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Union of India (Uoi) and ors. Vs. Union Carbide India Ltd. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 429 of 1969 and Writ Petition No. 3649 of 1971
Judge
Reported in1978(2)ELT1(All)
ActsCentral Excise Act, 1944 - Sections 2 and 3; Government of India Act, 1935 - Sections 311(2); Constitution of India - Article 366(2)
AppellantUnion of India (Uoi) and ors.
RespondentUnion Carbide India Ltd.
Excerpt:
.....the following namely plates, sheets, circles and strips. we perused the 2nd edition (1937) as well as the 3rd edition (1964) of the webster's dictionary. it would fail in a monopoly product. 21. assuming, however, that the product must be known to the trade as such, before it can be goods within the meaning of the act, we are satisfied that the aluminium cans or torch bodies are such a product. the question is whether aluminium cans are well-known to those who deal in it or use it. in the trad of torch manufacturers, this product is well-known and well-used, because no torch can be manufactured without these cans. the manual for nomenclature of aluminium mill products clearly proves that these cans are extruded shapes as well as pipes and tubes......in the course of manufacturing torches. these aluminium cans or torch bodies were subjected to excise duty under entry 27(e) of the central excises and salt act, 1944 as 'extruded shapes and sections including extruded pipes and tubes'. the companies challenged this levy by instituting separate writ petitions in this court.3. in the writ petition filed by the union carbide india ltd., three points were posed:-(1) the aluminium cans are not 'goods' within the meaning of the act and so no excise duty is leviable on them.(2) entry 27 is confined to manufactured goods. no manufacturing process is involved in making the aluminium cans.(3) under entry 27(e) duty is payable ad valorem since the aluminium cans are incapable of valuation, no duty can be levied.4. hon. g.c. mathur, j. held.....
Judgment:

Satish Chandra, J.

1. These two special appeals raise common question. The connected writ petition deals with an ancillary matter.

2. Special Appeal No. 307 of 1971 has been filed by the Union of India against the Union Carbide India Ltd. Special Appeal No. 429 of 1969 is by the Geep Flash Light Industries Ltd. against the Union of India and its Central Excise Authorities. Messers Union Carbide India Limited and the Geep Flash Light Industries Limited (hereafter called the companies carry on the business of manufacture and sale of, inter alia, torches of flash lights. They purchase aluminium slugs and from them made ''aluminium cans or torch bodies' in the course of manufacturing torches. These aluminium cans or torch bodies were subjected to excise duty under Entry 27(e) of the Central Excises and Salt Act, 1944 as 'extruded shapes and sections including extruded pipes and tubes'. The companies challenged this levy by instituting separate writ petitions in this court.

3. In the writ petition filed by the Union Carbide India Ltd., three points were posed:-

(1) The aluminium cans are not 'goods' within the meaning of the Act and so no excise duty is leviable on them.

(2) Entry 27 is confined to manufactured goods. No manufacturing process is involved in making the aluminium cans.

(3) Under Entry 27(e) duty is payable ad valorem since the aluminium cans are incapable of valuation, no duty can be levied.

4. Hon. G.C. Mathur, J. held that the process of making the aluminium cans or torch bodies amounts to manufacture. These cans were an intermediate product in the process of manufacture of torches. They were not known in the trade and were not marketable. They were not goods contemplated by the Act. The learned Judge did not go into the third question relating to valuation. On these findings, a writ of mandamus was issued restraining the excise authorities from levying and collecting excise duty on the torch bodies. They were directed to refund or adjust excise duty already collected on this product.

5. Soon after this decision, the company requested the Superintendent, Central Excise, Lucknow, to refund the excise duty paid on aluminium cans from 1.3.1965 to 28.2.1970. The Union of India, however, filed the present special appeal and on 12th May, 1971 obtained an interim order staying the operation of the order of the learned single Judge. The Superintendent thereupon intimated the respondent company that it should resume payment of excise duty as before with immediate effect and also pay up the arrears. The respondent company challenge the validity of this demand in the connected writ petition.

6. The writ petition filed by Messrs Geep Flashlight Industries Ltd. was heard by Hon. M.H. Beg J. (as he then was). The learned Judge held that the revision filed by the company was disposed of by a cryptic order, which did not disclose any reasons. The revisional jurisdiction was quasi-judicial, it was incumbent upon the Central Government to have given reasons for its conclusions. The order of the Central Government was quashed, and it was directed to rehear the revision. The learned Judge did not enter into the problems on the merits. Aggrieved, Messrs. Geep Flashlight Industries Ltd. have come up in special appeal. At the hearing, learned Counsel for the parties waived the techincal objections and urged that in this appeal also the merits of the matter may be decided.

7. The submission of the learned counsel in both the appeals fall into two classes: -

(1) Aluminium cans or torch bodies are not produced by the extrusion process but by the impact extrusion process The latter is not covered by Entry 27(e).

(2) The cans are nor manufactured. They are not goods eligible to excise duty.

8. We did not hear learned Counsel to make any submissions on the question of valuation for determining the duty, question which was also not dealt with by the learned Single Judge:

The relevant and material part of Entry 27 is:--

Item No. Description of Goods Rate of Duty1 2 327. Aluminium--(a) Pipes and tubes other than extruded 25% ad valorem.pipes and tubes(e) Extruded shapes and sections including 25% ad valorem.extruded pipes and tubes

According to the Excise authorities, aluminium cans or torch bodies are 'extruded shapes' and are covered by sub-entry (e). The companies case, however, is that the aluminium cans are not produced by the extrusion process but by a totally different process called impact extrusion process.

9. The impact extrusion process has been described in the petition of the Union Carbide as follows:-

'Aluminium slugs or circles purchased from Aluminium manufacturers are lubricated and fed into an impact extrusion press when the slugs are struck by the punch and are converted into a semi plastic state and are pushed into the die, at which stage cans are produced.'

10. In the case of Messrs Geep Flashlight Industries Ltd., it has been stated that in the extrusion process a heavy pressure is applied to a ram to continuously squeeze a heavy heated ingot of metal through the die producing a continuous extrusion or extruded shapes and sections according to the shapes of the die, whereas in impact extrusions a small slug is placed in the die and a punch hits the slug at high speed producing the aluminium shell.

11. From this description, it is clear that in the impact extrusion process, Aluminium slugs are pushed through the die. The Aluminium Association of India has produced a Manual of Nomenclature tor Aluminium Mill Products. It defines extrusion 'as a product formed by pushing material through a die'. The process of producing aluminium case or torch bodies, as described in the writ petitions, is basically pushing aluminium through a die, and is squarely within the definition of the terra 'extrusion' given in the Manual, This Manual does not recognise impact extrusion as a distinct or independent process. It can hence be safely assumed that in the aluminium industry, the term 'extrusion ' is known and understood as a process including the impact extrusion process. The Legislature when using the general term extruded in entry 27 (d) and (e) will, in our opinion, be deemed to have used the term in its general sense,

12. The matter can be looked at from another view point. The torch bodies are hollow and long tabular shapes. Assuming that they are not covered by sub-entry (e) as extruded shapes, they would, in our opinion, be 'pipes and tubes' within the meaning of sub-entry (d). This sub-entry provides for pipes and tubes other than extruded pipes and tubes. If impact extrusion process is something different from extrusion then it will be covered by sub-entry (d) in the general term 'pipes and tubes.' In the Manual of Nomenclatures for Aluminium Mill Products mentioned above, the pipes have been described as tube in standardized combinations of 'outsides diameter and wall thickness' The- 'tube' has been described as a hollow section long in relation to its cross section which is symmetrical and is round square, rectangular, hexagonal, octagonal, or elliptical, with sharp or rounded corners, and having uniform wail thickness except as affected by corner radii. The torch bodies clearly fall within the purview of pipes and tubes. Under both entries (d) and (e), the rate of duty is 25% ad valorem. So even if the fine technical distincticn between the extrusion and impact extrusion is. deemed to have been kept in mind by the Legislature while framing sub-entries (d) and (e) of Entry 27, it will gain no material advantage to the companies because the rate of duty is the same under both the sub-entries. It is true that the excise authorities were applying sub-entry (e). But, that presents no difficulty. It is well-settled that if power is there, a wrong recitation of the source of power will not invalidate its exercise [see Balakoticah v. Union of India-1958 S.C. 232 (236) and Hukum Chand Mills v. State of Madhya Pradesh AIR.-1964 S.C. 1324]. We find no merit in the first limb of the submissions made on behalf of the companies.

13. In relation to the second point, we are in argeement with the learned Single Judge that the production of torch bodies from aluminium slugs is manufacture. According to the Supreme Court's decision in the Delhi Cloth Mills' case : 1973ECR56(SC) there is a significant difference between the 'manufacture and processing'. The term manufacture signifies the bringing into existence of a new substance, and does not mean merely to produce some change in a substance, however, minor and inconsequential the change may be. According to the companies, the aluminium slugs are, by pushing through the die, made into hollow long tabular cans. These cans are entirely a distinct substance than the slugs from which they are made. It could be said that a new substance has been produced from the aluminium slugs. We are in agreement with the learned Single Judge that the process involved in the making of the cans is 'manufacture'.

14. Alternatively, Section 3 of the Central Excises and Salt Act, 1944, authorised levy of excise duty on goods, 'produced' or 'manu-factured in India. Thus the goods falling within the ambit of the entries which are not specifically confined to manufacture like sub-entries (d) and (e) as contrasted with sub-entry (b) of entry 27, which says [Manufactures the following namely plates, sheets, circles and strips...], would be liable to duty even if they are only 'produced' namaly processed and not manufactured. The cans are undeniably processed or produced from the slugs.

15. The next question is whether these cans are goods within the meaning of the Act. Entry 45, list I (Federal Legislative List) of the Seventh Schedule to the Government of India Act, 1935, authorised legislation in respect of duties of excise on tobacco and other goods manufactured or produced in India. In exercise of this legislative authority, the Central Legislature enacted the Central Excises and Salt Act, 1944. Section 3 there of provided for the levy of duties of excise on all excisable goods (other than salt) which are produced or manufactured in India at the rates set forth in the First Schedule. The Central Government was authorised to fix the tariff values of the articles enumerated in the first Schedule Section 2(d) of the Act defined 'excisable goods' to mean goods specified in the First Schedule as being subject to a duty of excise and includes salt.

16. Learned counsel appearing for the companies submitted that the excisable goods must be goods even though they have been specified in the First Schedule, before they will be liable to duty. The term goods not having been defined by the Act, it must be understood in its ordinary dictionary meaning. Reliance was placed upon the following definitions of the word 'Goods' given in Webster's Dictionary, as quoted by the Supreme Court in the Delhi Cloth Mill's case : 1973ECR56(SC) :-

Webster defines the word 'goods' thus : -

'Goods, Noun, plural (1) movables, household furniture, (2) personal or movable estate as horses, cattle, utensils, etc. (3) Wares : Merchandise commodities bought and sold by merchants and traders.'

It was submitted that this definition makes it clear that to become goods an article must be something which is known to the trade and can ordinarily come to the market to be bought and sold. The learned single Judge accepted this submission. It was held that the aluminium cans or torch bodies produced by the two companies are not sold, but are used by them in making torches. They are not known in the trade and are not marketable and hence they are not goods.

17. We have felt several difficulties in upholding this finding. The Government of India Act, 1935 by Section 311(2), defined the term 'goods' to include all materials, commodities and articles. The Constitution of India in Article 366(2) carries the same definition of goods. A perusal of the Central Excises and Salt Act, 1944 shows that the term 'Goods' has been used in the sense defined in the Constitution Acts. Section 3 of the Act provides for levy of excise duty on goods mentioned in the First Schedule. The Schedule was enacted by the Legislature itself. The Schedule groups the various entries under different heads. Entry 5 is headed 'crude materials except fuels'. Entries 6 to 11 A arc grouped under the heading 'Mineral fuels lubricants and related materials.' Entries 16 to 28 are clubbed together under the heading 'Manufactured goods classified chiefly by materials.' Entries 36 to 41 are entitled as 'Miscellaneous manufactured articles.' It is thus clear that things that can be identified as materials and articles of the kind described in the First Schedule are goods within the meaning of the Act. When the Legislature itself signifies the connotation of a term, it is not necessary or feasible to go to Dictionaries to find its meaning. We may say that learned Counsel for the parties invited our attention to various Dictionaries; None of the definitions of the terms 'material' and 'articles' include the concept of their marketability as an essential ingredient of their meaning. A thing would, nonetheless, be 'goods' even if it does not have a general market, where it can be easily bought or sold.

18. Sections of the Central Excises and Salt Act, 1944 levies excise duty on manufacture or production of goods, not on their sale. This was emphasised by the Supreme Court in the Delhi Cloth Mills' case (A.LR. 1963 S.C. 791). It was held that the fact that a particular substance produced at an intermediate stage is not put in the market for sale would not make any difference and will be immaterial for its liability to duty.

19. It is true that the Supreme Court in the Delhi Cloth Mills' case quoted the definition of the word (goods) from Webster's Dictionary. The third meaning mentioned there was-'(3) Wares, merchandise, commodities bought and sold by merchants and traders.' The judgment does not indicate the number of the edition placed before the Court. We perused the 2nd edition (1937) as well as the 3rd edition (1964) of the Webster's Dictionary. In both these editions the definition of the word 'goods' does not include the phrase 'bought and sold by merchants and traders.' It appears that Webster excluded the concept of marketability from the meaning of the word 'goods.'

20. The test of general marketability does not appear sound. It would fail in a monopoly product. For such a product, the relevant entry would become nugatory.

21. Assuming, however, that the product must be known to the trade as such, before it can be goods within the meaning of the Act, we are satisfied that the aluminium cans or torch bodies are such a product.

22. In the South Bihar Sugar Mills' case : 1973ECR9(SC) it was held that the kiln gas produced by the manufacturers of Sugar by carbonization process and of soda ash by solvay ammonia soda process was not carbon dioxide as known to the trade, i.e. to those who deal in it or who use it. The question is whether aluminium cans are well-known to those who deal in it or use it.

23. Both the companies have emphasised that they are the only two manufacturers of torches in this country. They have repeatedly stated that no one else produces aluminium cans or torch bodies, because this article is exclusively usable for manufacturing flashlights. The companies do not deny that the aluminium cans are a neces sary intermediate product in the manufacture of torches. In the trad of torch manufacturers, this product is well-known and well-used, because no torch can be manufactured without these cans. This product may not be known to the general public or to the traders in general it is known and used by that trade which makes torches.

24. In the case of the Union Carbide India Ltd., it is that in 1966, the company placed an order for these aluminium cans or torch bodies from Messrs Krupp Group of Industries, Lucknow. The company had supplied aluminium slugs to the Group, who, after producing the cans, returned them to the company. This is an example of trade in these cans between two different concerns. It was asserted that the cans were not sold by the Krupp Group. This is not very material, the fact remaining that the Krupp Group manufactured this particular article and supplied it to the company. It is not the case of the Carbide Company that his supply was made free, or that the Krupp Group did not charge anything for their labour and expenses. This transaction would show that the aluminium cans are known and dealt with as an entity by itself, are marketable according to the needs of these who deal it. The fact that these cans have a very limited and specialised market would make no impact on the legal position.

25. In the Delhi Cloth Mills' case (A.I.R. 1963 S.C. 781) the question was whether the processed oil at the stage at which it was sought to be subjected to excise duty, was refined oil or not. The Supreme Court held that it was not refined oil as known in the market. Refined oil was a commodity which had a wide and a general market. Similarly, in the present case the query should be whether aluminium cans are extruded shapes including pipes and tubes as known to the market. The Manual for Nomenclature of Aluminium Mill Products clearly proves that these cans are extruded shapes as well as pipes and tubes. This shows that these cans are known in their market, as defined in entry 27.

26. In our opinion, these cans were rightly subjected to excise duty. In this view the points raised in the connected writ petition do not require any consideration. That petition has become infructuous.

27. In the result, special Appeal NO. 307 of 1971 filed by the Union of India succeeds and is allowed. The judgment of the learned Single Judge is set aside and the writ petition filed by the Union Carbide India Ltd. is dismissed with costs in both courts. Writ petition No. 3649 of 1971 is also dismissed but without any order as to costs. Special Appeal No. 429 of 1969 filed by Messrs Geep Flashlight Industries is technically allowed. The order of the learned Single judge is set aside and the writ petition is dismissed with cots in both courts.


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