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Naini Glass Works Vs. Collector, Central Excise and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3606 of 1961
Judge
Reported inAIR1965All305
ActsConstitution of India - Article 226; Central Excise Act, 1944 - Sections 35; Central Excise Rules, 1944 - Rule 10
AppellantNaini Glass Works
RespondentCollector, Central Excise and ors.
Appellant AdvocateS.N. Kachar, Adv.
Respondent AdvocateJ. Swarup, Adv.
DispositionPetition dismissed
Excerpt:
.....manufacturing tincture bottles for medicinal and toilet purpose not for laboratory purpose - held, excise duty will be charged under section 23a (4) not under section 23a (2) which is for the bottles used for laboratory purpose. (ii) recovery - rule 10 of central excise rules, 1944 - recovery of duty which was charged less due to some official mistake falls under rule 10. (iii) writ - article 226 of constitution of india and rule 10 of central excise rules, 1944 - tax charged were less - notice under rule 10 issued for levying the remaining tax - period of three months expired due to intentional delay in issuing notice does not fall under principle of natural justice. - - but before i do so i would like to dispose of the preliminary objection made by the respondent's..........of mandamus be issued commanding the respondents not to demand and recover from the petitioner any excise duty in excess of what has already been paid over tincture bottles cleared from the petitioner's factory between 12th september 1961 and 23rd november, 1961 and to decide the petitioner's application for refund of excise duty, charged in excess, over tincture bottles cleared between 1st march, 1961 and 12th of september, 1961 and to refund the same to the petitioner. it would contribute to a clear understanding of the points raised before me if the following facts are mentioned: the petitioner is carrying on the manufacture of glass and glassware and in the course of its business also manufactures glass bottles and phials. for the first time with effect from 1st of march, 1961 excise.....
Judgment:

Jagdish Sahai, J.

1. Messrs. Naini Glass works, Naini (hereinafter referred to as the petitioner) have filed this writ petition under Article 226 of the Constitution of India against the Collector, Central Excise, Allahabad respondent No. 1 (hereinafter referred to as the Collector), the Inspector, Central Excise, Sector II, Naini, Allahabad, respondent No. 2 (hereinafter referred to as the inspector) and the Deputy Superintendent Central Excise, Allahabad, respondent No. 3, (hereinafter referred to as the Deputy Superintendent) with a prayer that a writ of mandamus be Issued commanding the respondents not to demand and recover from the petitioner any excise duty in excess of what has already been paid over tincture bottles cleared from the petitioner's factory between 12th September 1961 and 23rd November, 1961 and to decide the petitioner's application for refund of excise duty, charged in excess, over tincture bottles cleared between 1st March, 1961 and 12th of September, 1961 and to refund the same to the petitioner. it would contribute to a clear understanding of the points raised Before me if the following facts are mentioned: The petitioner is carrying on the manufacture of glass and glassware and in the course of its business also manufactures glass bottles and phials. For the first time with effect from 1st of March, 1961 excise duty was levied on glassware also. Section 13 of the Indian Finance Act provided for the same and in the Central Excise Tarriff, Item No. 23A was Introduced. That item reads: --

'23A. GLASS AND GLASSWARE-- 1. Sheet glass and plate glass ......10%2. Laboratory glass ware ........ 5% advalorem3. Glass shells, glass globes and chimneys for lamps and lanterns ......10%ad valorem4. Other glassware including tableware.............. 15% ad valorem'.

2. There is no dispute between the parties that the petitioner produced and cleared some bottles between the period 1-5-1961 to 12-9-1961 and on these bottles was leviable a duty of 15 per cent. ad valorem. It appears that the petitioner made a representation to the Collector of Central Excise, Allahabad whereupon he passed the following orders:

'1st Amendment to Trade Notice No. 73/61(Glass and Glassware No. 6/61)..

Add the following para at the end: --

Para: 3. it has been ascertained on enquiry, that 'Tincture bottles' are ordinarily used for scientific purposes. it has, therefore, been decided to classify 'Tincture Bottles' as 'laboratory Glassware' under Tariff item No. 23A (2) for purpose of assessment.

Hd. S. C. Mathur Collector 30-8-1961'

During the period 13-9-1961 to 23-11-1961 the petitioner again cleared off a large number of these bottles and the petitioner was charged a duty at the rate of 5% ad valorem. It appears that sometime thereafter the Central Excise authorities realised that the petitioner had been short levied during the period 13-9-1961 to 23-11-1961 and that the duty had to be levied at 15% with the result that an additional sum of Rs. 11,486.05 np. would be due to the Government from the petitioner on account of duty over and above what the petitioner had paid. In the meantime, the petitioner claimed from the Department the refund of a sum of Rs. 20,414.06 np. in respect of the period between 1-3-1961 to 12-9-1961 on the ground that the duty at the rate of 15% ad valorem had wrongly been paid and that it should have been charged at the rate of 5% with the result that the petitioner was entitled to that amount. Since the Department is Insisting on the payment of Rs. 11,486.05 np. and is not willing to refund the sum of Rs. 20,414.06 np. the present writ petition has been filed in this Court for the reliefs which I have already mentioned earlier.

3. There is no dispute between the parties-over facts in the case and for that reason it is not necessary to set out the various allegations made in the petition, the affidavit filed in support of it, the counter affidavit and the rejoinder affidavit. A reference to such of the allegations shall be made which are relevant for the decision of the questions raised before me.

4. I have heard Mr. Kackar, learned counsel for the petitioner and Mr. Jagdish Swarup for the respondents. Mr. Kackar has submitted the following two points before me : --

(i) That the correct duty leviable in the present case was 5 per cent ad valorem and not 15% ad valorem.

(ii) That the orders adverse to the petitioner had been passed without giving him an opportunity of being heard.

But before I do so I would like to dispose of the preliminary objection made by the respondent's counsel. Admittedly, the petitioner had a right of appeal. Section 35 of the Central Excises and Salt Act, 1944 reads: --

'35 (1) Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the rules made thereunder may, within three months from the date of such decision or order, appeal therefrom to the Central Board of Revenue, or, in such cases as the Central Government directs, to any Central Excise Officer not Inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by the Central Government. Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against.

Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order.

2. Every order passed in appeal under this section shall, subject to the power of revision conferred by Section 36, be final.'

There is also a right of revision conferred by Section 36 of the Act which reads:

'36. The Central Government may, on the application of any person aggrieved by any decision or order passed under this Act or the rules made thereunder by any Central Excise Officer or by the Central Board of Revenue, and from which no appeal lies, reverse or modify such decision or order.' Rule 213 reads :--

'21., Appeals--An appeal against an order or decision of an officer shall lie----

1. If the appeal is against an order or decision of a Superintendent

(a) Where there are Deputy Collectors, to the Deputy Collector to whom such Superintendent is subordinate and

(b) Where there are no Deputy Collectors, to the Collector or Deputy Collector incharge of a collectorate;

(ii) if the appeal is against the order or decision of an Assistant Collector----

(a) to the Collector to whom such Assistant Collector is subordinate; and

(b) Where there is no Collector, to the Deputy Collector-in-charge of the Collectorate;

(iii) if the appeal is against the order or a decision of a Deputy Collector----

(a) to the Collector to whom such Deputy Collector is subordinate; and

(b) where there is no Collector, to the Central Board of Revenue;

(iv) If the appeal is against an original order or decision of a Collector or Deputy Collector-in-charge of a Collectorate, to the Central Board of Revenue;

Provided that if, between the date of the order, or decision appealed against and the date of the hearing of the appeal, the officer who passed the order or decision is appointed as Deputy Collector or Deputy Collector-in-charge of a Collectorate or Collector, to whom the appeal lies under the foregoing provisions, the appeal shall be heard--

(a) If such officer is appointed as Deputy Collector, by the Collector;

(b) if such officer is appointed as Deputy Collector-in-charge of a Collectorate or Collector, by the Central Board of Revenue.'

Mr. Kackar contends that the petitioner did not file an appeal because the amount of duty assessed would have been payable under the provisions of Section 189 of the Sea Customs Act, 1878, which has been made applicable to the appeals under the Act by virtue of some of the Central Government Notifications, in the first place, its. 11,486.05 np. is not a big amount and certainly the petitioner, which is a very big concern, could have tied absolutely no difficulty in paying the same. Secondly, the amount could be deposited during the pendency of the, appeal and assuming that the petitioner did not have ready cash it could have had no difficulty in arranging for that amount during the period of pendency of the appeal. There is no justification for rushing to this Court under Article 226 of the Constitution of India and short circuit the remedy of appeal and revision provided by the statute. No good ground existed for by-passing the remedy of appeal. It is true that the Collector would have heard the appeal but there is no substance in Mr. Kackar's submission that the Collector would not have brought to bear an Impartial mind on the appeal. The Collector of Central Excise is a high public officer. It cannot be assumed that he would be biased and would not have decided the appeal in an impartial manner. The petitioner had no justification to assume without any reason bias at the hands of the Collector, and not to file an appeal In any case, if it was dissatisfied with the decision of the Collector it could have moved the Central Government.

It must be realised that when the legislature in its wisdom and with all solemnity makes statutory provisions for appeals and Revisions it is the duty of the courts to respect it and enforce it. The right of the departmental appeal and revision has been provided and that remedy should not normally be by-passed. it must also be realised that the rule that during the pendency of the appeal the amount of duty assessed should be paid is a rule based on sound public policy and has been enacted in the Interest of the nation. The Idea is to realise public dues so that the work of the nation may go on and public debts may not be put in jeopandy, I am clear in my mind that this writ petition should be dismissed on this ground. However, my orders are appealable and Mr. Kachar has also argued of the merits of the case. I, therefore, think it fit and proper that I should consider his submissions on merits also. J will take the submissions seriatim.

5. For the first time on 1st of March, 1961, excise duty became leviable on glassware also. The Central Excise Tariff item No. 23-A reads: --'23A Glass and Glassware

1. Sheet glass and plate glass10% ad valorem.2. Laboratory glassware5% ad valorem3. Glass shells, glass globes and chimneys for lamps and lanterns.10% ad valorem.4. Other glassware includingtableware 15% ad valorem.'

The question for consideration is whether the bottles which the petitioner has described as tincture bottles are liable to be charged duty at the rate of 5 per cent. as laboratory glassware or at 15 per cent. as other glassware including tableware. Mr. Kacker has contended that the respondents themselves for some time treated the tincture bottles as laboratory glassware and that in Delhi they continue to do so even now. it was also contended by the learned counsel that the ground on which bottles are being levied as other glassware is that they are not being put to laboratory use. In my judgment, there can be no escape from the conclusion that the bottles in question which the petitioner has described as tincture bottles cannot be treated the laboratory glassware. it is stated in paragraph 15 of the counter-affidavit which, is sworn by Krishna Narayan Karkhanis, Superintendent of Central excise, Allahabad as follows : --

'15. That the contentions made in para 18 are denied. The duty of 15 per cent. ad valorem having been correctly realised there is no question of with-holding any amount of the petitioner on that account. The duty at 5 per cent. ad valorem being a short levy, a demand could be raised under Rule 10 of the central Excise Rules, 1944. Under Item 23-A (2) of the 1st Schedule to the Central Excises and Salt Act, 1944, laboratory glasswares are essessable at 5 per cent. ad valorem. Even under the orders dated 30-8-1961, a copy of which is annexure 'A' to the writ petition, the essential condition for classification as laboratory glassware la that bottles should be used for scientific purposes or in other words for the purposes of laboratory. The bottles which the petitioner claims to be treated as Tincture Bottles within the meaning of the term used in the order referred to above are not used for scientific purposes or in other words for the purposes of laboratory. The bottles do not have the pre-requiesites of being admitted as tincture bottles and appear to be used for filling medicinal products and many other articles, as is evident from the fact that the bottles named Tincture bottles by the petitioner factory have also been found embossed with the following: --

1. Dongre'

2. 'Baidyanath'

3. 'Sarin Dant Manjan'.'

The allegations made in this paragraph have not been controverted in the rejoinder-affidavit. In paragraph 10 of the rejoinder-affidavit it is stated as follows: --

'10. That the contents of paragraph 15 of the counter-affidavit are argumentative in nature and to not require reply by means of an affidavit.' The result, therefore, is that the allegations that the bottles in question which the petitioner has described as tincture bottles, have engraved on them Dongre, Baidyanath and Sarin Dant Manjan. These there firms are well known. They sell medicines and effect goods. Consequently, there cannot be any manner off doubt that the bottles in question even though described by the name of tincture bottles by the petitioner had been manufactured for purposes of being used in order to contain medicine and toilet goods.

That being the position, it cannot be said that the bottles are being used for laboratory purposes and they cannot therefore be held to be comprehended in the expression laboratory glassware. Even on marits, therefore I am of the opinion that the correct duty chargeable was 15 per cent. ad valorem, mere is, therefore, no substance in the first submission of the learned counsel.

6. Coming to the second submission the question that requires consideration is whether the duty charged earlier could be refunded and a higher duty demanded on the ground that an error had been committed by the officials of the Excise Department. Rule 10 which admittedly is statutory rule reads: --

'10. Recovery of duties or charges short-levied or erroneously refunded--

When duties or charges have been short-levied through inadvertence, error, collusion or misconstruction on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such cause, erroneously refunded, the person chargeable with the duty or charge, so short levied, or to whom such refund has been erroneously made, shall pay the deficiency or pay the amount paid to him in excess, as the case may be, on written demand by the proper officer being made within three months from the date on which the duty or charge was paid or adjusted in the owners account-current, If any, or from the date of making the refund.'

On behalf of the Department it is contended that ademand notice in respect of Rs. 11,486.05 nP wasmade on the ground that an error had been committed by the officials in the Central Excise Department. I am satisfied that it is a case of error. Theonly dispute between the parties was whether thebottles could be treated as laboratory glassware orother glassware. During a period of two monthsand ten days the Department officials erroneouslyconsidered the bottles to be laboratory glassware.However, soon reusing their mistake they askedfor the recovery. In these circumstances, in myjudgment, the case clearly fell within Rule 10 ofthe Rules and the demand was rightly made. Theauthorities had also the jurisdiction to make thedemand. In my opinion, therefore, there is nosubstance in the second submission of Mr. Kackaralso.

7. All that now remains to be considered is whether it was necessary to give to the petitioner a notice to show cause why it should not be ordered to refund the sum of Rs. 11,480.05 nP. it is elementary that when time is of the essence and if in issuing show cause notice the action would become time barred, the principles of natural justice do not apply. Rule 10 gives the limit of three months for making the demand. The period of three months would have been over in the process of Issuing a show cause notice and receiving a reply and deciding it. It is well settled that when immediate action is required to be taken and the delay which the right of hearing may involve is likely to frustrate the very purposes of the action, the principles of natural justice would not apply. In such a case all that is required is that the authority taking action must keep an attitude of Impartiality and fairness and that has been done in the present case. it was held in Nagendra Nath Bora v. Commr. of Hills Division, AIR 1958 S.C. 398 that principles of natural justice would vary from case to case.

In the present case all that the petitioner had to say, with regard to the bottles being charged as laboratory glassware, has been mentioned in the written applications made by them to the Assistant Collector Central Excise. Therefore, he had before him the version of the petitioner before he passed the order asking the petitioner to refund the amount of Rs. 11,486.05 nP. and refusing to pay back to them a sum of Rs. 20,414.06 nP. I have already said above that the petitioner's application was considered by the Assistant Collector when he passed the Impugned order. He knew what the petitioner's case was that the bottles were laboratory glassware. Even it a show cause notice were given, the petitioner would not have said anything different or anything more. it is well settled that if a person had been heard at one stage he need not be heard at other stages, See F. N. Roy v. Collector of Customs, Calcutta, (S) AIR 1957 SC 648. There is, therefore, no substance in the third and the last submission of the learned counsel also.

8. For the reasons mentioned above I am of the opinion that there are no merits in this writ petition and it must fall. It is accordingly dismissed with costs.


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