P.K. Banerjee, C.J.
1. This rule is obtained by the petitioner challenging the imposition of excise duty on the skelp purchased by the petitioner from Tata Iron and Steel Company Ltd., who is respondent No. 4 in this writ application. The allegation made in this writ petition is that the petitioner is a private limited company registered under the Companies Act and manufacturing box strappings and C.R.C.A. strips and the petitioner-company has to purchase raw material in the form of iron and steel product known as skelp from primary producers and manufacturers of iron and steel, namely, Tata Iron and Steel Company Limited, Jamshedpur, amongst other producers and also from the open market. We are concerned with the purchase of skelp from Tata Iron and Steel Company Ltd. at the material time. The iron and steel products at the material times were included in Item No. 26AA of First Schedule to the Central Excises and Salt Act, 1944. The question whether the iron and steel product supplied by respondent No. 4 to the petitioner-company is skelp or H.R. strips, was in dispute before the High Court at Delhi in Writ Petition No. 1678 of 1967 and it was held, inter alia, that the primary material is to be purchased from the producers on the recommendations of the Joint Plant Committee, which is a Government of India undertaking established in 1964. The Joint Plant Committee used to fix the rates prescribed for the purposes of supply of the materials to the petitioner-company. The price fixed by the Joint Plant Committee was the excise duty (sic) and that cornes to Rs. 1,335, of which Rs. 487.50 is the excise duty as on 4th March, 1973, as announced by the Joint Plant Committee, vide Announcement No. 101. The High Court of Delhi was pleased to dispose of the matter, whereupon the matter went to the Honourable Supreme Court and the judgment by the Supreme Court delivered and reported in Union of India v. Tata Iron and Steel Co. Ltd. AIR 1975 SC 769 has already decided the matter fully.
2. Mr. Gupta, learned counsel for the petitioner, has stated and does not dispute that he is to pay in view of the judgment of the Honourable Supreme Court, Rs. 487.50 as excise duty for cold rolled strips. Now the question is that the petitioner having paid Rs. 487.50 for the primary material to the Tata Iron and Steel Company Ltd. as is evident from the receipts granted by the Tata Iron and Steel, how much more the petitioner is to pay as the duty.
3. Mr. Gupta on behalf of the respondent, excise authorities, contended that the petitioner has only paid Rs. 81 under the orders of this Court while issuing stay order and should now pay the. difference between 568.71 - Rs. 81 per ton in respect of the primary material purchased from the Tata. It will be open for the petitioner-company, however contended by Mr. Gupta, to get the balance amount from Tata Iron and Steel Company Ltd., if it so likes. It is further contended by Mr. Gupta that, from the receipt itself it appears that only Rs. 393.75 per M.T. was sub judice and the duty was paid at that rate. In my opinion, however, in view of the Joint Plant Committee's letter, Annexure-A, it is quite clear that Rs. 1,335 included Rs. 487.50 as excise duty and is realised by the Tata Iron and Steel Company Ltd. and without the payment of the excise duty, it was not possible for the petitioner to purchase tested category of skelp in view of the announcement made by the Joint Plant Committee on 4th March, 1973. In that view of the matter, in my opinion, the petitioner at the present moment in view of the payment made by him under the orders of this Court, Rs. 81.25 per metric tonne being paid nothing is due to the excise department. The Supreme Court in the case reported in Union of India v. Tata Iron and Steel Co. Ltd., AIR 1975 SC 769, held inter alia that the best way is to define the product for the purpose of excise duty in appropriate terms demarcating clearly the distinction between the two terms, skelp and strips. It was found by the Honourable Supreme Court, after the Tata Iron and Steel Co. won before the Delhi High Court, on an appeal by the Union of India that the absence of any identifiable standard would, therefore, naturally give rise to the scope for arbitrary assessment at the hands of different authorities. Since the duties on strip and skelp are not the same, it is absolutely necessary to define the word skelp so that there can be no doubt in the mind either of the taxing authority or of the taxpayer with regard to the tax liability qua skelp as opposed to strip. These were the only points argued before the Supreme Court and the Union of India lost the appeal and the judgment of the Delhi High Court was upheld.
4. Mr. Gupta, on behalf of the respondent, however, contended that it will be difficult for them to get the excise duty realised by Tata Iron and Steel Company Ltd., but the petitioner may file a civil suit against Tata Iron and Steel Company to get back the excise duty already paid and pay the same to the Union of India. This is in my opinion, is not a fair argument, which should be accepted. It is for the Union of India and the Union of India alone to get the money from Tata Iron and Steel Company Ltd., which is quite evident, has accepted the money as excise duty and that was the price fixed by the Joint Plant Committee and without which the material could not have been sold to the petitioner.
5. In the circumstances, therefore, the rule is made absolute to the extent indicated above. There will be no order as to costs.