A. N. SEN, S. C. GHOSH ( 1 ) THIS appeal arises out of a judgment and order dated 27th September, 1974 passed by Masud. J. By and under the said judgment and order Masud, J. held that pending applications filed by the respondents for assessment of Excise duty under S. 4 (a) of the Central Excise and Salt Act, 1944 shall be determined by the Excise Authorities in accordance with the principles of law down in the case of A. K. Roy and Anr. v. Voltas Limited reported in AIR 1973 SC 225 , that is to say n the basis of the wholesale cash price comprising manufacturing cost and manufacturing profits only. By and under the said judgment and order Masud, J. disallowed the petitioner's claim for declaration that all assessments of Central Excuse duty made by the respondents for the period 1961 till the date of the making of the application under Article 226 of the Constitution by the appellant are null and void and refused to order re-assessment of the same on the basis of the law laid down by the Supreme Court in the said case A. K. Roy and Anr. v. Voltas Limited. ( 2 ) AGAINST the order mentioned earlier passed by Masud, J. in favour of the appellants the respondents have also filed cross-objection. ( 3 ) THE appellant is a manufacturer of diverse electric lamps such as Incandescent lamps, fluorescent lamps, miniature, pre-focus and gascous discharged lamps otherwise known as M. V. D. Lamps. The said goods are excisable goods falling under Item No. 32 (1), 32 (2) and 32 (3) of the First Schedule of the Central Excise and Salt Act, 1944 (hereinafter mentioned as the "said Act" ). ( 4 ) THE appellant has a factory No. 1 Taratola Road, Garden Reach, Calcutta known as "elmi factory". The appellant in the said factory besides the above mentioned lamps also manufacture lamp components some of which are eligible under Item No. 23 (A) (3) of the First Schedule of the said Act; but are exempted at present. The other lamp components manufactured by the appellant are not eligible. ( 5 ) FROM the very commencement of the business, the appellant has been selling its products only to a few customer companies namely Philips (India) Limited, General Electric Co. The other lamp components manufactured by the appellant are not eligible. ( 5 ) FROM the very commencement of the business, the appellant has been selling its products only to a few customer companies namely Philips (India) Limited, General Electric Co. of India Limited, Crompton Greaves Limited and prior to the amalgamation of Associated Electric Industries (India) Limited with the General Electric Co. India Limited also to the said Associated Electrical Industries India Limited. The said products are sold to the said companies as per their orders and specifications in their respective brand names like 'philips', 'osrams', 'mazda' and 'crompton'. The appellant sells its goods to the said customer companies at a price which includes actual manufacturing cost and manufacturing profits only. ( 6 ) THE customer-companies sell the products purchased from the appellant in their respective brand names through their respective sale-organisations. The said customer-companies have got their respective dealers and distribution arrangements as well as sales and distribution staffs. They bear all selling expenses such as staff cost, organizational overhead, market expenses, freight, octroi and other taxes. The said customer-companies also offer trade discount to their dealers. ( 7 ) IN or about 1955 Excise duty came to be levied for the first time on the products of the appellant. In the beginning Excise duty used to be levied and collected on 'specific' basis on the products of the appellant. With the commencement of the production of the above mentioned M. V. D. lamps, the respondents levied and collected Central Excise duty on the said lamps on ad valorem basis instead of specific duty basis. With effect from March, 1969, the respondents, commenced to levy Central Excise duty on all lamps on ad valorem basis except on miniature pre-focus lamps which were continued to be assessed on specific basis till March 16, 1972. ( 8 ) UNDER S. 4 (a) of the said Act, the value for the purpose of Excise duty is deemed to be the wholesale cash price at which the products of the appellant are sold at the time of removal from the factory of the appellant. ( 8 ) UNDER S. 4 (a) of the said Act, the value for the purpose of Excise duty is deemed to be the wholesale cash price at which the products of the appellant are sold at the time of removal from the factory of the appellant. But the products of the appellant as soon as they are being lifted upon ad valorem basis have been and are assessed and duty collected on them not on the prices at which the appellant sells its products to the said customer companies, but on the basis of the price list of the said customer companies; although the price at which the appellant sells its goods to customer companies represent the manufacturing cost plus the manufacturing profits incurred and/or made by the appellant. ( 9 ) SINCE 1968 Excise Duty is levied upon and collected on the products of the appellant under the Self Removal Procedure. Ever since the introduction of the said procedure in 1968, the appellant has been filing with the proper officer for its approval a list in the approved form in quadruplicate under Rule 173b of the Central Excise Rules (hereinafter referred to as the said Rules) and has been also filing with the proper officer for his approval price list in the form and manner showing the price of each class of goods under Rule 173c of the said Rules. The applicant maintains an account current with the Chief Accounts Officer, Central Excise, Calcutta and Orissa within the jurisdiction of the Court. In regard to all payments of duty required to be made under the said Rules lamp sum payments are made by the appellant to the Respondent No. 2 at Calcutta within the said jurisdiction. The appellant deposits such lump sum amount in the account of the appellant with the Reserve Bank of India at its Calcutta Office at No. 15, Netaji Subhas Road, Calcutta - 1, with instruction to transfer the said sum to the account of the said Respondent No. 1 also with the said Bank at its said Calcutta Office. Such payments are shown as credits to the appellant. After approval of the list mentioned hereinabove the appellant is allowed to remove the goods and duty payable thereon is debited to the appellant against the credit mentioned hereinabove. The assessment of the self-removal procedure is made in Form R. T. 12. Such payments are shown as credits to the appellant. After approval of the list mentioned hereinabove the appellant is allowed to remove the goods and duty payable thereon is debited to the appellant against the credit mentioned hereinabove. The assessment of the self-removal procedure is made in Form R. T. 12. ( 10 ) PREVIOUS to the introduction of self removal procedure in 1968 assessment of duty on the products of the appellant was made on physical control basis that is to say, the assessment officer in each case after being satisfied with the selling price allowed clearance upon payment or production of evidence of payment of duty payable thereon. ( 11 ) FROM the beginning the assessable value of the products of the appellant has been purported to be determined by the respondents not on the price at which the appellant has been selling the said goods to its customer companies but on the basis of the price list of the said customer companies less the trade discount allowed by the customer companies. ( 12 ) THE appellant has all along been paying the Excise duty as assessed and demanded by the respondent on the mistaken belief that the duty was payable on the basis of the price list of its customer companies less trade discount allowed by the customer companies. The appellant for the first time discovered the said mistake on 1st March, 1973 from the judgment of the Supreme Court in Civil Rule 47 (N) of 1972 A. K. Roy and Anr. v. Voltas Limited delivered on 1st December, 1972. The appellant then for the first time came to know that the levy and assessment of Excise duty on the products of the appellant on the basis of the price list of the said customer companies less trade discount allowed by the said customer companies upon the products of the appellant was without jurisdiction and null and void. The appellant then for the first time came to know that the levy and assessment of Excise duty on the products of the appellant on the basis of the price list of the said customer companies less trade discount allowed by the said customer companies upon the products of the appellant was without jurisdiction and null and void. ( 13 ) SO the applicant mad the application in the Constitutional Writ Jurisdiction in the Original Side of this Court for the issue of the following writs:" (A) A writ of and/or an order and/or direction in the nature of Certiorari directing the respondents to transmit all papers and documents relating to the orders of assessment for each of the year commencing from 1961 till date including the orders of assessment and levy and collection of duty to the extent the assessment made by the respondents on ad valorem to this Honourable Court so that the same shall be quashed and conscionable justice is done; (b) A Writ of and/or an order and/or direction in the nature of Mandamus directing the respondents to assess and recover excise duty in accordance with law on the manufacturing cost and manufacturing profits, if any, of the products of your petitioner and/or refrain from levying and collecting any duty from your petitioner on anything else than the manufacturing cost and manufacturing profits. (c) An order and/or direction declaring all assessments to Central Excise duty made by the respondents themselves by their agents or servants for the period till date as void and illegal and not binding on your petitioner to the extent the said purported assessment have been made on the basis of customer companies' selling costs and selling profits. (d) A Writ of and/or an order and/or direction in the nature of mandamus directing the respondents to forthwith refund to your petitioner the sum of Rs. 1,98,40,969. 67 and interest thereon illegally levied upon, demanded and collected from your petitioner for the period 1961 to till date on the basis and to the extent of the extent of the assessable value of the customer companies' selling cost and selling profits have been included. " ( 14 ) RULE Nisi was issued in the said application made by the appellant and the matter came up for final hearing before Masud, J, when his Lordship was pleased to pass the orders mentioned hereinabove. " ( 14 ) RULE Nisi was issued in the said application made by the appellant and the matter came up for final hearing before Masud, J, when his Lordship was pleased to pass the orders mentioned hereinabove. Against the said order this appeal has been filed by the appellant and the cross objections have been filed by the Respondents. ( 15 ) MR. Subrata Roy Chowdhury, appearing on behalf of the appellant, submitted that in the instant case as in the case of Attic Industries and Hind Lamps there is no disparity of prices charged by the manufacturer from its customer Companies. Thus in this case the only basis for levying duty under the said Act is as to whether the prices the appellant charges is at arms length or in bona fide commercial transaction. There cannot be any doubt in the instant case that the transaction are bona fide and at arms length because it is clear from the records that the prices the appellant charges from its customer companies consists of manufacturing cost and manufacturing profit. There is no law which compels the appellant to sell its products to its customer companies at a higher price. Mr. Roy Choudhury challenges the findings in the judgment appealed against that all assessment orders made in the past are not nullities or made in excess of jurisdiction or that the levy of Excise duty in excess of orders of assessment made in the past is a mere mistake in calculation of error of fact. ( 16 ) FURTHER Mr. Roy Choudhury submitted that the findings of the learned Judge that the assessments made in the past were made on the representation made by the appellant who filed the requisite forms necessary to be filed for the purpose of assessment of Excise duty and represented therein the price on which the Excise duty was to be assessed and hence the appellant must be estopped from challenging the said assessments as erroneous. According to Mr. Roy Choudhury, the error committed by the Respondents was jurisdiction error and thus all assessments made in the past were null and void. The power to levy excise duty is the right, which according to Mr. According to Mr. Roy Choudhury, the error committed by the Respondents was jurisdiction error and thus all assessments made in the past were null and void. The power to levy excise duty is the right, which according to Mr. Roy Choudhury, flows from S. 3 of the said Act which is the charging section and the scope of assessment is circumscribed by the provisions of the said S. 3 of the said Act. Section 4 of the said Act lays down the method for determining value for levying duty. The said Ss. 3 and 4 are set out hereunder. "3. DUTIES specified in the First Schedule to be levied. (1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India and a duty on salt manufactured in, or imported by land into any part of India as, and at the rates, set forth in the First Schedule, (1a) The provisions of sub-s, (1) shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of, the Government of a State (other than a Union Territory) and used for the purposes of a trade or business of any kinderried on by, or on behalf of that Government, or of any operations connected with such trade or business as they apply in respect of goods which are not produced or manufactured by any Government. (2) The Central Government may, by notification in the Official Gazette, fix for the purpose of levying the said duties, tariff values of any articles enumerated either specifically or under general headings, in the First Schedule as chargeable with duty ad valorem and may alter any tariff values for the time being in force. (3) Different tariff values may be fixed for different classes of descriptions of the same articles. ""4. Determination of value for the purposes of duty. (3) Different tariff values may be fixed for different classes of descriptions of the same articles. ""4. Determination of value for the purposes of duty. Where under this Act, any article is chargeable with duty at a rate dependent on the value of the article, such value shall 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 wholesale 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 of 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. Explanation.- In determining the price of any article under this section, no abatement or deduction shall be allowed except in respect of trade discount and the amount of duty payable at the time of the removal of the article chargeable with duty from the factory or other premises aforesaid. " ( 17 ) ANY assessment made on any sum which is in excess of manufacturing cost and manufacturing profit would be void. Mr. Roy Choudhury submitted that the customer companies were not special or favour buyers for the following reasons: (1) The appellant is not a shareholder of any of the customer company nor any of the customer company is a shareholder of the appellant. (2) The price charged by the appellant is reasonable and adequate. Mr. Roy Choudhury submitted that the customer companies were not special or favour buyers for the following reasons: (1) The appellant is not a shareholder of any of the customer company nor any of the customer company is a shareholder of the appellant. (2) The price charged by the appellant is reasonable and adequate. The appellant determines the price at which it sells to the customer companies and such price covers the cost of manufacture and leaves a reasonable profit which is apparent from the fact that the percentage of gross profit vis a vis capital employed by the appellant is 68% in 1971-72, 52% in 1970-71, 67% in 1969-70, 56% in 1968-69, 46% in 1967-68, 45% in 1966-67 and 38% in 1965-66. In all those years, the appellant company declared dividend which varied from 8% to 15% to its shareholders. From the very beginning, according to Mr. Roy Choudhury, assessment were made in excess of the jurisdiction conferred by S. 3 of the said Act. Mr. Roy Choudhury also challenges the correctness of the findings of the learned Judge that the appellant had already collected Excise duty paid it from its customers, or any order of refund, if made, would lead to unjust enrichment on the part of the appellant, and an anomalous position as the Excise duty collected in excess have already been distributed amongst various states of the Union of India in accordance with the recommendations of the different Finance Commissions. Mr. Roy Choudhury, in support of his submissions referred to various authorities to which we shall advert later in our judgment. ( 18 ) MR. Ajit Roy Mukherjee appearing on behalf of the respondents, submitted that the case related to thousands of assessments orders made between 1961 to 1972. The appellant wants to have all the said assessments set aside and tax collected in excess to be refunded. The Trial Judge, according to Mr. Mukherjee was right in refusing to set aside the said orders of assessments. The appellant admitted in the price lists submitted by the appellant of its customer companies along with prescribed documents and invited assessment of Excise duty on the basis of those prices. Thus the assessments were made on the basis of admission made by the appellant and the appellants must be estopped from challenging the said assessments. Mr. The appellant admitted in the price lists submitted by the appellant of its customer companies along with prescribed documents and invited assessment of Excise duty on the basis of those prices. Thus the assessments were made on the basis of admission made by the appellant and the appellants must be estopped from challenging the said assessments. Mr. Mukherjee next submitted that the transactions by the appellant with its customer companies were not normal trading transactions. The customer companies of the appellant are the subsidiaries of foreign companies which own the entire share capital of the appellant company and further some of the Directors of customer companies are also the Directors of the appellant company and thus it cannot be said that the customer companies were not favoured buyers or the transactions were at arms length. Further Mr. Mukherjee submitted that the appellant has been sleeping over his rights for such a long time that its alleged claim for refund is barred by latches. Mr. Mukherjee further submitted that in the petition field by the appellant the fact that the duties were paid in respect of previous assessments by mistake has not been established. Mr. Mukherjee has submitted that the writ court has no power to set aside the previous assessments. It is not sitting in appeal on the previous assessments. There was, according to Mr. Mukherjee, no jurisdictional error on the part of the respondents in the assessments made previously and the previous orders of assessments do not contain error of law on the face of them. The records do not show that the assessment authorities in making the assessments during the previous years took into account post manufacturing cost and post manufacturing expenses. Thus the mistake of law as urged by Mr. Roy Choudhury has not been proved. Mr. Mukherjee summarized his submissions as follows, to writ: (1)THE assessing authorities did not exceed jurisdiction in levying the duty on the goods as they have done. The said goods were subject to duty as were assessed. The assessments are not nullities. The said assessments in respect of the period 1961 to 1972 were not vitiated by any error of law apparent on the face of the record. (2)THERE is nothing on record to show that the assessments were made on post manufacturing profit. The said goods were subject to duty as were assessed. The assessments are not nullities. The said assessments in respect of the period 1961 to 1972 were not vitiated by any error of law apparent on the face of the record. (2)THERE is nothing on record to show that the assessments were made on post manufacturing profit. (3) The assessable value was given by the assessee itself and thus it could not discover a mistake of law. In any event, no such mistake has been proved. (4) The assessee's contentions that the assessments were vitiated by error of law on ground that the respondent proceeded on the basis that the assessee's transactions were not in course of normal trade, has not been alleged in the petition. (5) As submitted already the appellant admitted in the price lists submitted by them that the duty was assessable as shown in the said price lists and cannot now turn round and submit that no assessment can be made on the said price shown in the above-mentioned price lists. ( 19 ) MR. Mukherjee also in support of his contentions relied on various authorities to which we shall later in the judgment. ( 20 ) MR. Biswarup Gupta in reply pointed to page 353 of the paper book and the judgment of the learned Trial Judge and submitted that the learned Trial Judge has noted that the case of mistake has been urged by the appellant and it could not be said that the case of mistake was not alleged by the appellant either in the petition or at the hearing of such petition. In support of his above mentioned contention, Mr. Gupta also draw our attention to the judgment of the learned Trial Judge appearing at page 348 of the Paper Book. ( 21 ) IN the case of A. K. Roy and Anr. v. Voltas Limited, A. I. R. (1973) S. C. 225 S. 4 of the said Act recited in the early part of judgment, came to be considered by the Supreme Court. In considering the said section the Supreme Court observed to the following effect:"a wholesale market does not always mean that there should be an actual place where articles are sold and brought on a wholesale basis. These words can also mean the potentiality of the articles being sold on a wholesale basis. In considering the said section the Supreme Court observed to the following effect:"a wholesale market does not always mean that there should be an actual place where articles are sold and brought on a wholesale basis. These words can also mean the potentiality of the articles being sold on a wholesale basis. So, even if there is no market in the physical sense of the term at or near the place of manufacture where the articles of a like kind a quality are or could be sold, that would not in any way affect the existence of market in the proper sense of the term provided the articles themselves could be sold wholesale to traders, even though the articles are sold to them on the basis of agreements which confer certain commercial advantages upon them. If there is an actual price for the goods themselves at the time and place of sale and if that is a wholesale cash price, the clause is not in applicable for want of sale of other goods of a like kind and quality. If a manufacturer were to enter into agreements with dealers for wholesale of the articles manufactured on certain terms and conditions, it would not follow from that alone that the price for those sales would not be the 'wholesale cash price' for the purpose of S. 4 (a) of the Act if the agreements were made at arms length and in the usual course of business. If there is a special or favoured buyer to whom a specially low price is charged because of extra-commercial considerations, e. g. , because he is relative of the manufacturer, the price charged for those sales would not be the 'wholesale cash price'. Once wholesale dealings at arms length are established, the determination of the wholesale cash price for the purpose of S. 4 (a) of the Act may not depend upon the number of such wholesale dealings. Section 4 of the Act provides that the real value should be found after deducting the selling cost and selling profit and that the value can include only the manufacturing cost and the manufacturing profit. Section 4 of the Act provides that the real value should be found after deducting the selling cost and selling profit and that the value can include only the manufacturing cost and the manufacturing profit. The section postulates that the wholesale price should be taken on the basis of cash payment thus eliminating the interest involved in wholesale price which gives credit to the wholesale buyer for a period of time and that the price has to be flexed for delivery at the factory gate thereby eliminating freight, octroi and other charges involved in the transport of the articles. " ( 22 ) IN Attic Industries Ltd. , Appellant v. H. H. Dave, Assistant Collector of Central Excise and Ors, Respondents reported in AIR 1975 SC 960 S. 4 (a) of the said Act again came to be considered by the Supreme Court. The fact of the said case are stated hereunder: the Attic Industries Ltd. hereinafter referred to as the Attic carry on business of manufacturing dye-stuffs in a factory situate in a small township called Atul in Bulsar District in the State of Gujrat. The dye-stuffs manufactured by the Attic were, throughout the period relevant to the appeal, were sold by them in wholesale units to two wholesale buyers, namely ICI (India) Ltd. (hereinafter referred to as ICI) and Atul Products Ltd. (hereinafter referred to as Atul) under respective agreements entered into by them with ICI and Atul. Seventy per cent of dye-stuffs manufactured by the Attic were sold to ICI, whereas the balance 30% were sold to Atul. The price charged by the Attic to ICI and Atul was a uniform price described at "the basic selling price" less trade discount of 18%. ICI and Atul, in their turn, resold the dye-stuffs purchased by them from the Attic to two categories of buyers. One was the category of textile mills and large consumers, while the other was the category of distributors. The sales by ICI and Atul to the textile mills and other large consumers were at the basic selling price without any discount. But the sales to the distributors were at a higher price, though with trade discounts. ICI charged a higher price but allowed 10% trade discount, while Atul charged a slightly lower price and allowed 2 ? % trade discount. But the sales to the distributors were at a higher price, though with trade discounts. ICI charged a higher price but allowed 10% trade discount, while Atul charged a slightly lower price and allowed 2 ? % trade discount. The prices were, however, so adjusted that the net selling prices charged by ICI and Atul to the distributors were almost the same. The distributors, in their turn, resold the dye-stuffs purchased by them from ICI and Atul to the small consumers at a slightly higher price. No discount was given by the distributors to the small consumers. ( 23 ) THE position which, therefore, obtained during the relevant period was that the Attic sold the dye-stuffs manufactured by them in wholesale units, 70% to ICI and 30% to Atul, at the basics selling price, less trade discount of 8%; ICI and Atul in their turn resold a part of the dye-stuffs in retail units to the textiles mills and large consumers at the basics selling price and the balance in wholesale units to the distributors at higher selling price with 10% trade discount in case of ICI and 2 ?% trade discount in case of Atul, the net selling prices charged by both of them, however, being the same and the distributors, in their turn, resold the dye-stuffs to small consumers in retail units at the small consumers price. It may be pointed out that though Atul initially charged a lower selling price and gave a trade discount of 2 ?%, it fell in line with ICI and adopted the same selling price as ICI with trade discount of 10% from and after 1st May, 1963. ( 24 ) THERE was no Excise duty leviable on the dye-stuffs prior to 1st March, 1961 on which date Excise duty was imposed for the first time on dye-stuffs including goods manufactured by the Attic. It became necessary to determine the value of the dye-stuffs manufactured by the Attic for the purpose of assessing the Excise duty payable on the said dye-stuffs under S. 4 of the Act. It became necessary to determine the value of the dye-stuffs manufactured by the Attic for the purpose of assessing the Excise duty payable on the said dye-stuffs under S. 4 of the Act. ( 25 ) THE Attic contended before the Excise Authorities that for the purpose of assessing the excise duty, the value of the dye-stuffs manufactured by the Attic should be taken to be the price at which the appellants sold the same in wholesale units to ICI and Atul, less a uniform trade discount of 18% which the Attic at the relevant time gave to these two wholesale buyers. This contention was not accepted by the Superintendent of Central Excise who was the original assessing authority. He took the view that the value of the dye-stuffs for the purpose of assessments of excise duty should be taken to be the price at which ICI and Atul sold the dye-stuffs to the distributors and no deduction should be allowed in respect of the discount given by them to the distributors since it was not uniform being 10% in case of ICI and 2 ?% in case of Atul. The Attic appealed against the assessment to the Assistant Collector of Central Excise, but the appeal was unsuccessful and the assessment was confirmed. The Attic preferred an appeal to the Collector of Central Excise. The Collector of Central Excise, in determining the assessable value allowed trade discount of 2 ?% which was given by Atul to the distributors to be deducted from the prices charged by ICI to the distributors, but did not allow the trade discount of 10% given by ICI to its distributors. In the Revision Application filed by the Attic before the Central Government against the order of the Collector of Central Excise, the Central Government rejected the main contention of Attic that the value of the dye-stuffs should be arrived at the prices at which the same was sold by the applicant to ICI and Atul less 18% trade discount allowed to them. The Centrla Government, however, held that these dye-stuffs were available to any independent buyer in open market conditions at the sole distributor's price; that is at the price charged by ICI and Atul to the distributors and therefore these prices should form the basis of assessment of Excise duty after allowing discount of 10% on the price charged by ICI from the beginning and 2 ?% on the price charged by Atul upto 30th April, 1953 and 10% thereafter and on that basis directed refund of excess duty collected by the Excise Authorities. ( 26 ) IN the appeal by Attic to the Supreme Court, the Supreme Court considered the facts and the ratio decidendi in the case of A. K. Roy v. Voltas Limited (supra) and observed as follows:"in fact, the present case is much stronger than the Voltas case (supra ). In the Voltas' case (supra), 90 to 95 per cent of the production was sold by the manufacturer in retail and only a small percentage, namely 5 to 10 per cent was sold in wholesale and yet the price charged by the manufacturer to the wholesale dealers less trade discount of 22% was taken as 'the wholesale cash price' for assessment of value under S. 4 (a ). Here, on the contrary, no retail sales at all were effected by the appellants and the entire production was sold in wholesale to ICI and Atul under agreements entered into with them. Moreover, it was not in dispute between the parties that the agreements entered into by the appellants with ICI and Atul were made at arms length and in the usual course of business. It was not the case of the Excise Authorities at any time that specially low prices were charged by the appellants to ICI and Atul because of extra commercial considerations or that the agreements were anything but fair and reasonable or arrived at on purely commercial basis. It was not the case of the Excise Authorities at any time that specially low prices were charged by the appellants to ICI and Atul because of extra commercial considerations or that the agreements were anything but fair and reasonable or arrived at on purely commercial basis. The wholesale dealings between the appellants and ICI and Atul ere purely commercial dealings at arms length and the price charged by the appellants for sales in wholesale made to ICI and Atul less trade discount of 18% was, therefore, clearly 'wholesale cash price' within the meaning of S. 4 (a) and it did not make any difference that the wholesale dealings of the appellants were confined exclusively to ICI and Atul and apart from these two, no independent buyers could purchase the dye-stuffs in wholesale from the appellants. "the value of the goods for the purpose of excise must take into account only the manufacturing cost and the manufacturing profit and it must not be loaded with post-manufacturing cost or profit arising from post-manufacturing operation. The price charged by the manufacturer for sale of the goods in wholesale would, therefore, represent the real value of the goods for the purpose of assessment of excise duty. If the price charged by the wholesale dealer who purchase the goods from the manufacturer and sells them in wholesale to another dealer were taken as the value of the goods, it would include not only the manufacturing cost and the manufacturing profit of the manufacturer but also the wholesale dealer's selling cost and selling profit and that would be wholly incompatible with the nature of excise. " ( 27 ) THE Supreme Court was pleased to observe further:"where a manufacturer sells the goods manufactured by him in wholesale to a wholesale dealer at arms length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise. That would be wholesale cash price for which the goods are sold at the factory gate within the meaning of S. 4 (a ). That would be wholesale cash price for which the goods are sold at the factory gate within the meaning of S. 4 (a ). The price received by the wholesale dealer who purchases the goods from the manufacturer and in his turn sells the same in wholesale to other dealers would be irrelevant to the determination of the value and the goods would not be chargeable to excise on that basis. The conclusion is, therefore, inescapable that the assessable value of the dye-stuff manufactured by the appellants must be taken to be the price at which they were sold by the appellants to ICI and Atul less 18% trade discount and not the price charged by ICI and Atul to their dealer. " ( 28 ) IN paragraph 19 of the judgment in A. K. Roy v. Voltas Limited (supra), the Supreme Court determined the criterion of special or favoured buyer in the following terms: -"there can be no doubt that the "wholesale cash price" has to be ascertained only on the basis of transactions at arms length. If there is a special or favoured buyer to whom a specially low price is charged for because of extra-commercial consideration e. g. because he is relative of the manufacturer, the price charged for those sales would not be the "wholesale cash price" for levying excise under S. 4 (a) of the Act. A sole distributor might or might not be a favoured buyer according as terms of the agreement with him are fair and reasonable and were arrived at on purely commercial basis. Once wholesale dealings at arms length are established the determination of the "wholesale cash price" for the purpose of S. 4 (a) of the Act may not depend upon the number of such wholesale dealings. The facts that the appellant sold 90 to 95 per cent of the articles manufactured to consumers direct would not make the price of the wholesale sales of the rest of the articles any the less the "wholesale cash price" for the purpose of S. 4 (a), even if these sales were made pursuant to agreements stipulating for certain commercial advantages, provided the agreements were entered into at arms length and in the ordinary course of business. " ( 29 ) IN the case of M/s. Hindlamps Limited v. Union of India and Ors. " ( 29 ) IN the case of M/s. Hindlamps Limited v. Union of India and Ors. (1975) III CENCUS C 44 it was held by a Division Bench of the Allahabad High Court that in a case where a manufacturing company was selling to agents who purchased its entire production, that would not lead to the conclusion that the manufacturing company was indeed a dummy company or that the manufacturing company was not the manufacturer. ( 30 ) THE facts of the said case were similar to those of the instant one which has come up for consideration before us. M/s. Hindlamp Limited, the appellant in the said case was a public limited company incorporated in 1951 has also carried on and carries on business of manufacture and sale of electric bulbs, flouroscent bulbs, miniature bulbs and their components at its factory at Sikohabad. The entire shareholding of the said company was held by six limited companies. Of them four were foreign companies. Since the very inception the said company had long terms agreements with six other companies which were the subsidiary companies of the six companies which were the only shareholders of the said company. The bulbs and flouroscent tubes etc. manufactured by the said company were labeled as per directions of the customer companies with the marks like 'philips','osram', 'mazda', 'crompton', 'bajaj' and 'kleertone' under which names the customer companies sold the said goods. The Hind Lamps Ltd. sold the goods to the customer companies at its ex-factory price and paid sales tax on such prices. The price charged by the Hind Lamps Ltd. included manufacturing cost and manufacturing profits only and the Hind Lamps Ltd. had been regularly paying Income-tax on its profits from such sales. ( 31 ) NEGATIVING the contention of the Excise Authorities the said Division Bench of the Allahabad High Court held that customer companies did not become the manufacturer nor the price at which the customer companies sold the goods were relevant for the purpose of ascertaining the wholesale cash price of the goods under S. 4 (a) of the said Act. The relevant factor under S. 4 (a) was the price at which the manufacturing company sold the said goods to the customer companies. ( 32 ) IN the case of M/s. Hindlamp Limited, Sikohabad, District Moinpuro, Petitioner v. Union of India and Ors. The relevant factor under S. 4 (a) was the price at which the manufacturing company sold the said goods to the customer companies. ( 32 ) IN the case of M/s. Hindlamp Limited, Sikohabad, District Moinpuro, Petitioner v. Union of India and Ors. , Respondents (1977) V CENCUS 83d the facts again were similar as in the case before us. The petitioner company in the said case was a company registered in India under the Indian Companies Act, 1913. There were at the relevant time only 5 shareholders of the said M/s. Hindlamp Limited. The said shareholders were (1) Bajaj Electricals Limited, Bombay, (2) Crompton Parkinson Limited, London, (3) N. V. Philips, Enhoven (Holland), (4) General Electricals Company, London (5) Mazda Lamp Company Limited, England. The last 4 of the above-mentioned companies were and are foreign companies. Bajaj Electrical Limited, Bombay was at the relevant times owner of 50% of the Equity Shares in the petitioner company. The four foreign companies together held the remaining 50% of the Equity Shares. The petitioner company manufactured at all martial times electric lamps, fluroroscent lamps and miniature lamps. It sold its entire products exclusively to five customer companies, namely, (1) Bajaj Electrical Limited, (2) Philips (India) Limited (3) Crompton Greaves Limited (4) General Electric Company of India Limited (5) Mazda Lamp Company Limited. The products that the petitioner company sold to the said customer companies were branded with the trade marks of the said customer companies as per the direction of the said customer companies. The customer companies sold the said lamps under their names at much higher prices than the price charged by the petitioner company. On the said goods also the Central Excise Authorities purported to levy Excise duty on the products of the petitioner company on the basis of the price charged by the customer companies from their buyers. The said assessments made by the Central Excise Authorities were quashed by the Allahabad High Court in the Civil Misc. Writ No. 2189 of 1973. The Allahabad High Court held that the price at which the petitioner company sold its products to the customer companies should be valued for levying the excise duty and not the price at which the customer companies sold the said goods to wholesalers or other buyers. Writ No. 2189 of 1973. The Allahabad High Court held that the price at which the petitioner company sold its products to the customer companies should be valued for levying the excise duty and not the price at which the customer companies sold the said goods to wholesalers or other buyers. In the case under consideration before the Allahabad High Court, the Central Excise Authorities contended that the previous decision of the Allahabad High Court reported in (1975) CENCUS C44 on the basis of S. 4 of the said Act before the same was amended by the Central Excise and Salt (Amendment) Act, 1973 (hereinafter referred to as the Amendment Act) did not apply to levy of excise duty subsequent to the coming into force of the Amendment Act on 1st October, 1975. On the other hand, the contention of the petitioner company was that the said amendment had not altered the legal position so far as the petitioner company was concerned and the above-mentioned decision of the Court would still govern the determination of value of the products of the petitioner company for the purpose of Excise duty. It was held by the Allahabad High Court that the position had not altered, after considering the Act before it was amended and the Act after the same was amended. The amended S. 4 of the said Act is set out hereunder:"4 (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of the section to 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 ot a related person and the price is the sole consideration for the sale: provided that: - (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 buyer. (ii) Where such goods are sold by assessee in the course of wholesale trade for delivery at the time and place of removal at a price fixed under any law for the time being in force for a price, being the maximum, fixed under any such law notwithstanding anything contained in Clause (iii) of this proviso the price of the maximum price, as the case may be so fixed shall, in relation in the goods as sold, be deemed to be the normal price thereof; (iii) Where the assesssee so arranges, that the goods are generally not sold by him in the course of wholesale trade except to or through a related person the normal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the course of wholesale trade at the time of removal, to dealers (not being related persons) or where such goods are not sold to such dealers, to dealers being related persons) who sell such goods in retail; (b) Where the normal price of such goods is not ascertainable for the person that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. (2) Where, in relation to any excisable goods the price thereof for delivery at the place of removal is not known and the value thereof is determined with reference to the price for delivery at a placer other than the place of removal, the cost of transportation from the place of removal to the place of delivery shall be excluded from such price. (4) For the purposes of this section: - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . related person" means a person who is as associated with the assesee that they have interest directly or indirectly in the business of each other and includes a holding company, a subsidiary Company a relative and a distributor of the assessee and any sub-distributor of such distributor. Explanation - In this clause 'holding company', 'subsidiary company' and 'relative' have the same meanings as in the Companies Act, 1956. (d) "value", in relation to any excisable goods: (i ). . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) does not include the amount of the duty of excise, sales tax and other taxes, if any payable on such goods and, subject to such rules as may be made, the trade discount (such discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale: (e) "wholesale trade" means sales to dealers, industrial consumers, Government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail. " ( 33 ) THE interpretation of S. 4 made by the Supreme Court in the case of A. K. Roy v. Voltas Limited was recited and amplified in Attic Industries Limited v. H. H. Dave, Assistant Collector of Central Excise (supra ). It should be noted that S. 4 of the said Act was amended mainly to overcome the effect of the decision of the Supreme Court in A. K. Roy v. Voltas Limited (supra ). The concept of "related persons" was introduced by the Amendment Act as quoted earlier. It should be noted that S. 4 of the said Act was amended mainly to overcome the effect of the decision of the Supreme Court in A. K. Roy v. Voltas Limited (supra ). The concept of "related persons" was introduced by the Amendment Act as quoted earlier. Clause (iii) of the proviso to S. 4 (1) (a) of the amended section provides that where an assessee sells through the related persons the normal price of goods sold by the assessee to or through such"related persons" shall be deemed to be price at which the said goods are ordinarily sold by the "related persons" in the course of wholesale trade at the time of removal of such goods. The term "related persons" has been defined in Clause C of sub-s. (4) of amended S. 4 of the said of the said Act. The term "related person" means a person who is so associated with the assessee that it has interest directly or indirectly in the business of the other. It may include a holding company, or a subsidiary company, and the relationship between the holding company and the subsidiary company. It was held in the said case after considering the facts of the case that even though the four customer companies had interest in the business of the petitioner company, the petitioner company had no interest directly or indirectly in the business of the customer companies. It was emphasized that even though Bajaj Electrical Limited held 50% of the Equity Shares of the petitioner company it was not shown how the petitioner company had any interest directly or indirectly in the business of the Bajaj Electricals Limited. It was held in the said case that it was open to the Central Excise Authorities to examine whether or not the five customer companies are favoured customers and whether the price at which the petitioner company sold its products to them were the normal price at which such goods were originally old by a manufacturer in the course of wholesale trade for delivery at the time and place of removal. With such observation, the petition was allowed by the Allahabad High Court. With such observation, the petition was allowed by the Allahabad High Court. ( 34 ) SIMILARLY in the instant case it does not appear from the facts recorded in the pleadings of all the parties that the transactions between the appellant and the customer companies mentioned herinabove were not at arms length or that the customer companies were treated as favoured buyers and allowed any extra-commercial benefit out of the transactions between the appellant and the customer companies. Nor is the appellant interested in the business of the customer companies. ( 35 ) IN the case of Union of India and Ors. , Appellant v. Vazir Sultan Tobacco Company Limited, Hyderabad, Respondent similar question came up before a Division Bench of the Andhra Pradesh High Court and the said Division Bench followed Attic Industries v. Assistant Collector of Central (supra) and A. K. Roy v. Voltas Limited (supra) and held that the Excise duty which was a duty payable on manufacture or production of goods could only be levied on the aggregate of manufacturing costs and manufacturing profits. Even if the first sale to the first wholesale dealer there was an element other than that of manufacturing cost and manufacturing profit and so the price charged to the first wholesaler includes post manufacturing cost such post manufacturing cost must be deducted by the Excise Authorities in assessing the duty leviable on manufacturing cost and manufacturing profit. ( 36 ) IN our opinion, the description of the commodity in the declaration form or the other items in the declaration forms filled in by the manufacturer for the purpose of assessment of Excise Duty cannot be final and binding on manufacturer. It should be noted that there cannot be in the first instance an estoppel against statute and secondly, no tax can be collected except the under the express authority of law. Assessment, it should be remembered, in a quasi-judicial function and has to determined or quantified in accordance with express provision of law. Assessment made without application of mind thus would be bad and null and void. Reference in this connection may be made to the case of Assistant Collector of Central Excise v. National Tobacco Company of India Limited AIR 1972 SC 2563 . Assessment made without application of mind thus would be bad and null and void. Reference in this connection may be made to the case of Assistant Collector of Central Excise v. National Tobacco Company of India Limited AIR 1972 SC 2563 . Liability to assessment for duty would depend upon whether the appellant in fact manufactures, dutiable item and the duty is payable thereon under the express provision of law. See in this connection M/s. Om Engineering Company Private Limited, Gorakhpur, Applicant v. The Commissioner of Sales Tax, U. P. Lucknow, Opposite Party 1976 Taxation L. R. page 1430. ( 37 ) THE respondent's contention in the instant case is that the ex-factory wholesale cash price is not ascertainable on account of the secret internal arrangement or agreement between the appellant and its customer companies who are, according to the respondent, favoured customers and/or related person because of the relationship between the customer companies and the holding company of the Customer companies as well as that of the appellant as stated hereinbefore. But because of the aforesaid facts we are unable to hold that the customer companies are favoured customers or 'related person' especially in view of the decisions mentioned hereinabove in M/s. Hindlamp v. Union of India and Ors. (1977) (supra) V CENCUS 83d and Hindlamp Limited v. Union of India and Ors. (1975) III CENCUS (supra) C44. In our opinion it cannot be denied that the transaction between the appellant and its customer companies were transactions at arms length. The impugned assessments in the instant case appears to us to be vitiated by error or of law apparent on the records because ex-facie assessments were made on the basis of the price lists of the customer companies. The mistake came to be discovered as has been stated, on coming to know of the decision in the Volta's case, it has to be held that the principle of law laid down in the said case shall have to be treated to have always been implicit in S. 4 (a) of the said Act, that is to say the "wholesale cash price" must be construed as price that includes only manufacturing cost and manufacturing profit. If the said mistake was discovered in the beginning of 1973, we are unable to hold that the application of the appellant is barred by latches or is belated. If the said mistake was discovered in the beginning of 1973, we are unable to hold that the application of the appellant is barred by latches or is belated. ( 38 ) IT was held by the Privy Council in Bennet and White (Category) Limited And Municipal District of Sugar City 1951 App. Case 786 that when an assessment was for a lump sum and included sums not assessable, the entire assessment was bad in toto. ( 39 ) THE ratio in the said case came up for consideration in the case of Kurapati Venkatasaryanarayan and Brothers v. The State of Andhra Pradesh (1970) 25 Sales Tax Cases 202. But in the said case the Supreme Court was pleased to hold that even though there was a single order of assessment for the period from April 1, 1949 to March 31,1950 in the said case, the assessments could be split up and dissected and the items of sale separated and taxed for different period and it was open to the court to sever the illegal part of the assessment and give a declaration with regard to that part alone instead of declaring the entire assessment void. In the instant case, the assessment cannot be split up or dissected. ( 40 ) FROM what has been stated hereinabove, it appears to us that none of the points urged by Mr. Mukherjee can be sustained and although this court in exercising its discretionary powers in the writ constitutional jurisdiction does not sit in appeal over the impugned orders of assessments, this court can, in our opinion, quash the impugned assessments made in violation of law as laid down in the Voltas case and Attick's case. In our opinion, the impugned decisions or orders of assessments made between 1961 and the date of application were nullities and not real determination because in making the said impugned orders the respondents took into consideration the factors, that is to say, the sums in excess of manufacturing cost and manufacturing profit which the deciding officer had no jurisdiction to do. ( 41 ) IN view of the conclusion arrived at by us as stated hereinbefore, we do not think it necessary to deal with the authorities cited by Mr. Mukherjee, We however note the said authorities. They are: (1) Smt. Ujjain Bai, Petitioner v. State of Uttar Pradesh and Anr. ( 41 ) IN view of the conclusion arrived at by us as stated hereinbefore, we do not think it necessary to deal with the authorities cited by Mr. Mukherjee, We however note the said authorities. They are: (1) Smt. Ujjain Bai, Petitioner v. State of Uttar Pradesh and Anr. , Respondents, (1) Tata Engineering and Locomotive Co. Ltd. Bombay 2 and 3 states of Bihar and Mysore, intervenes with Civil Misc. Petn. No. 1359 of 1961 AIR 1962, (2) K. M. Shanmugam, Proprietor, K. M. S. Transport Tanjore, Madras State, Appellant v. The SRVS (P) Ltd. and Ors. Respondents AIR 1963 SC 1626 , (3) State of Madhyapradesh and Anr. Appellants v. Bhailal Bhai and Ors. Respondents AIR 1964 SC 1006 , (4) M/s. Mamala Mills Ltd. Appellant v. State of Bombay, Respondent AIR 1965 SC 1942 , (5) Union of India, Appellant v. Tarachand Gupta and Bros. Respondents AIR 1971 SC 1558 , (6) Shri M. L. Sethi, Appellant v. Shri R. P. Kapur, Respondent AIR 1972 SC 2379 . ( 42 ) FOR the reasons stated hereinabove, we allow the appeal and set aside the judgment of the Court of first instance in so far as it relates to the assessments already made and quash and set aside the assessments of Excise duty made by the Excise Authorities between 1961 and the date of the application on the products manufactured by the appellant. We direct respondents to assess the products manufactured by the appellant on the basis of manufacturing cost and manufacturing profit only for the years 1961 to the date of the application and direct the respondents to refund to the appellant the amount fund to have been levied and collected in excess of the correct duty of Excise leviable in accordance with the principles laid down in this judgment. In the facts and circumstances of the case, we direct that each party shall bear his or its cost of and incidental to this appeal. For the reasons stated hereinbefore in the judgment, we also dismiss the cross-objection filed by the respondents and direct that each party shall bear his or its cost of and incidental to the cross-objection. A. N. Sen, C. J. : i agree. Appeal allowed.