JUDGMENT By CourtHeard learned counsel for the parties. 2. The petitioner has challenged the Trade Notice no.19/96 dated 24th July, 1996 issued by Commissioner of Central Excise & Customs, Jamshedpur, by which it has been declared that duty is required to be paid by the assessee at the time of clearance of goods from factory gate even for those goods which are sold through depot and the duty shall be levied at the price declared at depot. The petitioner has also challenged the vires of Section 4(4)(b)(iii) inserted by Section 74 of the Finance Act, 1996 as illegal and ultra vires of Entry 84 of List I of Seventh Schedule of Constitution as, according to the petitioner, the said Entry No.84 authorizes and gives power for levy of imposition of duty on goods manufactured or produced in India and on the basis of said Entry. It has been contended that said provision is ultra vires of the charging Section i.e., Section3 of the Act. 3. The brief facts of the case are that, the petitioner is having it's factory at Chandil and is manufacturing sponge iron, which is excisable commodity under Central Excise Act, 1944. Section 3 of the Act of 1944 is charging Section and Section 4 provides for quantification and declares the liability for payment of the excise duty and mode of calculating the excise duty. According to the learned counsel for the petitioner, as per subsection(2) of Section 4, the excise duty cannot be levied on the goods on transportation from the place of removal to the place of delivery, which has been made explicitly clear by the Hon'ble Supreme Court in the detailed judgment delivered in the case of Union of India & Ors. Vrs. Bombay Tyre International Ltd. & Ors. reported in (1984) 1 S.C.C. 467 . Vrs. Bombay Tyre International Ltd. & Ors. reported in (1984) 1 S.C.C. 467 . The Central Excise Act was amended by the Finance Act, 1996, whereby no amendment was made in Section 4(2) of the Act of 1944 but Clause (ia)was inserted after clause (i) under sub clause(a) of subsection(1)of Section 4, whereby, by deeming clause, it has been provided that where the price at which such goods are ordinarily sold by the assessee is different for different places of removal, each other price shall subject to the existence of other circumstances specified in clause(a), be deemed to be the normal price of such goods in relation to each such place of removal. According to the learned counsel for the petitioner, it appears that by misinterpreting this clause and assuming it to be extension of the definition of place where the excise duty can be levied in addition to the gate of the factory premises, impugned notification dated 24th July, 1996 may have been issued, declaring that by virtue of this amendment the assessee shall be required to pay the excise duty of freight charges, as now the factory gate is not the actual place of removal and since the definition of the place of charging has been extended to the depot also , therefore, excise duty will be price of the goods at depot. 4. The learned counsel for the petitioner submitted that the Hon'ble Supreme Court in the case of Union of India Vrs. Bombay Tyres International Ltd.(supra) considered various aspects of the matter, including the scope and definition of the transportation charges to the depot and thereafter held that assessee is entitled to a deduction on account of the cost of transportation of the excisable article from the factory gate to the place or places where it is sold and further held that 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. However, after the amendment referred above, the matter came up before the Hon'ble Supreme Court in the case of VIP Industries Ltd. Vrs. Commissioner of Customs & Central Excise, Aurangabad reported in (2003)5 S.C.C. 507 , wherein specific issue of effect of amendment and enlargement of the definition of the place for charging excise duty itself was under consideration and Hon'ble Supreme Court held that inspite of newly added proviso (ia) to Section 4(1)(a), the position remains as it is as it was prevailing prior to the amendment and rejected the Revenue's contention of inclusion of the freight charges, charged upto the depot. Therefore, according to the learned counsel for the petitioner, though the petitioner challenged the vires of the amendment itself but in view of the judgment of the Hon'ble Supreme Court which was subsequently delivered, subsequent to the filing of the writ application, the writ petition is liable to be allowed as issue is no more res integra, in view of the Hon'ble Supreme Court judgment. 5. Learned counsel for the Revenue submitted that in view of the amendment made in Section 4 (1)(a) by insertion of clause(ia), it is clear that excise duty which was chargeable at factory gate stands amended by statutory provision making it clear that the place of delivery will be not treated as only factory gate but shall be by deeming clause be the depot. Therefore, the nature of the cost incurred upto the place of delivery which is the place of removal is the production of the cost for the purpose of sale and consequently liable for excise duty. 6. We have considered the submissions of the learned counsel for the parties and perused the facts and circumstances as well as the judgments relied upon by the learned counsel for the petitioner. It is clear from the judgment of the Hon'ble Supreme Court delivered in the case of Union of India & ors. Vrs.Bombay Tyre International Ltd. & ors.(supra) that value of excisable article is required to be determined in terms of the price charged by the assessee in respect of the article manufactured by him and not merely in terms of manufacturing cost plus manufacturing profit and Hon'ble Supreme Court held that expressed “ normal price” and “related person” as defined in Section 4(4)(c)is not unconstitutional . However, that is not the issue before us, nor the issue with respect to the interpretation of the word 'manufacture' is before us, which have been interpreted by the Hon'ble Supreme Court in detail, but the issue which was relevant for our purpose was with respect to the same subject matter, which is provided in Entry 84 of List I of Schedule VII of the Constitution and particularly the subject of the levy of excise duty and manufacture or production visavis point of collection under Section 4 of the Central Excise and Salt Act, 1944. The specific question before the Hon'ble Supreme Court was with respect to whether the value of an article for the purposes of the excise levy must be determined by reference exclusively to the manufacturing cost and the manufacturing profit of the manufacturer or should be represented by entire wholesale price charged by the manufacturer. The Hon'ble Supreme Court observed that wholesale price actually charged by the manufacturer consists of not merely his manufacturing cost and his manufacturing profit but includes, in addition, a whole range of expenses and an element of profit, which is known as “post-manufacturing expenses” and “post manufacturing profit” which arises between the completion of manufacturing process at the point of sale by the manufacturer. The Hon'ble Supreme Court at para13 of the abovementioned judgment held that while the levy is on the manufacture or production of goods, the stage of collection need not in point of time synchronize with the completion of the manufacturing process. While the levy in our country has the status of a constitutional concept, the point of collection is located where the statute declares it will be. Therefore, before the Hon'ble Supreme Court, it was a specific point for determination to find out the point of collection of the excise duty and Hon'ble Supreme Court held that point of collection of excise duty can be only as declared by the Statute. Therefore, before the Hon'ble Supreme Court, it was a specific point for determination to find out the point of collection of the excise duty and Hon'ble Supreme Court held that point of collection of excise duty can be only as declared by the Statute. Section 4(2) of the Act of 1944 was considered in para48 of the aforesaid judgment, wherein the Hon'ble Supreme Court held that new Section 4 provides by subsection (2) that where the price of excisable goods for delivery at the place of removal is not known and the value is determined with reference to the price for delivery at a place other than the place of removal, the cost of transportation from the place of removal to the place of delivery has to be excluded from such price. The Hon'ble Supreme Court further in para50 of the said judgment, after considering the various aspects of the matter, held as follows: “But the assessee will be entitled to a deduction on account of the cost of transportation of the excisable article from the factory gate to the place or places where it is sold. The cost of transportation will include the cost of insurance on the freight for transportation of the goods from the factory gate to the place or places of delivery”. Then in para51, it has been held that 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. 7. Since the Revenue is claiming that the insertion of Clause (i-a) after Clause(a) of subsection(1) of Section 4 whereby, by deeming clause the place of removal has been changed, therefore, according to the Revenue, the notification impugned is in consonance with the amendment and is making only the legal position clear and , therefore, rightly held that after the amendment transportation charges are also required to be added in the value of the goods for the purpose of levy of excise duty. 8. 8. The argument of the learned counsel for the Revenue is a view just contrary to the law laid down by the Hon'ble Supreme Court in the case of VIP Industries Ltd. (supra). In VIP Industries Ltd. In above case, Tribunal upheld the view of the Department on the reasoning that amendment and inclusion of newly added proviso (ia) to Section 4(1)(a) changed the definition of “place of removal” and the depot is covered under the extended definition by statutory provision and, therefore, excise duty which is chargeable and leviable at the place of removal. Hence any charge incurred by the manufacturer in bringing it's goods to that place of removal is required to be included in the cost of bringing of the goods to that place of removal. That view was considered by the Hon'ble Supreme Court and thereafter, it has been clearly held that the amendment was not negativing the judgment of the Supreme Court, obviously the judgment delivered in the case of Bombay Tyre International Limited(supra). The Hon'ble Supreme Court held that merely because definition of “place of removal” is extended, even then in case of equalized freight it remains the same as per the judgments of the Supreme Court and held that even after insertion of clause (ia) in Section 4(1)(a) by the Act of 1996 , the cost of transportation from factory to depot cannot be included in the value of the goods. 9. In view of the above reason, when there is statutory provision, any order or circular cannot nullify that statutory provision. We are of the considered opinion that the Trade Notice no.19/96 dated 24th July, 1996 issued by Commissioner of Central Excise & Customs, Jamshedpur is illegal and contrary to the statutory provisions of Section 4(2) of the Act of 1944 and runs contrary to the law laid down by the Hon'ble Supreme Court. Therefore, the writ petition of the petitioner deserves to be allowed on this Count. 10. Hence the writ petition is allowed and the Trade Notice No.19/1996 dated 24th July, 1996 is quashed. 11. We are making it clear that this Court already passed the interim order dated 16th December, 1997, directing the petitioner to maintain complete accounts about the excise duty leviable under Section 4(1)(a) proviso (ia) and it shall not be realized till further orders. 11. We are making it clear that this Court already passed the interim order dated 16th December, 1997, directing the petitioner to maintain complete accounts about the excise duty leviable under Section 4(1)(a) proviso (ia) and it shall not be realized till further orders. Since the excise duty has not been realized by the petitioner, in view of that earlier order, no further consequential relief, at this stage, is required. 12. The writ petition is allowed accordingly.