JUDGMENT H. N. Seth, J. - This is a petition under Art. 226 of the Constitution. The petitioner is a partnership concern which carries on business of manufacturing glass and glasswares. Its factory is situated at Etmadpur (Agra) . In the normal course the petitioner cleared its product from the factory after payment of excise duty. The Superintendent of Inspection, inspected the records for the factory for the period April, 1969 to July, 1969, and amongst others made the following observations :- (1) That Demands on loading and forwarding charges form 29-11-1968 to July 1969, on Rs. 22384/- should be raised at 15% advolarem which works out to be Rs. 3357.60. (2) The postage charges in the bills from April 1969, to July 1969, total Rs. 122.70, the duty on the same works out to be Rs. 18.40. (3) The Dharmada amounted to be Rs. 1070.54 for the period under review the duty worked out to be 160.54 paise. There observations were communicated to the petitioner on 16th October, 1969 (Annexure E to the petition) along with the demand notes, requiring it to pay duty amounting to Rs. 17.02 on Dharmada and postage and Rs. 3357.60 on loading and forwarding charges (Annexure F to the petition) . The petitioner contends that this demand of duty in respect of Dharmada, postage and loading and forwarding charges is illegal and without jurisdiction. It therefore prays that a writ of Certiorari be issued quashing the order mentioned in Annexure E and the bill made on its basis Annexure F. It further prays that a writ of Mandamus be issued to the respondents commanding them not to impose and realise duty, on the loading and forwarding charges, Dharmada and postage, from the petitioner. 2. It is significant to note that the two demand notes, Annexure E, purport to demand duty from the petitioner on the value of Dharmada, postage and loading and forwarding charges. They do not state that the duty is being demanded in respect of these items as they form part of the value of the goods manufactured and cleared by the petitioner. 3. They do not state that the duty is being demanded in respect of these items as they form part of the value of the goods manufactured and cleared by the petitioner. 3. In the writ petition the petitioner quoted instance where a question about payment of excise duty in respect of these items arose in the case of other manufacturers, and the Collectorates at Kanpur and Agra took the view that no excise duty was payable in respect of these items. It complains that it has been subjected to a discriminatory treatment, inasmuch as the respondents have charged the duty in respect of these items from the petitioner but did not charge the same from other manufacturers. It alleged that duty in respect of these items, to the extent of Rs. 10,000/-, was charged and realised from it upto November 13, 1967. Various representations were made in respect of the illegal imposition of duty but those representations remained undecided. Further, the petitioner filed three appeals dated 21-4-1967 against the order of the Assistant Collector Central Excise, charging duty on these items in respect of the clearances made during the period 10-7-1964 to November 1966, but these appeals also were not decided. In the year 1967 the Collector Central Excise not manufacturers of glass and glasswares at Firozabad and it was made clear that no excise duty was leviable in respect of forwarding and loading charges. As a result of this, the Excise Department stopped charging duty on this item ever since 14th of November, 1967. All of a sudden the impugned demand was raised by the Department in the year 1969. In the special circumstances of the case, the petitioner claimed that the normal remedy provided by the Act, for challenging an improper demand raised by the Assistant Collector is not adequate and therefore it had to approach this Court praying for the exercise of its extraordinary jurisdiction. 4. The Superintendent Central Excise contested the prayer made in the writ petition and filed a counter affidavit. He alleged that during the relevant period the petitioner paid excise duty on the clearances effected by it on the basis of a price list which mentioned the rates of the glass products manufactured by it. It was discovered that these rates slid not include Dharmada, postal charges, forwarding and loading charges, which were charged by the petitioner from its customers. It was discovered that these rates slid not include Dharmada, postal charges, forwarding and loading charges, which were charged by the petitioner from its customers. These items should have been included while determining the wholesale cash price of the products manufactured and clewed by the assessee. He claims that Section 4 of the Central Excise and Salt Act does not contemplate the payment of duty on ex factory rate. It contemplates payment of excise duty on the value of the goods cleared, calculated on the basis of the wholesale price which is actually paid to the petitioner at its factory gate. Counter affidavit goes on to state that according to Section 4 of the Act, the value for purposes of determining the duty is the wholesale cash price for which the article is capable of being sold at the time of its removal from the factory. The items on which the duty is being demanded, go to constitute the price which the petitioner charges from its customers. The whole of such price becomes the wholesale cash price of the article at which they can be sold at the time of their delivery from the factory. 5. The Superintendent admitted that at one stage the Collector Central Excise had taken the view that the forwarding charges were not to be included in the cash price, but when the matter came to the notice of the Finance Ministry, it took the view that no abatement on account of expenses incurred by a manufacturer on freight charges should be allowed. This view of the Ministry was communicated to the Collector under circular letter dated 14th of November, 1968. Thereafter, the duty in respect of these charges also began to be realised. The charge of discrimination levelled by the petitioner was refuted and it was alleged that after 14th of November 1968, in every case, duty has been charged on the value of the goods determined after including Dharmada, postage charges and forwarding and loading charges. The Superintendent claimed that present one was a case where there was short recovery of duty and under Rule 173-J of Chapter VII-A of the Central Excise Rules, the period during which the duty short-levied could be recovered was one year. In the instant case the assessment where under the duty was short levied appertained to the period between 29-11-1968 and July, 1969. In the instant case the assessment where under the duty was short levied appertained to the period between 29-11-1968 and July, 1969. The demand raised on 12th September, 1969, therefore was well within time. 6. The petitioner then filed a rejoinder affidavit contending that the approved factory rates of glass products were to be deemed to be the wholesale price at the factory gate and the postal charges, forwarding and loading charges and Dharmada could not in any view of the matter be factors for consideration of the whole-sale price, i.e., the value of the goods for purposes of duty. It is contended that these items therefore could not be included in the value of the goods. The petitioner claimed that it was only at the request of the purchasers that it took that trouble of loading, forwarding and posting, and charged them for the expenditure incurred by it on their behalf. This was done after delivery of the products had been taken and the goods were removed from the factory gate after payment of Excise Duty in accordance with the rules framed under the Central Excise and Salt Act. It was denied that the disputed items, charged by the factory, formed part of the wholesale cash price. It was also claimed that provisions of Rule 173-J did not apply to the facts of the present case. The proceedings for recovery of duty were governed by rule 10. The demand raised beyond 3 months from the date on which the duty is said to have been short levied, is therefore barred. Along with this rejoinder affidavit, the petitioner also filed the copies of the orders passed by the Collector Central Excise in the appeals that had already been filed by him in respect of earlier years. The Collector Central Excise dismissed those appeals but made observations that in the instant case all the wholesale deals were effected at the factory gate and hence it could be safely said that a wholesale market existed at the factory gate. 7. The Superintendent, Central Excise thereafter filed a supplementary affidavit alleging that the petitioner had not produced any evidence before the court to show that the goods were removed by the petitioner from their godown at the request of the purchasers. He further alleged that there was no wholesale market for the goods produced by the petitioner at its factory gate. The Superintendent, Central Excise thereafter filed a supplementary affidavit alleging that the petitioner had not produced any evidence before the court to show that the goods were removed by the petitioner from their godown at the request of the purchasers. He further alleged that there was no wholesale market for the goods produced by the petitioner at its factory gate. Etmadur is a small railway station where there is no wholesale market for these goods. In the circumstances, the whole-sale price of the goods was not ascertainable. The petitioner was therefore liable to pay excise duty on the price which he actually charged from the purchasers. The petitioner charged the fixed price along with forwarding and loading charges, postal charges and Dharmada etc., from the purchasers before removing them from the factory. Hence for the purposes of excise duty, all these items would go to constitute the wholesale price of the goods. 8. The stand taken by the respondent in the counter affidavit and that taken in the supplementary affidavit do not appear to be consistent. According to the deponent, Dharmada, postal and loading and forwarding charges realised by the petitioner go to constitute the price of the goods manufactured in the factory. The stand taken in paragraph 5 of the counter affidavit is that these charges go to constitute the whole-sale price charged by the petitioner, and as such the duty should be calculated on the value indicated by the wholesale price charged by the petitioner. The claim, that duty was payable on the wholesale cash price of the goods, indicates that it was being charged under Sec 4 (a) of the Central Excise and Salt Act. However, the stand taken in the supplementary affidavit is that there is no wholesale market for the goods produced by the petitioner at its factory gate at Etmadpur and, therefore, the wholesale price of the goods was not ascertainable and as such the petitioner was liable to pay excise duty under Section 4 (b) on the price which it actually charged from its customers. 9. 9. Sec. 4 of the Central Excise and Salt Act provides that where under the provisions of that Act any article is chargeable with duty at a rate dependent on the value of the article, such value will be deemed to be (a) the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold at the time of the removal of the article chargeable with duty from the factory or any other premises of manufacture or production for delivery at the place of manufacture or production or if a whole-sale market does not exist for such article at such place at the nearest place where such market exists or (b) where such price is not ascertainable the price at which an article of the like kind and quality is sold or is capable or being sold by the manufacturer or producer or his agent at the time of the removal of the article chargeable with duty from such factory or other premises for delivery at the place of manufacture or production or if such article is not sold or is not capable of being sold at such place, at any other place nearest thereto. 10. Clause (a) provides that for purposes of duty, the value of goods will be the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold. Latter part of this clause which provides that if a wholesale market does not exist for such an article at the place where the factory is situated then the wholesale cash price of such article at the nearest place where such market exists will be considered for determining the value of the goods, makes it clear that the wholesale price mentioned in earlier part of Sec. 4(a) is the wholesale price in the wholesale market at the place where the factory is situated. The language of this Section further makes it clear that the actual wholesale price that is charged by the factory in respect of the goods is not the material factor for determining the value of the goods while computing the duty payable. What is material is the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold in a whole-sale market. 11. What is material is the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold in a whole-sale market. 11. According to the averments made in the counter affidavit, the duty was being charged on the wholesale cash price of the goods cleared by the respondents. These averments indicate that what the respondents took into consideration was the actual wholesale price charged by the petitioner and not the wholesale price for which similar goods are sold or are capable of being sold in the market where the factory is situated and failing such a market, in the nearest wholesale market. We asked the learned counsel for the respondents whether any attempt was made in this case to find out the prevailing wholesale rates for the goods either at Etmadpur or at any other nearest place where such market exists. Learned counsel replied that under Sec. 4. it was not necessary to do so. If the petitioner itself entered into wholesale transactions at the factory gate, a wholesale market will be deemed to come into existence and the wholesale price charged by it will itself be the wholesale cash price contemplated by Section 4 (a) . We are unable to agree with this contention. Merely because the petitioner entered into wholesale transactions at the factory, it does not mean that there exists a whole-sale market at the factory gate. The reply given by the learned counsel necessarily implies that the value of the goods has not been determined on the basis of wholesale price of similar goods in a whole-sale market as provided in clause (a) of Sec. 4. 12. The stand taken in the supplementary affidavit on the other hand is that as there is no wholesale market for the goods produced by the petitioner factory at its gate, it is therefore not possible to ascertain the wholesale market price of these goods. In the circumstances, the value of the goods could only be computed under clause (b) of Section 4 which provides that where it is not possible to ascertain such price, the value of the goods for purposes of duty will be the price at which an article of the like kind and quality is sold or is capable of being sold at a particular time. According to this stand also, the value of the goods for the purposes of duty, has not being computed on the basis of whole-sale cash price and no attempt has been made by the respondents to determine the wholesale cash price of the goods cleared under clause (a) also. 13. A perusal of clauses (a) and (b) of Section 4 makes it clear that primarily the goods of the purposes of calculation of duty are to be valued on the basis of wholesale cash price for which they are sold or are likely to be sold in a wholesale market where the factory is situated. If there be no such market at the place where the factory is situated, the whole-sale prices of such goods in the nearest wholesale market will have to be taken into consideration. It is only when it is not possible to ascertain such value that recourse can he had to clause (b) of Section 4 and to charge excise duty on the value calculated on the basis of actual price charged for that article. In this case the Superintendent Central Excise, in paragraph 5 of the Supplementary affidavit, merely stated that there was no wholesale market for the goods manufactured at the petitioner's factory, at its gate or at Etmadpur where the factory is situated. He did not say that there was no wholesale market for those goods at any other place. If such a market exists normally it will be possible to ascertain the wholesale cash price of the goods in the market. Merely because no wholesale market exists at the place where the factory was situated it does not mean that there is no whole-sale market for the goods and that their value cannot be ascertained as provided in Section 4 (a) . As no case for not determining the value of the articles under Section 4 (a) has been made out, the respondents could not proceed to value the goods and charge duty as provided in Section 4 (b) of the Act. 14. In the circumstances, even if the case of the respondent that Dharmada, postage and loading and forwarding charges form part of the price of the goods sold by the petitioner, is accepted it is not open to them to charge duty on the basis that the price actually charged represents the value of the goods. 14. In the circumstances, even if the case of the respondent that Dharmada, postage and loading and forwarding charges form part of the price of the goods sold by the petitioner, is accepted it is not open to them to charge duty on the basis that the price actually charged represents the value of the goods. This could be done only if the wholesale cash price for which similar goods are sold in a whole-sale market as mentioned in Section 4 (a) did not exist or for some reason the same was not ascertainable. Without ascertaining the wholesale cash price for which goods similar to those produced by the petitioner were sold or were capable of being sold in a wholesale market either at the place where the factory is situated or if no such market exists at that place, at the nearest whole-sale market, it could not be said that the duty had been short levied, the impugned demand therefore cannot be sustained. 15. Learned counsel for the petitioner also argued that under rule 10 if the duty had been short levied through inadvertence, error, collusion or misconstruction on the part of an officer, the petitioner could be required to pay that amount on a written demand being raised by a proper officer within three months from the date on which the duty of charge was paid. The demand in this case has been raised beyond a period of three months and therefore it was without jurisdiction. Learned counsel for the respondents on the other hand urged that the demand raised in this case was covered by rule 10-A, for which no period of limitation has been prescribed. Reliance was also placed on rule 173-J and it was urged that in any case the demand could be raised within one year. It was, therefore, claimed that the demand raised was not barred by time. As this point was not specifically taken in the writ petition, we refrain from expressing any opinion on it. As discussed above, the demand raised in this case is otherwise vitiated and deserves to be quashed. It will be open to the petitioner to raise the question about limitation if and when the Department raises the demand over again after calculating the duty in accordance with Section 4 (a) of the Act. 16. As discussed above, the demand raised in this case is otherwise vitiated and deserves to be quashed. It will be open to the petitioner to raise the question about limitation if and when the Department raises the demand over again after calculating the duty in accordance with Section 4 (a) of the Act. 16. In the result, we allow the petition with costs and quash the demand raised as contained in Annexure F of the writ petition.