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Jalal Plastic Industries and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtGujarat High Court
Decided On
Case NumberS.C.A. Nos. 1477 and 3343 of 1980
Judge
Reported in1981(8)ELT653(Guj); (1980)2GLR563
ActsCentral Excises Act, 1944
AppellantJalal Plastic Industries and ors.
RespondentUnion of India and ors.
Appellant Advocate I.M. Nanavaty and; Rakesh Gupta, Advs.
Respondent Advocate H.M. Mehta, Adv.
Excerpt:
excise - classification - central excise and salt act, 1944 - whether plastic bangles manufactured out of regenerated monomer which manufacturers purchased from market are not liable to payment of excise duty under tariff item 15a of schedule i to act of 1944 - plastic means artificial or synthetic resins and plastic materials and cellulose esters - plastic bangles are articles made by plastic within meaning of expression used in sub-item (2) of tariff item 15a - plastic bangles manufactured by petitioners out of monomer subjected to polymerisation process in course of manufacturing - bangles do not attract excise duty under tariff item 15a. - .....and salt act, 1944 (hereinafter referred to as 'the act'), but that they fell under residuary item, tariff item 68. the petitioners were not paying excise duty on them under tariff item 68, because they were small manufacturers and were, therefore, exempted from payment. 3. on april 11, 1980 the central government issued a circular to all central excise collectorates in which they stated that if the manufacturers of plastic bangles themselves manufacture regenerated monomer, they should be exempted from payment of excise duty under tariff item 15a by virtue of the notification issued on may 29, 1971. however, if they purchase regenerated monomer from others and manufacture bangles out of them, exemption would not be available to them. 4. it is the impact of this notification which.....
Judgment:

S.H. Sheth, J.

1. The petitioners in both these petitions are manufacturers of plastic bangles. It is not in dispute that plastic bangles are manufactured out of monomer which is technically called methyl methacrylate monomer. It is hereinafter referred to as 'the monomer'. Monomer is of two kinds. It may be virgin monomer if it may be regenerated monomer. Regenerated monomer is produced out of plastic scraps. It is the case of the petitioners that regenerated monomer is either purchased from indigenous manufacturers or it is imported. In some cases, the manufacturers of plastic bangles themselves manufacture it.

2. Until the present dispute arose, the Central Excise authorities had been taking the view that bangles manufactured out of regenerated monomer were not liable to payment of the excise duty under Tariff Item 15A in the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as 'the Act'), but that they fell under residuary item, Tariff Item 68. The petitioners were not paying excise duty on them under Tariff Item 68, because they were small manufacturers and were, therefore, exempted from payment.

3. On April 11, 1980 the Central Government issued a circular to all Central Excise Collectorates in which they stated that if the manufacturers of plastic bangles themselves manufacture regenerated monomer, they should be exempted from payment of excise duty under tariff item 15A by virtue of the notification issued on May 29, 1971. However, if they purchase regenerated monomer from others and manufacture bangles out of them, exemption would not be available to them.

4. It is the impact of this notification which is challenged in these two petitions. Mr. Nanavaty who appears on behalf of the petitioners has raised before us only two contentions. They are as follows :-

(1) Plastic bangles manufactured out of regenerated monomer which the manufacturers purchase from the market are not liable to payment of excise duty under tariff item 15A;

(2) If tariff item 15A is attracted to plastic bangles, the petitioners are entitled to exemption under notification dated May 29, 1971.

5. The principal question which has arisen before us relates to the construction of tariff item 15A. It deals with plastic. Plastic has been amplified to mean 'artificial or synthetic resins and plastic materials and cellulose esters and others, and articles thereof'. The case which has been pleaded by the Central Excise authorities is that plastic bangles are 'articles made of plastic' within the meaning of that expression used in sub-item (2) of tariff item 15A. In order to appreciate the contention which Mr. Nanavaty has raised, it is necessary to reproduce sub-item (2) of tariff item 15A. It reads as follows :-

'(2) Articles made of plastics, all sorts, including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not and whether rigid or flexible, including layflat tubings, and polyvinyl chloride sheets, not otherwise specified.'

6. In order to render plastic bangles liable to payment of excise duty, they must satisfy the requirements of the expression 'articles made of plastics'. Sub-item (2) of item 15A is very comprehensive because it uses the expression 'all sorts' and then illustrates which items included amongst articles made of plastics. We say that several articles of plastics enumerated in sub-item (2) are merely illustrative because the expression which has been used in sub-item (2) is 'including tubes.....'. It is this inclusive character which renders the list of plastic articles illustrative. We say that it is very comprehensive because the expression 'all sorts' which goes with the word 'articles' brings within its sweep each and every article made of plastic. There is no doubt or dispute about the fact that plastic bangles are plastic articles. However, the question which we have to answer is whether they are made of plastics The words 'made of' suggest, in our opinion, the raw material out of which they are made. Bearing this in mind we now turn to Explanation I which defines expression 'plastics' used in sub-item (2) of tariff item 15A. It reads as follows :-

'Explanation I. :- For the purpose of sub-item (2), 'plastics' means the various artificial or synthetic resins or plastic materials or cellulose esters and ethers included in sub-item (1).'

This explanation takes us to sub-item (1). It is necessary to bear in mind that it is undisputed that plastic bangles themselves are plastics. It is also undisputed that monomer out of which they are made is not plastic. In the affidavit in reply filed in Special Civil Application No. 1477 of 1980, this is what has been stated by Mr. D. N. Anerao, Assistant Collector of Central Excise, Ahmedabad in paragraph (10).

'I say that in the process of production of plastic tubes and bangles, monomer is to be polymerised into a plastic material out of which plastic tubes and bangles are produced. The articles in question are thus articles of plastic and covered T.I. 15A.'

This averment makes it clear beyond all doubts that monomer is not a plastic material and that it becomes a plastic material when it is polymerised. Therefore there is no dispute about two ends. Monomer out of which plastic bangles are made is not plastic; it is anything but plastic. Plastic bangles are nothing but plastics. Now, the extract from the affidavit-in-reply of Mr. D. N. Anerao, which we have quoted shows that the monomer which is not plastic undergoes in the process of manufacture transformation and becomes polymerised. This polymerisation process turns it into plastic out of which plastic bangles are manufactured.

7. Upon this data in respect of which there is no dispute, can we say that plastic bangles are articles made of plastic within the meaning of sub-item (2) of tariff item 15A Whereas Mr. Nanavaty has contended before us that we cannot read sub-item (2) of tariff item 15A in isolation and that it must be read in light of Explanation I, has been contended by Mr. Mehta on behalf of Central Excise authorities that we must look to the immediate material out of which bangles are manufactured. Expanding his arguments further Mr. Nanavati has submitted that by virtue of Explanation I to tariff item 15A, we must look to sub-item (1). Both the learned Advocates have tried to analyse before us the scheme of sub-item (1) of tariff item 15A. According to both of them whereas clause (i) in sub-item (1) enumerates artificial or synthetic resins, clause (ii) enumerates plastic materials and clause (iii) enumerates cellulose acetate (including cellulose diacetate or cellulose triacetate). Both the learned Advocates have, therefore, asked us to confine our attention to clause (ii) of sub-item (1) of tariff item 15A which enumerates plastic materials. It reads as follows :-

'(ii) Polymerisation and co-polymerisation products such as Polyethylene, Polytetrahaloethylenes, Polyisobutylene Polystyrene, Polyvinyl chloride, Polyvinyl acetate, Polyvinyl Chloroacetate and other Polyvinyl derivatives, Polyacrylic and Polymethacrylic derivatives and coumarone Indene Resins.'

It appears to us that the expression 'such as' used in clause (ii) merely illustrates Polymerisation and co-polymerisation products. The enumeration, in our opinion, of the products which follows the expression 'such as' is therefore not exhaustive.

8. Mr. Nanavaty has argued that since undisputably monomer is not plastic, it can never be said to be polymerisation or co-polymerisation product. Therefore, according to Mr. Nanavaty since the expression articles made of plastics used in sub-item (2) of tariff item 15A suggests that the product ought to have been made out of raw material which is not plastic, plastic bangles do not attract excise duty under tariff item 15A. Mr. Mehta on the other hand has argued that even if we read sub-item (2) with Explanation I and bear in mind specifications given in clause (ii) or sub-item (1) of tariff item 15A, no difference is made by virtue of the fact that monomer is not a plastic material. According to him the expression 'articles made of plastics' means an article which consists of plastics and not an article for the manufacture or production of which plastic material has been used. If we take the view that the expression 'articles made of plastic' means an article made out of a raw material which is not a plastic, then the contention raised by Mr. Nanavaty must be upheld. If, however, we take the view that the said expression means an article which consists of plastic material itself, irrespective of the stage of which that plastic material came into being whether upon transformation of monomer in course of manufacturing process of otherwise, then the argument advanced by Mr. Mehta must be upheld.

9. Having carefully scanned sub-item (2) of tariff item 15A in light of Explanation I read with sub-item (1) of tariff Item 15A, we are of the opinion that the expression 'articles made of plastics' means articles for the manufacture of which plastic material has been used as a raw material. It does not suggest, in our opinion, a non-plastic raw material which has undergone polymerisation process in course of manufacturing process.

10. Since indisputably monomer is not a plastic material and since the petitioners have been manufacturing plastic bangles out of monomer by subjecting it to a polymerisation process, they are not liable to pay excise duty on the bangles manufactured by them under tariff item 15A.

11. Therefore, plastic bangles manufactured by the petitioners out of monomer which has been subjected to the polymerisation process in course of manufacturing bangles, do not attract excise duty under tariff item 15A. In this view of the matter, it is not necessary for us to answer the second contention raised by Mr. Nanavaty.

12. In this context we may make a brief reference to two decisions. Unfortunately, copies of those judgments have not been produced before us. One judgment is in Miscellaneous petitioner No. 591 of 1964 decided by Tulzapurkar, J. (High Court of Bombay) on April 30, 1970, and another judgment is in Civil Writ No. 115-D of 1963 decided by Rajendra Sacher, J. (High Court of Delhi) on August 18, 1970. A reference is made to these two decisions in the Law of Central Excise by Taraporevala and Parikh shows that Polymer chips produced at an intermediate stage in the continuous and integrated process of manufacturing nylon yarn did not fall within tariff item 15A because they were not commercially known as plastics or resins.

13. In the result, we allow both the petitions and quash the impugned orders and notices. Rule is made absolute with costs in each of the two petitions.

14. Mr. H. M. Mehta applies for a certificate of fitness under article 133(1) of the Constitution to enable the respondents to appeal against this decision to the Supreme Court. We have interpreted Tariff Item 15A(2) read with Explanation I for the first time. There is no decision of the Supreme Court which governs the field. The question which we have decided is a question of all India importance. We, therefore, think that this is a fit case for the Supreme Court to decide. Accordingly, we grant the certificate of fitness under article 133(1) of the Constitution to the respondents in each of the two petitions in order to enable them to appeal against this decision to the Supreme Court.


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