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The Andhra Pradesh Paper Mills Ltd. Vs. the Asstt. Collector Central Excise, Rajahmundry - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 653 of 1972
Judge
Reported inAIR1975AP254
ActsCentral Excises Act, 1944 - Sections 3
AppellantThe Andhra Pradesh Paper Mills Ltd.
RespondentThe Asstt. Collector Central Excise, Rajahmundry
Appellant AdvocateB.C. Jain and ;M.N. Bung, Advs.
Respondent AdvocateK. Subrahmanya Reddy, Central Govt. Standing Counsel
DispositionPetition allowed
Excerpt:
.....it only on first occasion - notification impliedly provides for benefit to mills enlarging their production capacity - no stipulation as regards number of enlargement - held, petitioner company entitled to benefit on second enlargement too. - - 3. this apprehension on the part of the company and its stand that in the circumstances of the case a writ petition alone is the proper and effective remedy, ere demonstrated by the following circumstances as well. ' it is thus abundantly clear that not only the respondent but also the collector of central excise as well as the government of india have made up their minds by adopting the construction given to the notification by the respondent in this case. the attitude of the concerned authorities is clearly beyond doubt. i am thus..........was prepared to give the concession as per the notification dated 1-10-1965 only in respect of the enlarged capacity installed on the first occasion and that concession he gave. he. however, refused to extend the same concession to the further expansion made by the company under the licence dated 11-5-1966 by 13,500 tons more per year. aggrieved by this order the company preferred an appeal on 28-7-1970 to the deputy collector, central excise, guntur. it is stated in the petition that no hearing was fixed by the date the writ petition came to be filed in january. 1972. it is further alleged in paragraph 20 of the petition that the respondent is only action under the instructions of the central board of revenue and consequently the normal remedies of appeal and revision after the.....
Judgment:
ORDER

Sambasiva Rao, J.

1. The petitioner is 'The Andhra Pradesh Paper Mills Limited' a company incorporated under the Indian Companies Act. It has brought this writ petition for a Mandamus to the Assistant Collector, Central Excise, Rajahmundry directing him to extend to the company the benefits of the Notification No. 163/65 C. E. dated 1-10-1965 issued by the Government of India, Ministry of Finance (Department of Revenue) as subsequently amended by a number of Notifications. The principal Notification and the subse-quent amending Notifications relate to the concession in excise duty given to enlarge capacities of production of pacer mills.

2. A few material facts of the case are necessary. The mill originally belonged to the Government of Andhra Pradesh. Its then capacity was 3,000 tons per year. The Union Government gave a licence to expand the capacity to 18,000 tons per year. The State Government acquired the entire or part of the machinery necessary for enlarging the capacity of the mills. At that stage i.e. in or about July, 1964 the State Government sold the mill to the petitioner-Company. The licence relating to expansion also was transferred to it by the Union Government by its proceedings dated 26-11-1964. A Notification bearing No. 163/65 was issued by the Government of India giving certain concessions in the levy of excise duty leviable on any factory manufacturing paper commencing production from 1st March. 1964 or enlarging its productive capacity from that date. The company completed the enlargement of the capacity to 18,000 tons per year as originally sanctioned by the Union Government. It obtained another licence dated 11-5-1966 from the Union Government for a second expansion of the productive capacity by another 13,500 tons per year. The respondent, viz., the Assistant Collector, Central Excise. Ra-jahmundry was prepared to give the concession as per the Notification dated 1-10-1965 only in respect of the enlarged capacity installed on the first occasion and that concession he gave. He. however, refused to extend the same concession to the further expansion made by the company under the licence dated 11-5-1966 by 13,500 tons more per year. Aggrieved by this order the company preferred an appeal on 28-7-1970 to the Deputy Collector, Central Excise, Guntur. It is stated in the petition that no hearing was fixed by the date the writ petition came to be filed in January. 1972. It is further alleged in paragraph 20 of the petition that the respondent is only action under the instructions of the Central Board of Revenue and consequently the normal remedies of appeal and revision after the assessments were made at the enhanced rates would only be illusory and not serve any useful purpose. It is therefore maintained that the writ petition alone is the only available effective remedy.

3. This apprehension on the part of the company and its stand that in the circumstances of the case a writ petition alone is the proper and effective remedy, ere demonstrated by the following circumstances as well. Records are now placed before me to show that on the earlier occasions also assessments were made on similar basis refusing to grant concession to the enlarged capacity effected on the second occasion. An appeal was preferred to the Collector of Central Excise, Guntur, by the company and it was dismissed on 22-4-1970. The company preferred a revision application to the Government of India, Ministry of Finance. By Order No. 1/74 dated 8-1-1974 the Government rejected the revision petition holding that

'according to the wordings of the above mentioned Notification (i.e., Notification No. 163/65 dated 1-10-1965) a factory existing before 1-3-1964 but whose production capacity has been enlarged on or after 1-3-1964 will be entitled for concessional slab rate of duty under column 5 thereof only for first time when the production capacity is enlarged and not every time whenever production capacity is enlarged. The revision application is therefore rejected.'

It is thus abundantly clear that not only the respondent but also the Collector of Central Excise as well as the Government of India have made up their minds by adopting the construction given to the Notification by the respondent in this case. Their construction, to put it briefly, is that the concession given under the Notification is not available to capacities enlarged for the second or further time. It is thus manifest that there would not be any useful purpose by referring the petitioner Company to an appeal and a further revision to the Government though those remedies are available to him. The attitude of the concerned authorities is clearly beyond doubt. I am thus satisfied that the writ petition alone is an effective remedy open to the peti-tioner-Company.

4. In the counter-affidavit as well as in the arguments addressed before me by the standing counsel for the respondent it is stated that the concession under the G. O is limited only to the first enlarged capacity. It is not available and not intended to be made available to any second or further enlargement of the capacity. If such benefits are given, it will result in giving double benefit to the factories.

5. I will now examine the relative merits of the claim and counterclaim of the petitioner and the respondent In order to do so it is necessary to read the material portion of Notification No. 163/65 dated 1-10-1965:

'..... the Central Government hereby exempts paper, all sorts, falling under this Item and specified in column 2 of the Table annexed hereto from so much of the excise duty leviable thereon under the said Item, read with any Notification for the time being in force issued by the Central Government in relation to the duty as leviable, as is specified in the corresponding entry in columns 3, 4, 5 (a), 5 (b) and 5 (c) of the said Table as the case may be.'

Then follows the Table which gives the different columns. In column 1 descriptions of the paper are given, first of which is 'Printing and writing paper fall-ing under sub-item (3) of Item No. 17 of the First Schedule to the Central Excises and Salt Act, 1944'. It is common ground that the paper produced by the company Comes under one of the categories mentioned in column (1). We are not here concerned with any other column, excepting columns 5 (a), 5 (b) and 5 (c). These sub-columns occur under the following headings:

'Any factory commencing production for the first time on or after the 1st March, 1964 or any factory existing immediately before the 1st March, 1964 whose production capacity has been enlarged and brought into operation on or after the 1st March, 1964 to the extent such production is attributable to the enlarged capacity.'

Columns 5 (a), 5 (b) and 5 (c) occur under the following headings:

Column 5 (a):

'During the first 12 months of the Commencement of Production.' Column 5 (b):

'During the second 12 months of the commencement of production.' Column 5 (c): 'During the period subsequent to the first 24 months of the commencement of production.'

The concessions that are given to the fac-tories under these columns vary from quality to quality of paper described in column 1. The actual quality of the paper is not in dispute, as I have already said. The only point in controversy between the parties is whether the benefit given under column 5 and detailed in sub-columns (a), (b) and (c), is available to the production capacity enlarged on the second occasion also. To briefly recall the facts, on the first occasion the production capacity of the company Mills was increased from 3,000 tons to 18,000 tons to 31,500 tons. There is no dispute in regard to making to the petitioner available the benefit of the concession in regard to the first enlargement of 18,000 tons. It is denied only to the second enlargement of the capacity by 13,500 tons. While the petitioner claims that under the language of the Notification the concession is available to this enlargement also, the Revenue says that the benefit is limited only to the first enlargement. Both sides rely on the language of the Notification for their respective contentions.

6. That material portion I have already extracted. The heading to column 5 is the most important portion of the Notification which has to be understood for the purpose of the present controversy. According to it, if a factory commences production on or after 1-3-1964 for the first time, it gets the benefit. Likewise if any factory which had been existing before that day but whose production capacity has been enlarged and brought into operation on or after 1-3-1964, it will also get the benefit of the concession, but only to the extent such production is attributable to the enlarged capacity. Thus, 1st March, 1964 is made crucial. There cannot be any iota of doubt that the second enlargement in the production capacity of the company's paper has been planned and brought into operation after 1st March; 1964. Thus on a plain reading of the language this concession should apply to this enlargement as well. But it is contended that the company has enjoyed the benefit of the concession once when it enlarged its capacity to 18.000 tons after 1st March, 1964 and so it is not entitled to the same benefit for the second time. To put the contention of the respondent in other words, the concession postulated toy the notification is intended to be given only to a first enlargement, i.e. to a single enlargement alone. It is argued that otherwise the Notification would have mentioned that enlargement in the production capacity 'from time to time' would enable the factory to get the benefit. When those words are absent particularly in a Notification which relates to finance and taxation, it should be construed strictly. I am unable to uphold this construction which, in my view, is not only not warranted by the languageemployed, but also appears to be opposed to it. The Notification has not hesitated to use the words 'for the first time' when it has referred to factories commencing production on or after 1st March. 1964. If its intention Is to limit the concession to enlarged capacities for the first time alone, then it would have clearly said so. When these specific words are used in one part and not used in another, the intention of the Government is quite manifest and beyond any doubt. It did not want to limit the scope only to the first enlargement or a single enlargement. The words 'Whose production capacity has been enlarged and brought into operation on or after the 1st March, 1964' are very clear in disclosing the intention behind the Notification that enlargement in production capacities, one or more, provided they are on or after 1st March, 1964 would be entitled to the benefit. To read some other meaning into it would in my opinion be doing violence to the language of the Notification.

7. Even otherwise the contention of the respondent appears to be against the intendment and the policy behind the Notification. The intendment appears to be to give encouragement to new production of paper or new enlargements in production capacities of paper factories. If that be the intendment, there would be no point in limiting the benefit only to the first or a single enlargement,

8. I do not find any justification for the apprehension expressed by the learned Standing Counsel for the Central Government that if the Notification is read in this way, it would result in giving the benefit twice over to the paper mills. The first enlargement will get its benefit according to sub-columns 5 (a), 5 (b) and 5 (c) of four years to the extent the increased production is attributable to the enlargement. When the second enlargement takes place, only the enhanced production that is attributable to it alone would get the benefit of the concession mentioned by sub-columns (a), (b) and (c). I fail to see how a double benefit would accrue to the factory.

9. For the reasons aforesaid, I do not think that the respondent or the Government of India are correct in interpreting the Notification in question in the way in which they have done by limiting the benefits thereunder only to the first enlargement. By virtue of the Notification, a right has vested in the petitioner to the benefit enunciated in it and the respondent is bound to give effect to it I am therefore satisfied that the petitioner is entitled to a writ of Mandamus and I consequently direct a writ to be issued directing the respondent to give the benefit of the Notification No. 163/65 dated 1-10-1965 to the second enlargement of 13,500 tons of paper per year as per the provisions of sub-columns 5 (a), 5 (b) and 5 (c) of the Notification. The Writ petition is thus allowed with costs.


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