
of sales, namely, retail sales, sales to dealeff., sales to State Transport G
Undertakings and export clearances. Looking, however, to the facts
and circumstances of the case, there will be no order as to costs of the
y appeals. The orders for costs already made shall, however, stand.
'
N.V.K. Appeal allowed.
H