1. The petitioners are concerned with five different units all manufacturing detergent powder. This article, detergent powder, is liable to excise duty under Item No. 15AA of the Central Excises and Salt Act, 1944 read with Section 3 of that Act. The petitioners are carrying on manufacturing activity at Vatva in Ahmedabad District, and according to the petitioners, the goods manufactured by the petitioners' firms are exempted from payment of excise duty under notification No. 101/66 dated June 17, 1966. Their further contention is that since the goods are totally exempted from excise duty, by virtue of notification No. 111/78 they are also exempt from taking out a licence for the manufacture of detergent powder. The first respondent herein is the Union of India. The second respondent is the Collector of Central Excise, Baroda Collectorate. The third respondent is the Deputy Collector of Central Excise, Ahmedabad. The third respondent is the Superintendent of Central Excise and the fifth respondent is also the Superintendent of Central Excise. The brief facts of the petitioners' case are that the five concerns of the petitioners which are all located in the vicinity of each other are situated at Vatva. According to them, the petitioners concerned are not using power for the purpose of manufacturing detergent powder. The petitioners' case is that they have been manufacturing detergent powder at the present place of manufacture at Vatva since June 1980. Under notification No. 101/66, detergent powder which falls within the description of 'organic surface active agent' is totally exempt from the whole of the excise duty leviable thereon if in or in relation to the manufacture and packing of such surface active agent no process is ordinarily carried on with the aid of power or of steam for heating. The petitioners submit that their method of manufacturing detergent powder is as follows :-
The raw materials used in the manufacture of detergent powder are mainly Alkyd Benzene, Sulphuric Acid and Soda Ash. It may be pointed out that according to the petitioners, what is referred to on record as Olevue Acid is nothing else but highly concentrated sulphuric acid. Some quantity of colour and flavouring agents is also used in the manufacture of detergent powder. The raw materials namely, alkyd benzene, and sulphuric acid are purchased from different dealers in the open market. These raw materials are manufactured by different manufacturers and are duty-paid if duty is required to be paid on the same. Each of these raw materials, alkyd benzene and sulphuric acid, are purchased in bulk in liquid form. Alkyd benzene is imported material and the petitioners have the appropriate licence for importing this particular raw material. The two materials, alkyd benzene and sulphuric acid, are of a hazardous nature and these raw materials are brought to the premises of the petitioners' factories by specially designed motor tankers which are also fitted with compressors for quick and easy delivery. The petitioners' case is that for the purpose of storing the raw materials they have installed huge storage tanks of 300 to 900 tonnes approximately above the ground. Alkyd benzene and sulphuric acid are delivered to the premises of the petitioners in these motor tankers. The compressors on the motor tankers are operated with the aid of the power of the tankers themselves and these compressors are used for the purpose of transferring liquid alkyd benzene or liquid sulphuric acid from the motor tanker to the storage tank of the petitioners. According to the petitioners, these tankers which are fitted with compressors are like fire engines which are also fitted with such devices with a view to pressurise water so that the same can be used for extinguishing fire at great heights. Sulphuric acid or alkyd benzene transported by such tankers is pumped into storage tanks of the petitioners with the help of their own compressors fitted to the tankers. Sometimes, such tankers which bring sulphuric acid or alkyd benzene are not fitted with their own compressors and sometimes, according to the petitioners, compressors fitted to the tankers may not be functioning. In such cases, the petitioners use their own power-driven pumps for the purpose of transferring liquid alkyd benzene or liquid sulphuric acid from the motor tanker to the storage tanks. These electric pumps are fitted near the storage tanks. The function of these electric pumps is merely to facilitate transfer of the liquid from the tanker to the storage tank and according to the petitioners, in all industries where delivery of liquid is obtained from tankers to the storage tank, it is done with the aid of compressors fitted to the tanker or with the aid of electric pumps fitted and kept at the factory taking the deliver, near the storage tank. According to the petitioners, use of electric pumps is only for the purpose of obtaining and storing sulphuric acid or alkyd benzene which are brought in huge quantities by the tankers day in and day out.
2. The petitioners' further case is that the storing of sulphuric acid and alkyd benzene in storage tanks, though within the precincts of factory premises is outside the factory and has no bearing or connection with the manufacturing process.
3. The further case of the petitioners is that alkyd benzene and sulphuric acid are taken by means of pipes from the storage tanks to the measurement tanks of different sizes through pipe-lines and the liquid flows on account of natural gravitation from the storage tank to the measurement tank and no power is used for transferring liquids from the storage tank to the measurement tank. After the sulphuric acid and alkyd benzene are measured, they are then thrown into re-action vessels from the measurement tanks and again, the transfer of liquids from the measurement tanks to the re-action vessels is without the aid of power but through the use of pipes. The re-action vessels are operated manually and sulphuric acid and alkyd benzene are stored sufficiently by the factory workers with hand-operated devices until the re-action between the two liquids, namely, alkyd benzene and sulphuric acid, is complete. The material in the re-action vessel is then allowed to settle and the waste acid and acid slurry are separated from the re-action vessel. Waste acid is then thrown into underground tanks with the help of pipes without the aid of power and it becomes waste and is utilised as a by-product of this industry. Acid slurry which comes into existence in the re-action vessel is then transferred to storage tanks through pipes, once again without the aid of power and acid slurry is taken to storage tank through pipes. The acid slurry which has been into existence in this manner is classified under tariff item No. 15AA by the Department as organic surface active agents. Soda ash is then mixed with that acid slurry so that ultimately detergent powder in powder form is manufactured. First the acid slurry is mixed with water in certain definite proportion and the mixture is taken by the workers to the process shed where the same is mixed with soda ash. This is done by the workers manually without the aid of power for obtaining a homogeneous mixture and according to the petitioners, it is at this stage that the detergent powder as known to the market comes into existence. This detergent powder is then packed in plastic bags by the workers manually and stitched by them manually with the help of stapler. The petitioners submit that the plastic bags in which the detergent powder is packed are purchased from the open market.
4. Thus, according to the petitioners above the entire process is gone through in their factory, from the stage of obtaining raw materials till the stage of getting the bags packed and detergent powder is available for delivery to purchasers. The grievance of the petitioners is that in July, 1980, an Inspector of the Excise Department had gone to their factory and inspected the factory. Thereafter on 19th December, 1980 a party of officers from the Excise Department came and seized the goods of the petitioners and some of the books and other materials from the factory premises on the ground that these goods were liable to confiscation as excise duty was not paid in respect of these excisable articles. The case of the Department is that these goods are liable to excise duty and since excise duty had not been paid all along, these goods were liable to confiscation and as a step preliminary to confiscation, the goods were seized.
5. Under these circumstances, the petitioners have come to this Court praying for the relief of a writ of mandamus or in the nature of mandamus or a writ in the nature of certiorari or any other appropriate order or direction or writ directing the respondents to treat the manufacture of detergent powder by the petitioners as having been done without the aid of power and for a further writ, direction etc. on the respondents, their servants, agents, etc. to treat the manufacture of detergent powder by the petitioners eligible as for exemption under notification No. 101/66 and they have asked for directions etc. quashing and setting aside the seizure made by the respondents under the panchnamas at annexure 'B' in this petition. The petitioners have also prayed for interim reliefs but it is not necessary to go into the question of interim reliefs at this stage. They have prayed for quashing and setting aside of the order of seizure. On behalf of the respondents Mr. H. M. Mehta, learned counsel, has urged by way of preliminary objections, first that the Court should allow the adjudication process which has already been set in motion by issuance of show cause notices in June, 1981 to be gone through, so that questions of fact regarding the excisability of the detergent powder manufactured by the petitioners can be examined at the departmental level. He has further urged that if the petitioners are aggrieved by the order of adjudicating officer, there is provision for appeal and revision therefrom to higher authorities and that until all these alternative remedies are exhausted, the petitioners have no right to approach the court and therefore this petition is not maintainable. He has further urged that this is not a question of ultra vires or challenge on the ground of ultra vires but there are disputed questions of fact as to whether the goods are liable to excise duty or not. Thus he has urged that because of the ground of disputed questions of fact and on the ground also because of existence of alternative remedy the petition should be held to be not maintainable by this High Court and on this preliminary ground the special civil application should be dismissed.
6. In view of the affidavits which have been filed in this case there are in fact no disputed questions of fact. On behalf of the Department, two affidavits have been filed. One is the affidavit of J. R. Mahida, fourth respondent herein, being the affidavit dated April 27, 1981. Thereafter the petitioners filed their affidavit-in-rejoinder, being the affidavit of Karsanbhai Khodidas Patel of May 12, 1981. J. R. Mahida the fourth respondent herein has also filed a further affidavit-in-reply, being the affidavit dated August 4, 1981 and a further affidavit in rejoinder by Karsanbhai Khodidas Patel of August 6, 1981 has been filed. In the first affidavit filed by J. K. Mahida on April 27, 1981 the facts and description of the processes set out in the petition were not challenged by the affidavit-in-reply and the only contention was that it was a question of fact whether the manufacturing process was being carried on without the aid of power and it was contended that power was used for storing and lifting at high level the raw materials in question with a view to acquiring gravitational force for the liquid to subsequently flow through pipelines to the re-action vessels in the course of manufacturing processes stated above and it was contended that since the goods were not eligible for exemption under notification No. 101/66, notification No. 111/78 exempting the units where goods wholly free from excise duty are being manufactured, from licence control under the excise rules, was also not applicable to the case of the petitioners. The contention of Mahida in the affidavit of April 27, 1981 was that as soon as it came to the notice of the Department that electric power was used in or in relation to manufacturing of goods in question at the stage of lifting of raw materials, the departmental authorities have initiated the action in question.
7. It was not the case of the petitioners that by storing the materials at high level and special gravitational force was acquired by which accelerated the process of manufacture of acid slurry. The main thrust of the contention in the affidavit of April 27, 1981 was that powder was used in relating to the manufacture of excisable goods, namely, detergent power because electric power was used for the purpose of storing the raw materials and that part of the affidavit was in relating to the process of manufacturing of excisable article, namely, detergent powder and since power was so used, benefit of the exemption notification No. 101/66 was not available to the petitioners. However, in the affidavit of August 4, 1981 it has been contended on behalf of the petitioners in paragraph 2 of the affidavit that under section 2(f) of the Central Excises Act, the definition of 'manufacture' includes any process incidental or ancillary to the completion of a manufactured product and therefore the term includes within its sweep any process which is conjoined with or accompanying or going along with the manufacture. It also includes any process which consists of or accelerates any process connected with the manufacturing process, and it is contended that the use of power in the instant case is not merely for storage as contended by the petitioners but power in fact is applied for bringing the raw materials in the premises of manufacture. Further, use of power is resorted to in order to facilitate and accelerate the manufacturing process. The process role of the use of power in or in relation to manufacture is the subject matter of the adjudication proceedings which are in progress before the Collector of Customs and it is only after the finding is given at the conclusion of the adjudication process that the petitioners could conceivably decide whether they have any cause to raise any grievance against the same.
8. We may already point out that the contention that gravitational force accelerated the process of manufacture seems to be an after-thought because it was only after the arguments had begun in this matter and the case was adjourned for some time to enable the parties to see whether any reference to higher authorities in the Excise Department or the Central Government might help bringing about a solution to the problem without the matter having to be decided by the High Court and after the matter had been part-heard for some time, that this affidavit of 4th August, 1981 came to be filed putting forward the contention of the process of manufacturing being accelerated by gravitational force. It was contended that gravitational force was given to raw materials by keeping the storage tank at some elevation and inasmuch as power was used for transferring liquid alkyd benzene and liquid sulphuric acid from the tankers to this storage tank and power was in fact used for imparting gravitational force to the raw materials, namely, alkyd benzene and sulphuric acid.
9. As regards the first contention that there are disputed questions of fact and therefore, the matter should not be decided by the High Court, it may be pointed out that the broad facts regarding what happens in the factories of the petitioners from the stage when raw materials are received in tankers upto the stage of the packed goods, namely, detergent powder in plastic bags leaving the factory in plastic bags fully packed, are not in dispute. It must be borne in mind that according to the process described by the petitioners, from the storage tanks the two liquids alkyd benzene and sulphuric acid go to measurement tank and from the measurement tank after the liquids are measured properly, they are taken to the re-action vessels through pipes. From the storage tank the movement to measurement tank is by pipes and from the measurement tank to re-action vessels the movement is again by pipes. Therefore, the very intermediation of measurement tanks between storage tanks and re-action vessels eliminates any use of gravitational force so far as the process of manufacture is concerned, in the re-action vessels. It is only when the two liquids, namely alkyd benzene and sulphuric acid re-action each other that the process of manufacturing acid slurry starts. Acid slurry itself is an excisable article under article 15AA if it does not fall within the exemption notification No. 101/66. Re-action vessels are operated manually and therefore the intermediation or intervention at the intermediate stage of measurement tanks takes away gravitational force if any acquired by the storage of the liquid alkyd benzene or sulphuric acid in the storage tanks which are stated to be at some elevation above the ground level. Under these circumstances, the question of accelerated process which seems to have been an after thought is irrelevant and it may be pointed out that it was only after the matter has remained part-heard for some time that this aspect of gravitational force accelerating the process of manufacture has been urged on behalf of the respondents. On the broad facts of the case, there are no disputed questions of fact and the preliminary contention that there are disputed questions of fact does not survive. Moreover, it may be pointed out that only have the investigations by the Excise Department been completed but even a show cause notice has been issued in the month of June, 1981 and and therefore, by the time the show cause notice came to be issued the entire investigation is completed and nothing new further remains to be done.
10. As regards the question of alternative remedy, it must be borne in mind that the goods of the petitioners were seized on 19th December, 1980 on the ground that the Excise Department was of the opinion that the detergent powder manufactured by the petitioners was liable to excise duty, and the whole contention about whether the goods are liable to excise duty or not on facts which are not in dispute now remains to be decided. Therefore, if it is held that the goods are not liable to excise duty, then nothing further survives and even the existence of an alternative remedy is no bar to the maintainability of the petition. It is only as an exercise of self restraint or self denial that High Courts have been asking parties to follow alternative remedy if alternative remedies are available. In this connection, there is the decision of the Supreme Court in Coffee Board, Bangalore v. Joint Commercial Tax Officer, Madras, A.I.R. 1971 S.C. 870 where it has been pointed out by the Supreme Court that where the action is taken under an ultra vires statute or where, although the statute is intra vires the action is without jurisdiction or the principles of natural justice are violated, a right to move the Supreme Court under article 32 for enforcement of fundamental right exists. Errors of law or fact committed in the exercise of jurisdiction founded on a vital law do not entitle a person to have them corrected by way of petitions under article 32. The proper way to correct them is to proceed under the provisions for appeals etc. or by way of proceedings under article 226 before the High Court. Therefore, so far as a petition under article 226 is concerned, it is one of the proper ways to correct errors of law or fact committed in the exercise of jurisdiction on a valid law. There are several decisions of different High Courts also which lend support to our conclusion that in the present case or in cases like the present one, existence of an alternative remedy by way of departmental proceedings before the excise authorities is no bar to the maintainability of the petition. In Collector of Central Excise v. J.K. Synthetics Ltd., 1981 Excise Law Times 5, the Delhi High Court held that if the highest statutory authority had already pre-determined the question the alternative remedy by way of appeal and revision under the Central Excise Act was illusory. Therefore, there was not bar to the entertainment of writ petition under article 226 of the Constitution. In the instant case, it may be pointed out that an opinion has already been expressed by the Board regarding the raw material being put in the elevated storage tanks so far as manufacture of soda ash is concerned and the question of this type of storage tank has already been decided by the highest level so far as the hierarchy of departmental tribunals are concerned. In Bomin Private Limited v. Union of India, 1981 Excise Law Times 18, this High Court has decided that if the question relating to the interpretation of statutory provisions or exemption notification is involved, it would not be wise and expedient for the High Court to dismiss a writ petition in limine on the ground of alternative remedy under article 226 of the Constitution. In the instant case, the interpretation of the exemption notification, namely, notification No. 101/66, is very much involved and in view of this decision of the Gujarat High Court, it would not be wise and expedient for us to dismiss this petition in limine. Again, in Rice and Oil Mills Partnership firm Kandassan Kadayu v. Dy. Superintendent of Central Excise, 1981 Excise Law Time 59, a single Judge of Kerala High Court has held that a restriction which cannot be founded upon a law within the exception in article 19(6) must per se constitute an infringement of the fundamental rights guaranteed under article 19(1)(g) of the Constitution. Therefore, if the demand notice was violative of the rights of the petitioner and was outside the relevant provisions of the notification, the High Court was competent to interfere under article 226 of the Constitution notwithstanding the alternative remedy provided under the Central Excises Act. In Rama Krishna Wire Works, Surat v. P. T. Phowala. Assistant Collector of Central Excise, Surat, 1978 Excise Law Times 64, a Division Bench of this High Court consisting of J. B. Mehta and B. K. Mehta, JJ. held following the decision in Coffee Board's case (supra) that the existence of alternative remedy would hardly be material in a case where the demand is ultra vires the act. The threat to property by such ultra vires demand would clearly justify approaching the High Court and availing the extraordinary remedy at public law. In view of the decisions and in view of the observations of the Supreme Court, it is clear that existence of an alternative remedy is no bar to the maintainability or entertainability of this petition by the High Court and further, when the goods of the petitioners were seized on the ground that the petitioners were not entitled to the benefit of notification No. 101/66 and since broad facts of the case are not in dispute, it is neither wise nor advisable to send the petitioners away from this court in limine. Moreover, since the Board has already expressed its opinion in a matter of this kind, it is no use asking the petitioners to go through the gamut.
11. In order to appreciate the contentions arising in this case, it is necessary to refer to some of the legal provisions in this case. Under section 3 of the Central Excises and Salt Act, 1944, there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India and a duty on salt manufactured in, or imported by land into, any part of India, as, and at the rates set forth in the First Schedule. For the purposes of this Act, under section 2(f) the word 'manufacture' includes any process incidental or ancillary to the completion of a manufactured product. Under section 12 of this Act, the Central Government may by notification in the Official Gazetted declare that any of the provisions of the Customs Act, 1962 relating to the levy on and exemption from customs, duties, drawback of duty warehousing offences and penalties, confiscation and procedure relating to offences and appeals shall, with such notification modification and alteration as it may consider necessary or desirable to adopt them to the circumstances, be applicable in regard to like matters in respect of the duties imposed by section 3. A notification has already been issued and though the Sea Customs Act of 1878 has now been repealed and replaced by the Customs Act, by virtue of the General Clauses Act reference to Sea Customs Act of 1878 has to be read as reference to the Customs Act of 1962. By virtue of the relevant notification, provisions of the Sea Customs Act are applicable viz. section 12 of the Central Excises and Salt Act, 1944 and under section 110 of the Customs Act if the appropriate officer has reason to believe that such goods are liable to confiscation under the Act, he may seize such goods. By virtue of the provisions of rule 173(a)(1) excisable goods are liable to confiscation if excise duty is not paid in respect thereof. The relevant rule read thus :-
'If any manufacturer, producer or licencee of a warehouse removes any excisable goods in contravention of any of the provisions of these rules or does not account for any excisable goods manufactured, produced or stored by him, or engages in the manufacture, production or storage of any excisable goods without having applied for the licence required under section 6 of the Act, or contravenes any of the provisions of these rules with intent to evade payment of duty, then all such goods shall be liable to confiscation..........'
And since these goods would be liable to confiscation under rule 173(a) they would also be liable to seizure under section 110 of the Customs Act read with section 12 of the Central Excises Act, if the contention of the Excise authorities is correct. It may be pointed out that under rule 8 of the Central Excises Rules, power has been conferred on the Central Government to exempt by notification from time to time in the Official Gazette subject to such conditions as may be specified, any excisable goods from the whole or any part of duty leviable on such goods. It was in exercise of these powers under rule 8 that the notification which is under consideration in the present case was issued by the Central Government. A copy of that notification is at annexure 'A' to the petition and it says :-
'In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts the excisable goods specified in column (2) of the Table hereto annexed and falling under Item No. 15AA of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from the whole of duty of excise leviable thereon subject to the conditions laid down in the corresponding entries in column (3) of the said Table :'
And the condition as we have pointed out earlier is that 'in or in relation to the manufacture and packing of such surface active agents' no process is ordinarily carried on with the aid of power or of steam for hearing. Now so far as the question of interpretation of this notification is concerned, there is the decision of the Supreme Court in Union of India v. Delhi Cloth and General Mills, A.I.R. 1963 S.C. 791 = 1977 ELT (J 199). In that case the Supreme Court was concerned with the question whether a particular product was chargeable to excise duty under Items 12 and 13 of the First Schedule of the Central Excises Act. The manufacturer in that case was manufacturing hydrogenated oil known as Vanaspati and it was contended on behalf of the excise authorities that an excisable commodity known to the trade as refined oil had come into existence at the intermediate stage as on intermediate product and refined oil was liable to excise duty under article 12 of the First Schedule to the Act. Article 12 is as follows :-
'Vegetable non-essential oils, all sorts, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power.'
12. In the case before us also the same phraseology is used, namely, 'In or in relation to the manufacture and packing....no process is ordinarily carried on with the aid of power or of steam for hearing.' Hence what has been stated by the Supreme Court in the contest of item 12 is of great assistance to us in interpreting notification No. 101/66. In paragraph 18 at page 795, Das Gupta J. speaking for the Supreme Court pointed out :-
'This consideration of the meaning of the word 'goods' provides strong support for the view that 'manufacture' which is liable to excise duty under the Central Excises and Salt Act, 1944 must be the 'bringing into existence of a new substance known to the market'. But, says the learned counsel, look at the definition of 'manufacture' in the definition clause of the Act and you will find that 'manufacture' is defined thus :- ''Manufacture' includes any process incidental or ancillary to the completion of a manufactured product;' [S. 2(f)].
We are unable to agree with the learned counsel that the inserting this definition of the word 'manufacture' in S. 2(f) the legislature intended to equate 'processing' to 'manufacture' and intended to make mere 'processing' as distinct from 'manufacture' in the sense of bringing into existence of a new substance known to the market, liable to duty. The sole purpose of inserting this definition is to make it clear that at certain places in the Act the word 'manufacture' has been used to mean a process incidental to the manufacture of the article. Thus in the very item under which the excise duty is claimed in these cases, we find the words 'in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power.' The definition 'manufacture' in S. 2(f) puts it beyond any possibility of controversy that if power is used for any of the numerous processes that are required to turn the raw material into a finished article know to the market the clause will be applicable : and an argument that power is not used in the whole process of manufacture using the word in its ordinary sense, will not be available. It is only with this limited purpose that the legislature, in our opinion, inserted this definition of the word 'manufacture' in the definition section and not with a view to make the mere 'processing' of goods as liable to excise duty'.
13. Thus it is clear that there may be numerous processes required to turn the raw materials into a finished article known to the market. Therefore, coming down to the facts of the present case, numerous processes are required to turn Alkyd Benzene and Sulphuric Acid which are raw materials into the finished article, namely, the article which is known to the market and when the Legislature used the word 'processes' or 'in relation to which' etc. these words used by the Legislature have to be read in the light of what has been stated by the Supreme Court in paragraph 18 of the judgment. It may also be pointed out that in Delhi Cloth and General Mills' case (supra) it was contended before the Supreme Court by learned counsel appearing for the excise authorities that manufacture is complete as soon as by the application of one or more processes the raw material undergoes some change. This contention was negatived by the Supreme Court in the following words in paragraph 14 :-
'To say this is to equate 'processing' to 'manufacture' and for this we can find no warrant in law. The word 'manufacture' used as a verb is generally understood to mean as 'bringing into existence a new substance' and does not mean merely 'to produce some changes in a substance', however, minor in consequence the change may be. This distinction is well brought out in a passage thus quoted in Permanent Edition of Words and Phrases, Vol. 26, from an American Judgment. The passage runs thus :- ''Manufacture' implies a change, but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use.'
Thus it is clear that if the distinction between 'process' and 'manufacture' is to be maintained, it is by the bringing about some change in the raw materials and by making changes at different stages in the raw material that processes can be said to have been gone through and when ultimate new material is brought into existence, manufacture is complete but until a new product known to the market as such emerges, the intermediate steps for bringing about the change in the raw material from one stage to another, are all process, that is, intermediate steps taken for the conversion of raw materials into the manufactured article. It is the manufacture or production of the final article known to a trade as such which is liable to excise duty but until that article emerges, there are intermediate processes and those intermediate processes no doubt bring about some change and must bring about some change before it can amount to process and until the change starts, there may not even be the beginning of the process as one of the stages in manufacture. That position seems to be clear from these two passages from the decision of the Supreme Court. That, process means an operation which brings about some change in the raw materials, becomes clear from the subsequent decision of the Supreme Court in Chowgule & Co. Pvt. Ltd. v. Union of India, Civil Appeal No. 1032 of 1973 decided by the Supreme Court on November 25, 1980. There, C.J. Bhagwati, speaking for the Supreme Court in the context of sales tax law was dealing with the word 'process' and what is meant by the word 'processing' and quoting from the Deputy Commissioner of Sales Tax v. M/s. Pio Food Packers, 1980 Excise Law Times 343, an earlier decision of the Supreme Court, was pointed out.
'Commonly manufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that a manufacture can be said to take place. The test that is required to be applied is : does the processing of the original commodity bring into existence a commercially different and distinct commodity On an application of this test, it is clear that the blending of different qualities of re-processing differing chemical and physical composition so as to produce ore of the contractual specifications cannot be said to involve the process of manufacture, since the ore that is produced cannot be regarded as a commercially new and distinct commodity from the ore of different specifications be lended together. What is produced as a result of blending is commercially the same article, namely, ore, though with different specifications than the ore which is blended and hence it cannot be said that any process of manufacture is involved in blending of ore.'
Again, in the course of the same judgment, it was observed :-
'Wherever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity.'
The Supreme Court also observed :-
'What is necessary in order to characterise an operation as 'processing' is that the commodity must, as a result of the operation, experience some change.'
When the chemical and physical composition of each kind of ore which goes into the blending is changed, there can be no doubt that the operation of blending would amount to 'processing' of ore within the meaning of section 8(3)(b) of the Central Sales Tax Act and rule 13 which were for consideration before the Supreme Court in that case. While considering the question whether machinery, vehicles, barges and other items of goods purchased by the assessee for using at the mining site, conveying the ore from the mining site to the river side and carrying it by barges to the Marmagoa harbour, fell within the description of processing of ore within section 8(3)(b) and rule 13, it was held if any of these items of goods were purchased by the assessee as being intended for use as 'machinery, plant, equipment, tools, spare parts, stores, accessories, fuel or lubricants' in carrying the mined ore from the mining site to the river side and from river side to the Marmagoa harbour, they would qualify for inclusion in the certificate of Registration. Mr. Mehta appearing for the respondents has urged before us that this portion of the judgment of the Supreme Court in Chowgule & Co.'s case (supra) which deals with the question of transporting of iron ore from the mining site to the river side and from the river side to Marmagoa harbour where the goods were shipped would qualify for inclusion in the certificate of Registration, indicates that even transporting of goods, that is, iron ore, from one place to another would amount to processing to some extent because the requisite words 'goods intended for use in processing of ore for sale'. It must not be forgotten that in that particular case of Chowgule & Co. the Supreme Court came to the conclusion that blending of iron ore in the course of loading through mechanical ore-handling plant would amount to processing under section 8(3)(b) read with rule 13 which was before the Supreme Court and since transporting was for the purpose of processing through mechanical ore-handling plant, all those vehicles were also held to have been used for processing iron ore in the particular case.
14. However, in view of the clear indication given in the judgment as to what exactly is meant by the word 'processing' or 'process' as set out in the earlier passages extracted from the judgment in Chowgule & Co.'s case (supra), it is clear that before any activity can amount to processing, it must be found that the commodity has, as a result of the operation, experienced some change. If there is no change there cannot be said to be any process involved in that particular activity. So long as the material remains the same as before it cannot be said to have been subjected to any process because processing is one of the intermediate stages which brings about the final emergence of a new article known to the trade and various processes, namely, various activities which bring about change from stage to stage ultimately result in the emergence of a new article known to the market from the raw materials which are also articles known to the trade or the market.
15. Mr. Nanavati for the petitioners in support of his contention urged before us that in relation to several other commodities, for example, in relation to glassware, in relation to aerated water, in relation to furnace oil used in the process of manufacturer of glass, in relation to Rosin and Tupentine powder, the authorities and the Board of indirect taxes have taken decisions which would help the petitioners in the present case. We have not gone into those aspects of the case because, in our opinion, each notification and each decision of the Board turns upon the facts and process of manufacture of each particular commodity and analogy drawn from one decision of Board or one set of circumstances before the Board will not always apply to another set of circumstances or another process of manufacture which is before the Court today. Under these circumstances, we have not gone into the different trade notices and different processes of manufacture connected with aerated waters, Rosin and Tupentine Powder or the process of glass manufacture.
16. Mr. Nanavati also tried to argue that under notification No. 101/66, it was provided that excisable goods would be eligible for exemption only if 'no' process is ordinarily carried on with the aid of power'. He emphasized the word 'ordinarily' in support of his contention and urged that ordinarily, compressors, attached to the motor tankers are put in use for the purpose of transferring liquid alkyd benzene or sulphuric acid from the motor tanker to the storage tank in question. However, in our opinion, this contention must be rejected because the petitioners themselves have pointed out that some of the motor tankers have no compressors and on that account the electrically operated pump near the storage tank is used for the purpose of transferring the liquid in question from the motor tanker to the storage tank. Again, Mr. Nanavati conceded that on some occasions when the compressor attached to the motor tanker is out of use or cannot be used for some reason or the other, electrically operated pump near the storage tank is used for the purpose of transferring the liquid from the motor tanker to the storage tank. No figures have been placed before us to show as to in what percentage of cases electrically operated pump is required to be used for the purpose of transferring the liquid from the motor tanker to the storage tank. In ground (a) of paragraph 5 of the petition, the petitioners have stated that sometimes such tankers which bring sulphuric acid or alkyd benzene would be fitted with their own compressor to take the liquid to the storage tanks of the petitioners. Since the percentage of occasions on which electrically operated pump near the storage tank is required to transfer the liquid sulphuric acid or liquid alkyd benzene to the storage tank concerned is not given, it is not possible for us to say that no power is ordinarily used for the purpose of transferring liquid alkyd benzene or liquid sulphuric acid from the motor tanker to the storage tank.
17. It must be made clear that it is only at the stage of transferring liquid raw materials from the motor tanker to the storage tank that power is used and at no subsequent stage is any power used.
If no change is brought about in the raw material until it reaches the re-action vessel, then no process of manufacture can be said to have taken place until the raw materials are taken to the re-action vessel. Till then they are all preparations made but the raw materials continue to be the same raw materials. Until sulphuric acid and alkyd benzene start re-acting on each other, no change takes place in the raw materials. Merely because the goods are stored in one place, may be at an elevated place above the ground, it cannot be said that a process of manufacture which would convert the raw material by different stages into the final product has been undergone. In view of the decision in Chowgule & Co.'s case (supra) as to what is meant by processing, it is clear that unless and until some change takes place in the raw material of the original commodity, no process can be said to have been gone through. Before any operation can be characterised as a process, the commodity must, as a result of the operation, experience some change.
18. It is possible to envisage that in some cases or some manufacturing processes, gravitational force itself may bring about a change and may facilitate or accelerate the process of manufacture, but in the instant case, whatever argument there might be in that connection is negatived by the fact that the measurement tank intervenes between the storage tank and the re-action vessel and until the raw materials reach the re-action vessel, there is no process of manufacture because even from the measurement tank the raw materials can be taken out and still be treated as raw materials namely, alkyd benzene and sulphuric acid, as the case may be. Under these circumstances, prior to the raw materials entering the re-action vessel, there being no process as known to law, it cannot be said that in relation to the manufacture of detergent powder any process is carried on with the aid of power. The process begins only in the re-action vessel and till the stage of reaching that re-action vessel, no change having taken place in the raw materials no process has started as known in the language of the law. There is no specific definition of the word 'process' as there is of the word 'manufacture' in section 2(f) of the Act before us. Since process of processing is not defined, judicial definition or the dictionary meaning of the word has to be adopted and what has been done in field of taxation, namely, Central Sales Tax Act, where also the words 'process' and 'manufacture' occur, what has been said the Supreme Court in Chowgule Co.'s case (supra) would apply to the case before us.
19. It may be pointed out that in Deputy Commissioner of Sales Tax (Law) v. Pio Food Packers, 1980 Excise Law Times 343, the Supreme Court has considered as to what amounts to processing and it was pointed out that manufacture is the end result of one or more processes through which the original commodity made to pass although the entire processing may vary from one commodity to another or a series of changes take the commodity to the point where commercially it is recognised as a new and distinct article that a manufacture can be said to have taken place. In that case, Pathak, J. speaking for the Supreme Court observed in paragraph 4 as above. He further observed :-
'Where there is no essential difference in identify between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it has undergone a change of processing, it must be regarded as still retaining its original identity.'
20. As pointed out earlier, in Chowgule's case (supra) Bhagwati, J. speaking for the Supreme Court has relied upon the observations in Pio Food Packers' case (supra) for explaining the word 'processing' and as to what it exactly connotes. Under these circumstances, in the light of this decision of the Supreme Court, it is clear that in the instant case it cannot be said that power has been used in the manufacture of detergent powder which is an excisable commodity before us or that any process is ordinarily carried on in relation to the manufacture of this particular article ordinarily with the aid of power.
21. The decision of the Supreme Court in Commissioner of Income-tax v. Sri Ramkrishna Deo, A.I.R. 1959 S.C. 239 in paragraph 5 was relied upon by Mr. Mehta. The authority was cited for the proposition that it is for the person who claims exemption to establish it. There is no reason why it should be otherwise when exemption is in relation to Income-Tax Act. It is no doubt true that it is for the petitioners to show that they are entitled to exemption under the notification but if the facts relating to the manufacture of this particular article are not in dispute and the facts are all before us, then the Court can examine the question whether the article is entitled to exemption or not. There is no question so far as the facts of the present case are concerned of this burden of proof which is laid down as a proposition of law in Ramkrishna Deo's case (supra). Again, the decision in H.E.H. Nizam's Religious Endowment Trust, Hyderabad v. Commissioner of Income-tax, Andhra Pradesh, Hyderabad, A.I.R. 1966 S.C. 1007 was relied upon for the purpose of showing that when exemption is claimed under any particular taxation enactment, the burden of showing that exemption applies or that the particular assessee is entitled to exemption, is on that assessee. But so far as we are concerned, as pointed out above, bearing this principle in mind the question has to be examined whether on the facts which are broadly admitted, is the exemption notification applicable or not
22. Mr. Mehta for the respondents tried to draw a distinction between seizure of articles as such and adjudication. He urged in the alternative to his main contention that if at all it is found that seizure was bad because from January, 1980 till December, 1980 the excise authorities had allowed these goods to be manufactured without licence and to be cleared from the factory without payment of excise duty, no reasonable person could have been in a position to say that the goods were liable to confiscation and therefore though the act of seizure of the goods in the facts and circumstances of the case might be held to be bad, still the process of adjudication should be allowed to be gone through so that the excise authorities on the facts of this case may decide as to whether the exemption notification No. 101/66 was applicable to the case of the petitioners. In our opinion, this argument cannot avail the respondents because the main claim at the time of seizure and even in the affidavits filed on behalf of the respondents is that the goods are liable to excise duty and are not entitled to exemption and it is on the specific ground that the goods were seized because if the contention of respondent No. 4 were to be upheld, then the goods would become liable to confiscation and hence liable to seizure. Once the notification is before us and the broad facts of the case are not in dispute, it is obvious that the question whether the goods are exempted from excise duty or not can be examined by the Court without driving the parties to the gamut of departmental tribunal of adjudication process. In this case it is particularly so because the view of the Board is known and in view of the known opinion of the Board as shown by the affidavit of 4th August, 1981 filed by the fourth respondent, the scope for adjudication process is very little in the facts and circumstances of this case.
23. Some controversy had taken place before us as to the exact connotation of the phrase 'in relation to' but since we are interpreting the word 'process' in the way we have done, it is not necessary for us to consider that aspect of the controversy.
24. Under these circumstances, we allow this special civil application and hold that detergent powder manufactured by the petitioners is not liable to excise duty as it is covered by notification No. 101/66. Since there is total exemption from excise duty, notification No. 111/78 which exempts manufacturing units that produce goods totally exempt from excise duty from licencing procedures also would be applicable to the petitioners and they would not be liable to take out a licence for manufacturing this particular article.
25. We are informed that notification No. 111/78 is replaced by notification No. 2/81 though to the same effect.
26. The seizure made by the respondents under the Panchnamas annexed at annexure 'B' to the petition is also quashed and set aside. By way of interim orders, on furnishing bank guarantee the petitioners were allowed to remove the goods and the goods were released from the seizure. Bank guarantee to be returned back to the petitioners. The respondents to pay costs, charges and expenses incurred by the petitioners in connection with the bank guarantee.
27. In view of the fact that this point has come to be decided for the first time before this court, there will be no order as to costs so far as this special civil application is concerned.
28. Mr. Mehta applies under article 133(1) for leave to appeal to the Supreme Court. Since all that we have done in this case is to apply the principles laid down by the Supreme Court and applied the interpretation of the Supreme Court to the word 'process' it cannot be said that this question, though it may be a substantial question of law of general importance, is needed to be decided by the Supreme Court. Hence the oral application is rejected.
29. However, the operation of this judgment is stayed for a period of six weeks from the date the certified copy is made available, to the respondents. Mr. Mehta says that application for certified copy will be made in the course of August 10, 1981.