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TMI Blog1989 (1) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendants to refund the disputed amount of Rs. 41,79,141.68 of Excise Duty levied which has been collected from the plaintiff along with interest at the rate of 6 per cent per annum from the date of the institution of the suit till date of realisation. (iii) A decree quashing the aforesaid orders passed (a) by the Assistant Collector of Central Excise, Jamshedpur; (b) by the Collector for Central Excise, Patna and (c) by the Government of India in the Ministry of Finance. (iv) A direction cancelling the debit made in the current account of the plaintiff in respect of duty levied on steel ingot produced out of old steel skull scraps. (v) A decree for the costs of the suit may also be passed against the defendants with future interest. (vi) Such other reliefs as may appear fit and proper. 2. First Appeal No. 14 of 1979 (R) arises out of a judgment and decree dated llth September, 1978 passed by Shree Ram Chandra Prasad, Second Additional Subordinate Judge, Jamshedpur, in Money Suit No. 62/2 of 1966/1976. In the said suit, the plaintiff-appellant prayed for following reliefs:- (i) A declaration that the Central Excise and Salt Act, 1944 and the Rules thereunder ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 5. It is further the case of the plaintiff that it employed Messrs Hecket Engineering Company, a company of United States of America for recovery of iron and steel scraps by their patented processes for remE.L.T.ing the same into iron and steel ingots out of the scraps in the said dump as well as fresh scraps obtaining as a result of the process of manufacturing day after day. The said Messrs Hecket Engineering Company allegedly by their processes made old scraps available to the plaintiff for remelting on receipt of processing charges agreed to by and between the appellant and the said company. It is also alleged in the plaint that Messrs Hecket Engineering Company had been maintaining registers in respect of steel and iron scraps showing the quantity of:- (a) Fresh steel or iron scraps (b) Steel or iron scraps from the dumps (c) Steel or iron scraps given for remE.L.T.ing. According to the plaintiff it has also been maintaining corresponding registers. 6. The Assistant Collector, Central Excise allegedly by a letter dated 12-12-1963 conveyed to the appellant the following: - "(a) It has been decided to treat the scrap recovered from the dumps as pre-excise stoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s many as seven issues which are as follows: "(i) Whether the plaintiff has got cause of action and right to sue? (ii) Whether the suit is barred by time, waiver, aquiscence and estoppel? (iii) Whether exemption granted by impugned Notification No. 75/62 is available to the plaintiff? (iv) Whether on facts and circumstances of the case, the plaintiff is entitled to the exemption and if so, to what extent? (v) Whether valid notice u/s 80 C.P.C. was duly served upon the defendant? (vi) Whether the plaintiff is entitled to the decree as claimed? (vii) Any other relief?" 11. The learned trial court has discussed issue No. 3 in paragraph 8 of his judgment. According to the learned court below, the said Notification No. 75/62 was not applicable in relation to the steel ingots manufactured by the appellant. The learned trial court, despite the said finding proceeded to consider issue No. 4 and held that the plaintiff has not been able to prove its case on facts as well. 12. Mr. Bishwanath Prasad, the learned counsel appearing on behalf of the appellant has raised two fold contentions. Firstly, the learned counsel submitted that the learned court below has committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T.ing scraps, exclusively or inadmixture with any other material so much of the duty of excise as is proved to have been paid on such fresh unused steel mE.L.T.ing scrap under Item No. 26 of the said schedule provided that no set off of duty has already been availed of in respect of such scrap [M.F. (D.R.) C. Ex. Notification No. 53/64 dated 1-3-1964]". 14. Secondly the learned counsel submitted that the learned Court below while deciding issue No. 4 had not at all taken into consideration the effect, purport and intent of Exhibits, 4,4/A, 4/B to 4/13, Exhibit 10 series and other relevant documents and oral evidences on record in their proper perspective and thus committed a serious error in deciding the said issue against the plaintiff-appellant. 15. Mr. Debi Prasad, learned counsel appearing on behalf of the respondent, on the other hand, submitted that the Civil Court has no jurisdiction to entertain the suit in view of Sections 35, 36 and 40 of the Central Excise and Salt Act. According to the learned counsel the suit involves a question of interpretation of the Notification No. 75 of 1962 and as the same was within the exclusive domain of the authorities of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked into because the same were merely office copies of the original documents and thus inadmissible in evidence. The learned trial court on the basis of his aforementioned findings dismissed the suit. In this case also the counsel for the parties advanced the same argument. 17A. In this view of the matter the questions that fall for consideration in this appeal are as follows:- (i) Whether the civil court's jurisdiction is barred by necessary implication in view of Sections 35,36 and 40 of the Central Excise and the Salt Act ? (ii) Whether the exemption Notification of 75/62 is applicable in the facts and the circumstances of this case as the plaintiff had been manufacturing steel in-gots not exclusively out of old duty paid skull scraps but after admixturing certain other materials therein therewith? (iii) Whether the appellant has been able to prove its claim for recovery of the amount mentioned in the two suits? Re. Question No. 1 18. Sections 35,36 and 40 of the Central Excise and Salt Act read as follows:- "35. Appeals:- (1) Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the rules made there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o an assessee for redressal of its grievances, the jurisdiction of the Civil Court is barred by necessary implication. 21. In the decision of the Allahabad High Court relied upon by Mr. Prasad, it has been held that an interpretation of a notification being within the exclusive domain of the authorities under Central Excise and Salt Act, the jurisdiction of the Civil Court in relation to such matter is barred. With utmost respect to the learned Judges, I am unable to subscribe the aforementioned view. However, in this case it is not necessary to go into the aforementioned question in details inasmuch as the question with regard to the maintainability of the suit was decided as a preliminary issue and therein it was held that the civil court has no jurisdiction to try the said suit. The plaintiff-appellant thereafter, preferred an appeal against the aforementioned order in this Court and by an order dated 21-12-1973 this Court set aside the aforementioned order holding that the suit is maintainable. 22. Apart from the same, it is now well settled that the onus lies upon the party to show that the jurisdiction of the civil court is barred. 23. The very fact that sub-section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 1969 S.C. 560 (Dewaji v. V. Ganpatlal). (iii) The onus is on the party who seeks to oust the jurisdiction of the Civil Court to establish its stand. Further, a statute ousting the jurisdiction of the Civil Court must be strictly construed See A.I.R. 1966 S.C. 1718 (Abdul Waheed Khan v. Bhawani and others) (iv) Even if the jurisdiction of the Civil Court is excluded by statute, in case where the provisions of such statute have not been complied with, or a statutory tribunal has not acted in confirmity with the fundamental principles of judicial procedure, the Civil Courts would still have jurisdiction to examine such cases See A.I.R. 1966 S.C. 1718 (Abdul Waheed Khan v. Bhawani and others)." 25. In view of the aforementioned discussions, in my opinion, not only it was not open to the respondents to reagitate the question of maintainability of the suit, the suit is also otherwise maintainable. Re. Question No. 2 26. From a plain reading of the notification dated 24-4-1962, it will be evident that the same is an exemption notification and the language used therein is plain and unambiguous. The aforementioned notification dated 24-4-1962 being an exemption notification, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the same commodity imposed in prior years. Item No. 27 which relates to aluminium, reads:- Rate of duty Three hundred rupees per metric tonne. Five hundred rupees per metric tonne ingots, bars, blocks, slabs, billets, shots and pellets made out of old aluminium scrap or scrap obtained from the virgin metal on which the appropriate excise duty has been paid from so much of the duty leviable thereon as is in excess of Rs. 200.00 per metric tonne". In the said case also a submission was raised on behalf of the Union of India that sheets, circles etc. which had been manufactured wholly and solely out of duty-paid slabs could be the subsect matter of exemption. But it was held, this condition of eligibility for concessional rate of duty is beyond the notification altogether and perhaps beyond reason." The Supreme Court laid down the Law succinctly thus:- "13. To return what has been taken wrongly is as much a duty and grace of government as to levy relentlessly and fully what is due. Default in either, not altogether unfamiliar, brings down the confidence of the community in the Administration. That a party should have been put to two expensive and elongated litigations to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others, reported in 1976 Supreme Court, 490 is wholly misplaced. In that case the Supreme Court was considering the effect and scope of the Kerala State and Subordinate Services Rules and construed a note to rule 13A in the light of sociological condition and the fact that the same was intended to apply in relation to the people of weaker section. It is now a well known cannon of interpretation of statute, that if the meaning of the words employed in a statute are clear, the same has got to be given effect to without inserting or substracting any word. Reed Dickerson in his interpretation and Application of Statute at page 135 states the law thus:- "The essence of the language is to reflect, express, and perhaps even effect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called "conceptual map of human experience." In Reserve Bank of India v. Peerless Com. reported in 1987 (1) S.C.C. 424 it has been held by the Supreme Court:- "Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Commissioner of Income Tax, Tamil Nadu I. v. Simoson and Company, (1980) 122 ITR 283, has held as follows:- "It is also a well-settled principle of construction that in construing a provision for exemption or relief, it should be liberally construed. The reason behind this rule or interpretation is that the administrative authorities or the courts should not whittle down the plenitude of the exemption or relief granted by Parliament by laying stress on any ambiguity here or there." Both on principle and precedent, it has, therefore, to be held that a formal resolution of the Government duly published in the official gazette under the name and order of the Governor would squarely come within the ambit of 'notification'. Consequently, the petitioner would be clearly entitled to the exemption under annexure-7." 33. In this view of the matter, in my opinion, it has to be held that the learned trial court misdirected itself in interpreting the notification in question. Further it is also well known that while interpreting one notification unless the same is vague or ambiguous, recourse to other notification is impermissible for construing the said document. In the premises i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s purpose the plaintiff examined Dr. Rajendra Kumar (p.w.18). The evidence of the expert was rejected by the learned trial court simply on the ground that the figure of metallic content of the earlier scrap were supplied by one Mr. Chakravarty. It further held that there are some discrepancies about the period of displacement test report, inasmuch as the displacement test reports are Exts. 5 to 5/Z-24 relating to the period of 1964 but no displacement test report was produced for the period of 1962-63. He, therefore, came to the conclusion that as the opinion of Dr. Rajendra Kumar (p.w.18) was based on some unknown datas furnished by Mr. Chakravarty, the recovery rate as calculated by him suffers from an element of uncertainty. 37A. Mr. Bishwanath Prasad learned counsel has rightly submitted that if the learned trial court had taken into consideration the Furnace report which are contained in Exhibit 10 series, the amount of steel skull scraps which was remE.L.T.ed during the relevant period could have been calculated. It could not have been rejected simply on the ground that all furnace reports are not available. 38. The learned court below, in my opinion, has completely misdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for re-determination of the fact, the learned court below again and direct that the court, regard being had to the peculiar facts and the circumstances of the case and also the amount involved in the suit, would grant an opportunity to the parties to adduce additional evidence, if required. The learned trial court, in the facts and the circumstances of this case is also directed to try both the suits analogously which in my opinion is essential in the interest of justice. The learned trial court is further directed to try all the issues in the suit except the issues which have been decided by this court herein and shall return the evidence to this court together with its finding thereon and the reasons therefor within six months from the date of the receipt of the court records. It further appears that the learned trial court has not taken into consideration the reports (Exts. 1 series and Ext. 4 series) wherefrom the quantity of scraps were supplied to appellant to Heckette Engineering Company, which could have been proved. The omission to consider this vital document in their proper perspective has resulted the miscarriage of justice and as such, in my opinion, it requires an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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