JUDGMENT 1. 1. Shree Pipes Limited, the petitioner, is a limited liability company incorporated under the Companies Act, 1956 and for the sake of brevity it shall, hereinafter, be called as the assessee. It is engaged in the business of manufacture and sale of A.C.Pressure Pipes and A.C. Couplings and it is duly licensed assessee under the Central Excise & Salt Act, 1944 (for short, the Act). Upto May 31, 1990, the assessee also used to file list of goods for approval of the Proper Officer under rule 173-B of the Central Excise Rules, 1944 (for short, the Rules) and was not making any deductions of the amount of collection charges and interest on the receivables from the assessable value for the purpose of excise duty, but according to the assessee it realised its mistake and thought that under law it was also entitled to deduce the value of expenses liable to be incurred subsequent to the date of removal and the collection charges and interest on receivables and therefore it filed various fresh revised price lists on and from June 1, 1990 with respect to the different supply contracts/supply orders and they were approved and the details are as under : (i) The first fresh list was filed on June 1, 1990 with respect to different supply contracts/supply orders and the Asstt. Collector, Central Excise under his order dated July 30, 1990 under rule 9-B of the Rules approved the price list provisionally in respect of 22 different supply contracts/supply orders. In the price list submitted by the the assessee deduction at the rate of 9% on account of interest on receivables and collection charges was also claimed under Section 4(1) of the Act for the purpose of payment of excise duty. The assessee was allowed clearance of excisable goods on the basis of the price list determined as aforesaid after providing for the deductions subject to their furnishing bond B-13 for the amount of duty involved and security for an amount equivalent to 25% of the Bend amount; (ii) Another price list effective from August 10, 1990 as for supply order dated August 1, 1990 of M/s. Shiva Enterprices Solan for the supply of pipes of various diameters, detailed in para 12 of the writ petition, was submitted and it was entered in the Divisional Office at No. 2262/90-91. (iii) Another price list effective form August 9, 1990 for supply of asbestos cement pressure pipes of different diameters and class to Himachal Pradesh Irrigation and Public Health Department as per supply order No. IPH-SP-AC Pipes 90/5697-5701 and 5702-06 dated July 18, 1990 was submitted to the Superintendent, Central Excise and Customs, Bhilwara. In both the Price lists No. (ii) and (iii) the assessee claimed deductions on account of interest on receivables and collection charges at the rate of 9. 5% and deduction in respect of average freight and excise duty. After submission of the aforesaid two price lists a show cause notice No. V (68) PL/131/86/Pt. 4980 dated September 28, 1990 was received from the Asstt. Collector Central Excise, Ajmer by the Assessee whereby the assessee was called upon to show cause as to why the aforesaid price lists No. 2261/90-91 and 2262/90/91 may not be approved. In the aforesaid show cause notice it was also stated that the deductions as claimed by the assessee on account of interest on receivables and collection charges are not permissible to them inasmuch as for the supply order dated August 2, 1990 of M/s. Shiv Enterprises Solan the assessee has received the prices of the total supply in advance and as per the terms and condition No.2 of the supply order of the Himachal Pradesh Irrigation and Public Health Department dated July 18, 1990, the assessee is to receive 90% payment against the despatched document and inspection note on arrival of the consignment at the destination with the transporter and balance 10% within 30 days from the date of receipt of the material. It was further mentioned that in both the cases the assesses would not have to bear the interest on receivables and collection charges. It was also stated that deduction on account of interest on receivables and collection charges is not permissible under Section 4 of the Central Excise and Salt Act, 1944. 2. The assessee in between the period June 26th, 1990 to November 15, 1990, in respect of different contracts entered into by it had submitted 10 different price list to the Central Excise Division, Ajmer wherein also the assessee had claimed deduction on account of interest on receivable and collection charges from the excisable value for the purpose of charging excise duty on the ground as aforesaid. According to the petitioner, the said price lists submitted on the same principle on which the price lists were submitted earlier to July 30, 1990 and provisional approval under rule 9-B was made on July 30, 1990. But the Asstt. Collector under his order dated November 27, 1990 without any show cause notice and without passing final order in respect of approval of the price list directed the petitioner to effect clearance in respect thereof only at the price contracted less excise duty, freight, insurance and cost of rubber ring and thus without deciding the issue finally disallowed deduction on account of the interest on receivables and collection charges and subsequent to the communication dated November 27, 1990, the assessee has been served with six different show cause notices dated November. 26,1990 covering various price lists effective from the dates given in para 19 of the writ petition. According to the assessee the price lists submitted by it for the aforesaid period did not fall within any of the categories referred to under rule 173(i) to (vi) and the assessee is entitled to make clearance without prior approval of the Proper Officer. 3. The case of the assessee is that the deduction even in respect of freight are calculated on the basis of previous average. Thus, the deduction in this respect is calculated on the basis of average charges incurred during the preceding year. The assessee has therefore challenged the aforesaid notice to show cause and the ground of challenge is that in view of the decision of the Apex Court in the case of Asstt. Collector of Central Excise and others v. Madras Rubber Factory Ltd. and others, 1987 (27) ELT 553 (SC) (for short, MRF case) and in view of Union of India and others v. Bombay Tyre International Ltd. etc., 1983 (14) ELT-1896 (SC) (for short, Bombay Tyre case) interest on receivables and collection charges, expenses incurred subsequent to sale, removal or delivery of goods are permissible deductions under Section 4 of the Act. The challenge to the show cause notice is also on the ground that the Central Board of Excise & Custom under Section 37-B of the Act has issued instructions that in view of the decision of the Supreme Court and the matter is still pending in the Supreme Court, the interest on receivables and collection charges should be deducted from the value of the goods and those instructions are statutory in nature and are binding on the assessing authority. 4. The petition is contested by the respondents on various grounds including the ground that the assessee has come out at the stage of show cause notice and at the stage of examination which examination is yet to take place and the writ petition should not be entertained. 5. The viva contention of the learned counsel for the parties have been considered and the relevant provisions of the Act and the Rules as well as decisions of the Apex Court in MRF and Bombay Tyre cases too have been considered. Duty of excise is chargeable on any excisable goods with reference to the value of the goods at the time of removal from the factory premises as provided in Section 4 of the Act, but it is subject to other previsions in the Act and Rules. In exercise of the powers conferred by Section 37 of the Act the Central Government has made the Central Excise (Valuation) Rules, 1975 (for short, the 1975 Rules) and under rule 2(a) of 1975 Rules, 'value' means the value under Section 4 of the Act. As provided under rule 3 of the 1975 Rules the value of any excisable goods shall, for the purpose of clause(b) of Sub-Section (1) of Section 4 of the Act, be determined by the Proper Officer in accordance with 1975 Rules. The Controversy which existed earlier as to whether the excise duty could be levied on that measure of value of goods which took into account post-manufacturing expenses and post-manufacturing profit as well, has been set at rest by the decision of the Apex Court delivered in Bombay Tyre case as well ads MRF case under a short order containing an operative part in 1983 (12) ELT-869. The Apex Court has pronounced its reasoned order in MRF case on October 7, 1983. The Apex Court has pronounced its reasoned order in MRF case on October 7, 1983. A conjoint reading of Section 4 of the Act as well as rule 173-B of the Rules including sub-rule (2A) of rule 173-B leaves no manner of doubt that all clearances of excisable goods can only be made from the factory gate after the approval of the price list by the Proper Officer after the same is filed before him by the assessee. One exception has been carved out but under that also if the Proper Officer is of the opinion that on account of any enquiry to be made in the matter or for any other reason to be recorded in writing there is likely to be delay in according the approval, he shall either on a written request made by the assessee or on his own accord, allow such assessee to avail himself of the procedure prescribed under rule 9-B for provisional assessment of the goods. Therefore, only if the Proper Officer is of the opinion that some enquiry is to be made or there is any other reason which has to be recorded by him, he before finally approving the price list filed before him under rule 173-B, can allow the assessee to remove the excisable goods after following the procedure prescribed under rule 9-B which is a procedure for dealing with provisional assessment of the goods manufactured by the assessee. Even if the assessee requests in writing to the Proper Officer that he should be allowed to avail the procedure prescribed under rule 9-B and the Proper Officer is of the opinion that enquiry is necessary or for any other reason which he has to record, he may be allowed the facility to clear the goods after provisional assessment of the same, there has to be ultimately a final approval of the price list under rule 173-B of the Rules. Sub-Rule 2-A was only inserted in rule 173-B of the Rules by notification No. 10/78-CE dated January 25, 1978 and prior to it there was no provision for provisional approval of the price list. Sub-Rule 2-A was only inserted in rule 173-B of the Rules by notification No. 10/78-CE dated January 25, 1978 and prior to it there was no provision for provisional approval of the price list. While inserting the aforesaid provision as aforesaid rule 9-B as it then existed was also substituted vide notification No. 10/78 CE dated January 25,1978 to bring in conformity with sub-rule (2-A) of rule 173-B. The above provision will leave no manner of doubt that a provisional assessment of duty is only till such time as the enquiry is to be concluded by the Proper Officer to finally approve the price list submitted before him by the assessee under rule 173-B of the Rules, and any provisional assessment has to be followed by the final approval of the price list under rule 173-B of the Rules. 6. Reverting to the two cases of the Apex Court namely Bombay Tyre case as well as MRF case, the Apex Court said that Section 4 of the Act contains clear provisions for deduction from the price of certain expenditure. The court further said that where the freight is averaged and the averaged freight is included in the whole sale cash price as that the whole sale cash price at any place or places outside the factory gate is the same as the wholesale cash price at the factory gate, the averaged freight included in such wholesale cash price has to be deducted in order to arrive at the real wholesale cash price at the factory gate and no excise duty can be charged on it. It further said that trade discount, by whatever name such discount is described, should be allowed to be deducted from the sale price having regard to the nature of the goods if established under agreements or under terms of sale or by established practice. In the MRF case in para 16 the court dealing with the head of deductions on interest on receivables (sundry debtors for sales) said- "MRF has represented that this cost is inbuilt in the price and is incurred on account of the time factor between the time the goods are delivered and the time the moneys are realised. The cost is incurred only where credit terms are given in case of up-country and other buyers where payment is made much after the sales are effected. The cost is incurred only where credit terms are given in case of up-country and other buyers where payment is made much after the sales are effected. They contend that it is nothing but an extension of the principle underlying rule 4 of the Central Excise (Valuation) Rules. They contend that this is an adjustment in value required to be made to make into account and provide for the difference in the time of delivery and the realisation of the sale value. As stated in our judgment in Union of India & Ors. v. Bombay Tyres International Ltd. (supra) it is only those expenses incurred on account of factors which have contributed to its value upto the date of sale or the date of delivery which are liable to be included in the assessable value. The interest cost and expenses on sundry debtors or interest on receivables is an expense subsequent to the date of sale and removal or delivery of goods and in our opinion MRF Ltd. would be eligible to claim deduction on this account." 7. It will be seen that the aforesaid decision of the Apex Court In the MRF case is under review. In the case of M/s. Snow Whit industrial Corporation Madras v. The Collector of Central Excise, Madras, AIR 1989 SC 1555 , while dealing with the argument of Mr. Rao advocate for the appellant that in view of the decision of the Apex Court in MRF case the appellants should not be denied the benefit of various deductions if they are otherwise entitled to it. The court in para 14 said - "Though strictly speaking that is beyond the scope of the appeal in view of the contentions raised in the appeal before the Tribunal and in view of the grounds of appeal taken by the appellants before us, but in the interest of justice, we permit the appellants to have these benefits as finally settled by this court in Madras Rubber Factory's case (supra). We are informed that the said decision of Madras Rubber Factory is under review in this Court. We are informed that the said decision of Madras Rubber Factory is under review in this Court. Therefore, we are of the opinion that subject to the order passed in that review matter, such deductions, as may ultimately be held to be deductible be permitted to the appellants upon proof." As a result of the aforesaid discussion, this court is of the opinion that as per the observations of the Apex Court quoted above, unless the review petition pending before the Apex court is decided the assessee is entitled for the deduction under the head of collection charges and interest on receivables, if any, incurred by it. At the cost of reobetition it may be said that the said decision was delivered by the Apex Court in the MRF case on the submissions made to it that the cost is incurred where the credit terms are given in case of up-country and other buyers where payment is made much after the sales are effected. Therefore, depending on the terms and conditions of the contract where there was no credit terms and where there was no time-lag in between the delivery and realisation of price, the above observations of the Apex Court may not be attracted. Even if one may be entitled to deduction from the aforesaid heads of price of excisable goods for the purpose of Section 4 of the Act, in my opinion, the assessee will only be entitled to the actual loss of interest, if any on receivables and collection charges incurred by it. The analogy that the freight is to be averaged and allowed to be deducted from the price list may not be applicable so far as this head of deductions is concerned. But these are the matters to be considered by the Proper Officer while finalising the approval of the price list under rule 173-B of the Rules. Even if an assessee requests to avail the procedure prescribed under rule 9-B for provisional assessment of the goods and the price list is provisionally approved, the proper Officer, has to make final order approving the price list and can always give notice to the assessee for finalisation of the price list. Even if an assessee requests to avail the procedure prescribed under rule 9-B for provisional assessment of the goods and the price list is provisionally approved, the proper Officer, has to make final order approving the price list and can always give notice to the assessee for finalisation of the price list. The approval of the list under rule 9-B is to be provisional till such time the enquiry is made by the Proper Officer for finalisation of the price list and while finally approving any price list, the assessee will only be entitled to deduction of actual collection charges and loss of interest on receivables, even if, the review petition which is pending before the Apex Court so far as the decision delivered in MRF case is concerned, is ultimately not allowed and the ratio of MRF case continues to hold the field. It was submitted by the learned counsel for the assessee that so far as the deductions claimed on the ground of collection charges and interest on receivables is concerned, the exercise is not to be done by the assessee contract by contract and each and every contract is not to be looked into individually. It was further contended that on the analogy that freight is averaged and is included in the whole-sale cash price, the collection charges and interest on receivables have also to be averaged and included in the whole-sale cash price and therefore the assessee was entitled to the deduction of interest at the rate of 9% from the wholesale cash price of each and individual contract. In support of his contention learned counsel for the petitioner referred to the Bombay Tyre case (supra), more so its para 50 where in the Apex Court said:- "where freight is averaged and the averaged freight is included in the wholesale cash price so that the wholesale cash price at any place or places outside the factory gate is the same as the wholesale cash price at the factory gate, the averaged freight included in such wholesale cash price has to be deducted in order to arrive at the real wholesale cash price at the factory gate and no excise duty can be charged on it." In my opinion, the aforesaid observations of the Apex Court can hardly be applicable to a case of deduction, if any, in respect of collection charges and interest on receivables. It will be seen from the decision of the Apex Court in the MRF case in para 16 which has been extracted in the earlier part of this order that it was submitted on behalf of MRF that the interest on receivables represents the cost incurred on account of the time factor between the time the goods are delivered and the time the money are realised. It was further contended that the cost is incurred only where credit terms are given in case of up-country and other buyers where payment is made much after the sales are effected. Under these circumstance, so far as under the head 'collection charges and interest on receivables (sundry debtors for sales)' is concerned the deduction can only be allowed from wholesale cash price for the purpose of determination of excise duty on the excisable goods under sub-section (1) of Section 4, if under the terms and conditions of that contract credit facilities are given and payment is made much after the sales are effected. Therefore, the exercise has to be contract by contract and while filing the price list under rule 173-B in my opinion for independent contract, as in the present case, the deductions could hardly be claimed on the basis of average of the last year. But this is a question to be ultimately decided by the Proper Officer and if he approves the price list provisionally under rule 173-B read with rule 9-B the rules, he had the jurisdiction to issue show cause notice/notices to the assessee and even if the decision in the MRF case contained in Para 16 extracted above ultimately holds the field though it still holds the field, the deduction only to the extent of actual collection charges and interest on receivables will be permissible from the wholesale price. It is not disputed that all the contracts price lists were filed by the assessee for approval under rule 173-B including the two contracts in respect of which price list were provisionally approved have since been executed and therefore the Proper Officer even otherwise had the jurisdiction to finally approve the price list as anything done provisionally is as a stop-gap arrangement and not final and finality can only be attached to it after the enquiry as envisaged in the Rules the price list is approved. In my opinion the Proper Officer has jurisdiction to examine as aforesaid as to whether any amount at all was incurred and if so what is that amount towards the collection charges and interest on receivables in respect of each and every contract and then to approve the price list finally under rule 173-B of the Rules. It can therefore not be said that the notices given are without jurisdiction. No doubt in view of the ratio of MRF case which as said earlier is under review by the Apex Court, the assessee will be entitled to deduction of the amount, if any, actually incurred towards the collection charges and interest on receivables atleast till such time the review petition is decided by the Apex Court. The effect of final approval of the price list which is yet to be done will be that from the whole sale price in the price list to be approved finally deductions will have to be allowed in so far as the expenses actually incurred on the collection charges and interest on receivables and to that extent the Proper Officer will have to specifically say so in his order. The deductions as aforesaid from the whole sale price shall be subject to the decision of the Apex Court in the review petition which is pending in the MRF case. I am, therefore of the opinion that it is not correct for the assessee to say that the Proper Officer had no jurisdiction to issue the show cause notice for final approval of the price list under rule 173-B of the Rules. 8. It will be seen from the show cause notice Annr. 6 that it is in respect of price lists in part II effective from August 10, 1990 for the supply of pipes of different diameters to M/s. Shiv Enterprises Solan as well as price life effective from August 9, 1990 for supply of asbestos cement pressure pipes of different diameters and classes to Himachal Pradesh Irrigation and Public Health Department. These two Price lists had not even been provisionally approved under rule 9-B of the Rules, though provisional approval was sought by the assessee. These two Price lists had not even been provisionally approved under rule 9-B of the Rules, though provisional approval was sought by the assessee. It will further be seen from the aforesaid show cause notice that the reason as to why the show cause notice was given is that as per the terms and conditions of the supply orders the assessee was to receive 90% payment against the despatch documents and inspection note on arrival of the consignment at the destination with the transporter and balance 10% within 30 days from the date of receipt of material in respect of one supply order and in respect of other the assessee had received the total price and as such the assessee was not entitled to any deduction on account of collection charges and receivables. The assessee was called upon to show. cause as to why the two price lists bearing No. 2261/90-91 and 2262/90-91 may not be approved including the amount of interest on receivables and collection charges at the rate of 9.5% as deduction claimed by them on that account is not permissible to them. It can therefore not be said that the show cause notice is against the decision of the Apex Court delivered in MRF case (supra). Be that as it may, it is for the Proper Officer to finally approve the price lists which have not been approved even provisionally. Assuming for the sake of arguments, on the ground that a review petition in the MRF case is pending before the Apex Court and the matter whether collection charges and/or interest on receivables can be allowed to be deducted from the wholesale price, the Proper Officer could provisionally approve the price list, so far as present case is concerned, all the contracts having been executed, there has to be final approval of the price list and the assessee could only be entitled to deduction towards collection charges and interest on receivables and it could not be averaged to 95% because it will depend on the terms and conditions of each contract, as said earlier, whether the payment was delayed and if so to what extent and interest will depend on the delay in the payments of the amount of various bills from the date of delivery. 9. 9. It was contended by the learned counsel for the petitioner that under Section 37-B of the Act the Central Board of Excise and Customs (CBEC) has issued instructions and they are of binding nature and therefore, the Proper Officer was bound to comply with those instructions. A bare reading of Section 37-B of the Act will show that the instructions if any issued by the CBEC are only binding on the administrative orders of the Central Excise department and not on assessing authorities in the discharge of their judicial or quasi judicial functions. A reading of the proviso will leave no manner of doubt that the instructions if any issued under Section 37-B of the Act by the CBEC do not bind the assessing authorities and the discretion of the assessing authorities cannot be interfered with by any instructions issued as aforesaid. In the case of Cenest Engineers Pvt. Ltd. v. Union of India, 1989 (43) ELT-24 (Guj), the Gujarat High Court has rightly said that it is clear from Section 37-B that the Administrative orders, instructions and directions have to be observed by the excise authorities who are bound by such orders, but the section has taken particular care to see that the authorities who will be acting as quasi judicial authorities are protected from such type of directions or instructions. The assessee has referred to the order dated June 29, 1989 of the Government of India Ministry of Finance Department of Revenue, which was issued by the collector, Central Excise and the same is extracted in para 24 of the writ petition which reads as under:- "Assessment which are being made on provisional basis in respect of the issue similar to those involved in the MRF case after filing the Review Petition by the Department, may continue on provisional basis till the Supreme Court renders final decision on the issue contested by the Department in the MRF case." The above instructions are administrative in nature and are not binding on the Excise and Custom authorities acting on judicial/quasi judicial side and it is for them to approve the list provisionally or finally but in doing so they are bound to keep the law laid down by the Apex Court in mind the review petition in MRF case is allowed and different view is taken. 10. 10. Consequently, while I find no merit in the writ petition, it is hereby dismissed, but the Asstt. Collector, Central Excise and Customs Department, Ajmer is directed that while making final approval of various price lists and making assessment of the excise duty, to quantify the amount if any qua each supply order towards the collection charges and loss of interest on receivables, but will allow the deduction in view of MRF case of that amount from the wholesale price while approving the price list subject to the order which may ultimately be passed in review petition in MRF case which is pending in the Apex Court. Only such deductions which may ultimately be held permissible will be allowed to the assessee. Costs made easy.Writ Petition Dismissed with directions. *******