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TMI Blog1987 (3) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ petitioner viz. R.K. Chemical Industries (P) Ltd. who are Respondents in the appeal and will hereafter be referred to as the said Respondents. 2. The said Respondents, who obtained the concerned Civil Rule and from the determinations whereof this appeal has been presented on 19th September 1984, has claimed to be a Company incorporated under the Companies Act, 1956 and has also stated to have their registered office at 141/1, Radhabazar St., Calcutta-700001 and their factory at 24, Misrupara Road, P.O. Rajpur, District 24 Parganas, apart from indicating that they were and are engaged in carrying on the business of manufacture of 'starch' falling under Tariff Item No. 15C and Gum powder amongst others, falling under Tariff Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944. The Act in question, will hereafter be referred to as the said Act and the First Schedule as the said Schedule. 3. It has also been stated by the said Respondents that for the purpose of manufacturing excisable goods they obtained Central Excise License being L-4 No. l/Starch/76, dated 2nd August 1976 and also complied with all the provisions of the said Act and the Rules frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upto an aggregate value of clearance not exceeding Rs. 5 lakhs from whole, of the duty of excise leviable thereon. We feel that for the convenience of determinations and understanding, the notifications as referred to hereinbefore, should be indicated and we do that in seriatim. Notification No. 71/78-C.E., dated 1.3.1978. In exercise of the powers conferred by sub-rule (i)of rule 8 of 'the Central Excise Rules, 1944. The Central Government hereby excepts the excisable goods of the description specified in Column (3) of the Table hereto annexed (hereinafter referred to as the 'specified goods', and falling under such Item number of the First Schedule to the Central Excises and Salt Act, 1944(1 of 1944) as is specified in the corresponding entry in column (2) of the said Table, in respect of the first clearance of such excisable goods for home consumption upon an aggregate value not exceeding Rs. 5 lakhs and cleared on or after the 1st day of April, in any financial year by or on behalf of a manufacturer, from one or more factories, from the whole of the duty of excise leviable thereon, subject to the following conditions namely:- (a) the exemption contained in this notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance (being clearance of the specified goods of an aggregate value not exceeding rupees ten lakhs) immediately following the said first clearance of the value specified in clause (a), from so much of the duty of excise leviable thereon under the said item read with any relevant notification issued under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 and in force for the time being as is in excess of seventy five per cent of such duty. 2. Nothing contained in this notification shall apply to a manufacturer. i) if the aggregate value of clearances of the specified goods if any, by him or on his behalf, for home consumption from one or more factories, during the preceding financial year had exceeded rupees fifteen lakhs. ii) who manufacturing excisable goods falling under more than one item number of the said First Schedule and the aggregate value of clearance of all excisable goods by him or on -his behalf for home consumption, from one or more factories during the preceding financial year had exceeded rupees twenty lakhs. Notification No 50/81-C.E., dated 1-3-1981. In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid Schedule, were entitled to exemption in terms of clause 2(ii) of the said Notification No. 80/80-C.E. 7. Such and above being the position, the said Respondents on 10th March 1981, represented to the Assistant Collector of Central Excise, Calcutta III Division, claiming exemption. Such claim under or in terms of clause 2(ii) of Notification No. 80/80-C.E. was made as the manufacture of their excisable goods extended to more than one item of the said Schedule and furthermore, as the aggregate value of their clearance of all the excisable goods during the preceding financial year, did not exceed Rs. 20 Lakhs. It has been stated that in reply, the Superintendent of Central Excise concerned, by his letter, dated 30th March 1981, informed that the said Respondents were not entitled to the exemption as claimed, as the value of their clearances of the specified goods under Tariff Item No. 15C, exceeded Rs. 15 lakhs during the preceding financial year 1980-81. As the said Respondents were not satisfied with the reply, they on 10th April 1981, invited the attention of the Assistant Collector of Central Excise concerned after referring to the Notification No. 50/81-C.E. which maintaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial year up to an aggregate clearance value of Rs. 15 lakhs for the 'specified goods' and enlarged the clearance value to Rs. 20 lakhs in the case of manufacture of more than one excisable goods, falling under more than one Tariff Item of the said Schedule and such amended criterion has further been repeated in the subsequent Notification Nos. 80/80-C.E. and 50/80-C.E. It was categorically claimed by the said Respondents that they having manufactured in 1980-81, more than one item of the excisable goods as specified in the said Schedule and aggregate clearance also thereof, having not exceeding Rs. 20 lakhs the benefit of exemption as mentioned hereinbefore, was available to them and by denying such benefit to them and more particularly that of Notification No. 80/80-C.E. as amended by Notification No. 80/81-C.E. and by compelling the said Respondents to pay excise duty on all day to day clearances since 1st April 1981, the authorities concerned and each one of them had acted arbitrarily, illegally and without jurisdiction and authority. 10. Before the Learned Trial Judge, on the basis of the above pleadings, the said Respondents claimed and contended that in terms of Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for home consumption of starch and gum powder were only of Rs. 17-1/2 lakhs, therefore, they will be exempt from payment of duty and that unless an alternative remedy can give full and effective relief to the aggrieved party, it will not stand in the way of petitioner in moving the High Court under Article 226 of the Constitution, apart from holding that if the petitioner has established his case on merits, the writ petition cannot be dismissed on the ground of availability of alternative remedy. 12. So far as the question of alternative remedy was concerned, Mr. Bhattacharjee, appearing in support of the appeal, had not put forward any argument. He only advanced his submissions on the question of the notifications and the interpretations thereof. In fact, he submitted that the learned Judge, while making the determination, was wrong in proceeding on the basis that goods covered by the notifications in question, should be of two different kinds viz 'excisable goods' and 'specified goods'. It was contended, that while making the determinations, the learned Judge really failed to appreciate the true scope and ambit of Notification No. 80/80-C.E. under which the said Respondents ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods exceeds Rs. 20 lakhs and such, not having being the finding of the learned Judge, there was error apparent in the decision, for which the same was vitiated. Mr. Bhattacharjee also claimed and contended that in view of the above, the directions to release or refund the amount of Rs. 1,35,185/- as paid by the Respondents on account of excise duty towards the manufacture of 'starch' was erroneous and the same was made on wrong appreciation of fact and law and it was submitted, that in any event, the learned Court below proceeded erroneously in its views of held such views that the goods covered by the notification in question, should be of two different kinds viz 'excisable goods' and 'specified goods', on wrong premises. 13. To supplement and for supplanting his submissions as above, Mr. Bhattacharjee pointed out that the said Respondents are manufacturers of 'starch' which is mentioned in the Tariff Item No. 15C of the said Schedule and 'starch' according to the said item of the Schedule would mean to include detrin and other form of Modified Starch all sorts, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power. He point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification in the matter of granting exemption. It was also contended by Mr. Banerjee that the aggregate value of manufacture of 'starch' and 'gum powder' as manufactured by the said Respondents was Rs. 17-1/2 lakhs i.e. below Rs. 20 lakhs and both being 'excisable goods' the exemption as asked for, should have been granted to them as a matter of course. It was also contended and claimed that in accordance with the express provisions of the Notification No. 80/80 C.E. read with the Notification No. 50/81 C.E., he said Respondents were entitled to the exemption as mentioned therein, since their aggregate value of the clearance of the excisable goods manufactured was Rs. 17-1/2 lakhs i.e. below Rs. 20 lakhs and more particularly when, the authorities concerned had accepted such claim of manufacture of goods to the tune of Rs. 17-1/2 lakhs. It was also contended by Mr. Banerjee that the case of the said Respondents should come and must be considered under or in terms of the clause as mentioned hereinbefore and which exempts the manufacturer of more than one item of 'excisable goods' and declares such manufacturer, as eligible for exemption up to the value of Rs. 20 lakhs. We have indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has finally concluded that if the manufacture in respect of more than one item of which one is specified but the other is not and nonetheless excisable the total amount of exemption available would be Rs. 20 lakhs, because 'specific goods' do not cease to be 'excisable', for which the exemption limit is fixed at Rs. 20 lakhs. We have also considered the submissions and the effect of the notifications and are of the same view with the learned Judge and we also feel, that if such interpretation as has been given by him, is not accepted, the classifications as contained in clauses 1 and 2 will lose its purpose and meaning. 16. There is no doubt that in item 15C of the said Schedule, all sorts of 'starch', excluding the other materials as have been indicated herein before, have been included and goods were specified in terms of Notification No. 71/78 C.E., as issued in terms of or in exercise of the powers" conferred by Rule 8(1) of the said Rules and the Government of India have also granted some exemptions under certain conditions, to a number of 'excisable goods' of the descriptions as given in column (3) of the Table as annexed thereto and falling under the concerned item of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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