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TMI Blog1975 (11) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... ever used for the purpose of painting, colouring or dyeing. The petitioners in Special Civil Application No. 97 of 1972 have also come out with the same case. As observed above, the plaintiffs in Civil Suit No. 75 of 1972 were paying duty on the above product and they raised the dispute on the point only after the decision the City Civil Court in Civil Suit No. 271 of 1968. It is not disputed that so far as the plaintiffs in Civil Suit No. 271 of 1968 are concerned, the excise authorities called upon it to pay the duty on the above product only on the basis of the report of the chemical analyser in respect of its product. It appears from the written statement filed by the defendants in Civil Suit No. 75 of 1972 that the decision to levy duty on ultramarine blue manufactured by the plaintiffs, hereinafter referred to as M/s. Sindhu Chemical Products was made on the basis of the report of analysis of the product made by the Deputy Chief Chemist, Bombay, who came to the conclusion that the product in question was inorganic pigment in the form of powder. In view of what is stated above, it becomes evident that in both the aforesaid cases, the decision of the defendants to charge duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of the question of jurisdiction of the court depends, to a considerable extent, on the decision on the second question, we would first deal with the latter. 10. It is submitted by Mr. Nanavati, learned Assistant Govt. Pleader who appears for the Union of India and Central Excise authorities in two of the above matters that ultramarine blue is a pigment within the meaning of the words of Item No. 14 (1) (5) of the First Schedule to the Act. **** According to Mr. Nanavati, Ultramarine Blue falls within sub-item (5) of Item No. 14 (1) and the learned Judge of the City Civil Court was not justified in taking a contrary view on the point Mr Sorabji, learned Counsel for the respondent M/s. C.M.C. India vehmently argues that the test adopted by the excise authorities for the purpose of deciding the question whether Ultramarine Blue is chargeable with duty under Item No. 14 (1) (5) is not according to law and that it is for the authorities concerned to prove that the product in question is chargeable with duty under the above item. At this stage, we may make it clear that Mr. H.B. Shah, learned advocate for M/s. Sindhu Chemical Products has adopted the arguments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igment, it is not known as such and in the business community or by persons who are dealing with it. On the basis of his evidence, it cannot be said that Ultramarine Blue is a colour in the strict sense of the term. He further admits that in the market, the substance in question is known as ultramarine blue. When the evidence discussed above is considered togother, it becomes evident that the product in question is known only as Ultramarine Blue in the Market and that even the excise authorities started treating it as a pigment only after it was analysed at the Customs Laboratory in the year 1963. The defendant have not adduced any evidence to show that ultramarine blue which, it is not disputed, is manufactured in other part of the country also, in charged with duty under Item 14 (1) (5) of the First Schedule. Under these circumstances, it can be reasonably inferred that the customs authorities thought of levying duty on Ultramarine Blue for the first time on the basis of the report of the chemical examiner. 15. The evidence adduced by the parties in special civil suit No. 75 of 1972 also leads to the above conclusion. The evidence adduced by the plaintiffs in the above case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. He also says that the product is known as Ultramarine Blue. Apart from saying that ex. 48 is published by the Indian Standard Institution, he has not stated anything about the binding nature of the contents of the booklet. The defendants have not examined any one from the said Institution in order to explain the purpose for which the above booklet is published and as to what extent, the manufactuers are expected to follow various directions given in the booklet. It should further be remembered that even according to the booklet, the material is commercially known as Ultramarine Blue . Attention of none of the witnesses for the plaintiffs was drawn to the above booklet. This shows that the plaintiffs had no opportunity to explain any of the points in connection with the booklet. Considering all these circumstances, it would not be proper to hold merely on the basis of the booklet ex. 48 that to the knowledge of the manufacturers, Ultramarine Blue was a pigment or ultramarine pigment as stated in the booklet. According to Mr. Mehta the letters 'I.S.I.' on the packet of the product are the abbreviations of the term 'Indian Standards Institution', but no such sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations of the Supreme Court in the case of South Bihar Sugar Mills (supra) - It is also not correct to say that because the sugar manufacturer wants carbon dioxide for carbonation purpose and sets up a kiln for it that he produces carbon dioxide and not kiln gas. In fact what he produces is a mixture known both to trade and science as kiln gas, one of the constituents of which is, no doubt, carbon dioxide. This Court finally observed- The kiln gas in question therefore is neither carbon dioxide nor compressed carbon dioxide known as such to the commercial community and therefore, cannot attract Item 14H in the First Schedule. 18. It is, however, submitted by Mr. Mehta, learned Advocate for the defendants in civil suit No. 75 of 1972 (first appeal No. 970 of 1973) that the goods referred to in Item No. 14 of Schedule I to the Act are ordinarily used or dealt with by the persons who know the technical terminology of those goods and hence, while construing Item No. 14, the technical terms in which various items have been described should be taken into consideration. The defendants have, however, not adduced any evidence to show that various articles referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the product manufactured by M/s. C.M.C. India is concerned, the Deputy Superintendent of Central Excise, by his letter dated 15th November 1963 vice ex. 51 informed the manufacturers that they were liable to pay duty on Ultramarine Rule. After some correspondence between the Deputy Superintendent and M/s. C.M.C. India, the Matter was referred to the Assistant Collector of Central Excise, Ahmedabad. He also informed the plaintiffs in reply to their letter that in view of the analysis of the product, it was chargeable with duty. M/s. Sindhu Chemical Products who are the plaintiffs in civil suit No. 75 of 1972 approached the Central Excise authorities only after the decision in civil suit No. 271 of 1968. As the Deputy Superintendent of Central Excise, Rajkot insisted that they were liable to pay duty for their product, they filed the above suit. The petitioners M/s. Nisin Industries by their letter, dated 11th October, 1971 requested respondents Nos. 2 and 3, the Assistant Collector and Superintendent, Central Excise, Ahmedabad respectively that they should desist from collecting any excise duly in respect of their product Ultramarine Blue. As their request was turned down, they f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Madhya Pradesh, (1968) 3 SCR 662=(AIR 1969 SC 78), in which after an exhaustive discussion of the case law, the legal position was summarised by the court speaking through Hidayatullah C.J. as follows :- (1) Where the statute gives a finality to the orders of the special tribunal the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude these cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the Scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive in the latter case. It is necessary to see if the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already stand supported by the decisions of the Supreme Court and other Courts referred to earlier, we do not think it necessary to refer to any specific observations in the case of M/s Jyoti Limited, in which also the above authorities have been followed. It supports the view that we have taken on the point. 33. As observed above, the decision of the Central Excise authorities to levy duty on the products in question are void and hence, in view of the decisions of the Supreme Court and other courts referred to above, it was not at all necessary for the manufacturers to take recourse to departmental appeals or applications in revision, as the case my be and the civil court has jurisdiction to the suits and this court to hear the writ petition. 34 to 36 **** 37. In the result, appeal No. 970 of 1973 is allowed. The decree of the trial court in civil suit No. 75 of 1972 is set aside. The suit is decreed and it is declared that the plaintiffs product Ultramarine Blue is not chargeable with duty under Item No. 14 I (5) of the First Schedule to the Act. The defendants are restrained from recovering any duty from the plaintiffs in respect of the above product on the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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