B. N. Kirpal ( 1 ) THE only challenge which subsists in the present writ petition is to the price list which has been approved by the Assistant Collector, Customs and Central Excise Division, Saharanpur, vide his order dated 30. 5. 1988. ( 2 ) THE petitioner is, inter alia, carrying on the business of manufacturing and sale of different types of paper. It is admitted case of the parties that the central excise is leviable on the manufacture for sale of papers. In order to determine the duty payable the price list indicating the wholesale price has to be approved by the Excise Authorities. The petitioner had filed the present writ petition in which the challenge was to the validity of Section 4 of the Central Excise Act Direction was also sought from this court for the approval of the price list which had been furnished by the petitioner. ( 3 ) DURING the pendency of this writ petition similar matters came up for bearing before ihe Supreme Court. In the case reported as ]9s3 (14) E. L. T. 1896 (S. C.) Union of India and others etc. V s. Bombay Tyre International Limited and others etc. while upholding the vires of Section 5, it was held that in finalising the price list the amount of expenditure attributable to the post manufacturing expanses was to be excluded from the wholesale price, which was being charged by the manufacturers. ( 4 ) THE Supreme Court in another case, namely, Good Year India Ltd. Vs. Union of India and others decided on 13. 9. 1985 evolved a format on the basis of which claim of deductions/amendments in respect of the price list was directed to be filed. Pursuant to the said decision, in this case, on 23. 11. 1987 order was passed directing the parties to abide by the directions issued by the Supreme Court in Good Year India s case and particulars were to be furnished by the petitioner in a similar format. The aforesaid format, inter alia, required the filing of the claim for deduction with the Excise Authorities along with the documents on which reliance was sought to be placed. The Assessing Authorities were required to finalise the price list within a time frame and after giving the assessee an opportunity of being heard. The aforesaid format, inter alia, required the filing of the claim for deduction with the Excise Authorities along with the documents on which reliance was sought to be placed. The Assessing Authorities were required to finalise the price list within a time frame and after giving the assessee an opportunity of being heard. The order finalising the price list was required to be filed in the Court alongwith the claims of deductions/amendments as well as documentary evidence which had been filed by the assessee before the Excise Authorities. It was, however, stipulated in the said format that all final orders including the orders of payments of demand and the time within which the amounts are to be paid and all incidental, consequential and supplementary matters (including payment of interest) was to be decided by the High Court in each case. ( 5 ) IT appears that a fresh pride list was submitted for approval by the assessee. The Assistant Collector of Central Excise, Saharanpur passed an order dated 30. 5. 1988 approving the prices for the purpose of assessment of duty. In coming to this conclusion, the Assistant Collector dealt with various contentions which had been raised by the petitioner and a speaking order giving reasons for his conclusion was passed. ( 6 ) THE said order dated 30. 5. 1988 was filed in this court by the petitioner in CMP No. 1788/1988. The main grievance of the petitioner to the said order was that the Assistant Collector had erred in disallowing the deduction to the petitioner on account of additional discount given by the petitioner to its wholesale buyers at the rate of Rs. 300. 00 per metric tonne. Another grievance of the petitioner was that the Assistant Collector had disallowed the deduction claimed on account of freight subsidy offered by the petitioner to its various wholesale buyers. The petitioner also contended that the Assistant Collector had erred in disallowing deduction under the head handling charges and on account of special packing. ( 7 ) AT the time of arguments, the learned counsel for the petitioner contended that the additional trade discount was being allowed to the wholesellers at the rate of Rs. 300. 00 per matric tonne and this should have been allowed as deduction. It was submitted that credit notes were being issued to the customers and this additional trade discount was being allowed. 300. 00 per matric tonne and this should have been allowed as deduction. It was submitted that credit notes were being issued to the customers and this additional trade discount was being allowed. The Assistant Collector while holding that trade discount, which is established under agreement or terms of sale, is to be excluded from the value whether to be payable or not at the time of issue of each invoice, provided it is known at or prior to the removal of the goods that such trade discount would be available. He, however, found that in the present case, the additional discount claimed by the party was never deducted from their invoice value and these deductions were not known at or prior to the removal of the goods. The additional discount as claimed by the party was held as not admissible to them. ( 8 ) IT is a finding of fact whether the additional discount at the rate of Rs. 300. 00 per metric tonne was made known to the purchasers or not prior to the making of the sale by the petitioner. The Assistant Collector has come to the conclusion that such discount was never made known at or prior to the removal of the goods. This is a finding of fact and there is nothing on the record to show that any document had been filed by the petitioner before the Assistant Collector, which could possibly had led, the Assistant Collector, to come to a contrary conclusion. The learned counsel, however, sought to draw our attention to a circular letter stated to have been written on 18. 5. 1991. This letter has been placed on the record alongwith the affidavit on behalf of the petitioner but, there is nothing to indicate that this letter was ever placed on record before the Assistant Collector. The Assistant Collector, in his order, has not deal with letter dated 18. 5. 1991 and nor is there any material on our record to show that the petitioner had relied upon the said circular before the said authority. In any case, the question whether the additional trade discount would be allowed was made known to its customers is a question of fact and we are bound by the findings, in this behalf, arrived at by the Assistant Collector. The decision of the Assistant Collector, in this behalf, calls for no interference. In any case, the question whether the additional trade discount would be allowed was made known to its customers is a question of fact and we are bound by the findings, in this behalf, arrived at by the Assistant Collector. The decision of the Assistant Collector, in this behalf, calls for no interference. ( 9 ) WITH regard to claim of the freight subsidy, the Assistant collector has dealt with the same in the following words:- Freight subsidy: Regarding deduction on account of freight subsidy, the party quoted the decision on Bombay Tyre international. According to the decision of hon ble Supreme Court in the case of Bombay Tyre International it was held that an assessee would be entitled to a deduction on account of transportation of the excisable articles from the factory gate tothe place or places where it is sold. In the instant case the prices claimed in Col. 3 of the said price lists are the prices at the factory gate as the said price lists have bee submitted by the party in part 1. . Thus the claim of the party to avail the deduction on account of freight subsidy is not admissible as the prices shown in Col. 3 of the said price lists are not inclusive of cost of transportation from the factory gate to the place of delivery. ( 10 ) IT was contended by learned counsel for the petitioner that credit notes were issued with regard to freight and which shows that the freight was a part of the price which had been charged. In an effort to prove this, the petitioner has placed on record a few credit notes. In our opinion, it is not open to the petitioner to raise this contention before this court because it was for the petitioner to satisfy the Assistant Collector, Central Excise, that the price which was being charged was inclusive of cost of transportation from the factory gate to the place or places of delivery. We are not satisfied that the credit notes now filed in this court were ever produced before the Assistant Collector. The Assistant Collector has given his reason for coming to the conclusion that the price which was being charged did not include the cost of transportation and the reason is that the price shown in col. We are not satisfied that the credit notes now filed in this court were ever produced before the Assistant Collector. The Assistant Collector has given his reason for coming to the conclusion that the price which was being charged did not include the cost of transportation and the reason is that the price shown in col. 3 of the price list was not shown to be inclusive of cost of transportation. Under Article 226 of the Constitution ofIndia, it will not be appropriate for this court to interfere with this finding of fact and the sad decision, therefore, calls for no interference. ( 11 ) LASTLY, the learned counsel for the petitioner contends that the conclusion of the Assistant Collector with regard to the special packing is incorrect. The decision of the Assistant Collector as per the impugned order is as follows :- Special packing : The party has submitted that different variety of paper cleared by them from their factory are first packed in wrapping paper and in order to protect the same from the damages caused during the transit they used to pack the same with hessian cloth and the cost of such hessian cloth is included in the price shown in col. 3 of the said price lists. As judgment of Hon ble Supreme Court of India in the case of Bombay Tyres International Ltd. , it was held by the Hon ble Supreme Court that the cost of secondary packing cannot be deducted from the wholesale cash price of the excisable article at the factory gate as the secondary packing which is necessary for putting the excisable article in condition in which it is generally sold in the wholesale market at the factory gate. Here M/s. Star Paper Mills Ltd. , Saharanpur first wraps the paper by wrapping paper and then wraps it with Hessian cloth in order to facilitate the transport of the said product. Thus Hessian cloth is a secondary packing and it is not the special secondary packing provided by the assessee at the instance of a wholesale buyer and it is generally provided as a normal feature of the wholesale trade. Thus the deduction on account of secondary packing is therefore, not admissible to the party. The party has quoted the decision of supreme court in the case of Union of India Vs. Thus the deduction on account of secondary packing is therefore, not admissible to the party. The party has quoted the decision of supreme court in the case of Union of India Vs. Godfrey Phillips where in the Hon ble court has held that the cost of corrugated fibre board containers does not form part of the falue of value of cigarettes. In the case of cigarettes, it is first packed in unit container (packets) of 10 or 20 cigarettes and again these packets in the number of 10 or 20 are further packed/wrapped in another container (inner) and these inners are then put in corrugated fibre board containers. In the instant case packet is primary packing, inner is secondary packing and corrugated fibre board container is special secondary packing. In the case of me party paper wrapping is the primary packing and then wrapping by hessian cloth is secondary packing and hence this case is different from the case of M/s. Godfrey Phillips India Ltd. ( 12 ) WE are in the agreement of the aforesaid conclusion of the Assistant Collector. It is evident that paper could not have been marketed without its being packed in the hessian cloth and the same was secondary packing and its price was to be included in the wholesale price which was being determined by the impugned order. ( 13 ) NO other contention has been raised before us and in our opinion, no relief can be granted to the petitioner. After the writ petition was filed on 22. 5. 1981 interim orders were passed allowing the petitioner to clear the goods on payment of 50% of the duty demand in cash and for the remaining 50% the petitioner was required to execute bond and give a bank guarantee in the format which is approved by the Supreme Court in Good Year India s case. It was clearly stated that the order passed by the Assistant Collector would be subject to the final order passed by the court including the orders regarding incidental matters such as payment of interest. In the instant case, the petitioner has availed of the benefit of the said order of this court with regard to stay of 50% of the excise duly which was payable. In view of the fact this benefit has been availed since 22,5,1981 and more than 12 years have clapsed. In the instant case, the petitioner has availed of the benefit of the said order of this court with regard to stay of 50% of the excise duly which was payable. In view of the fact this benefit has been availed since 22,5,1981 and more than 12 years have clapsed. we see no reason as to why the respondents should not be adequately compensated lor the loss caused to it because of the delay in realisation of the revenue which was due to it. We therefore, while dismissing this Writ Petition direct the petitioner to pay to the respondents the balance amount of excise duty as payable in accordance with the approved price lists. alongwith interest at the rate of 17. 5 per cent with yearly rest. ( 14 ) THE petitioner has furnished to the respondent bank guarantee. The respondents will be at liberty to encash the bank guarantee immediately and the shortfall will be payable by the petitioner within four weeks from today. The respondents will also be entitled to cost