9911796707
TMI Blog1994 (1) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tariff item read as follows : Item No. 14HH - FERTILISERS Item No. Description Rate of Duty 14HH. Fertilisers, all sorts, but excluding natural, animal or vegetable fertilisers when not chemically treated. 15% ad valorem 2. On March 1, 1970, the Government of India issued a Notification bearing No. 25/70 under Rule 8(1) of the Central Excise Rules exempting "mixed fertilizers, falling under Item No. 14HH of the First Schedule to the Central Excises and Salt Act, 1944 manufactured with the aid of power, from two or more fertilizers on all of which the appropriate amount of the duty of excise or, as the case may be, the additional duty under Section 2A of the Indian Tariff Act, 1943 has already been paid, from the whole of the duty of excise leviable thereon." There was an Explanation appended to the said Notification but since it is not relevant for the present purposes, it need not be quoted or referred to. A reading of the Notification shows that excise duty was waived in full in respect of "mixed fertilisers falling under Item 14HH" which is manufactured "from two or more fertilisers on all of which the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the issue involved and is set aside. The exemption under the said notification is allowed if the conditions thereof are fulfilled." 4. According to the Government of India's order, the fact that chemical reaction takes place during the mixing of fertilizers is no ground of denying the benefit of the said Notification. It was of the opinion that the benefit of the Notification cannot be confirmed to simple mixtures alone, inasmuch as the Notification did not contain any such condition. Having so held, it remitted the matter to the lower authorities to grant the exemption if the conditions of the Notification are fulfilled. Be it noted that the Government of India did not deal with other objections contained in the Assistant Collector's order - presumably because, the appellate order (which was the subject matter of challenge before the Government of India) dealt only with one ground viz., occurring of chemical reaction/transformation during the course of mixing of fertilizers by the appellant, yielding a new product ammonium phosphate. 5. Pursuant to the orders of the Government of India, the Assistant Collector, by his order dated March 5, 1976, extended the benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a new product. 7. The appellant approached the Madras High Court by way of writ petition against the aforesaid order of the Assistant Collector dated January 7, 1977. The main contention urged by the petitioner was that inasmuch as the impugned order of the Assistant Collector denies the benefit of the Notification on a ground which has been specifically negatived by the Government of India in its revisional order dated February 18, 1976, it is unsustainable in law. A learned Single Judge agreed with the appellant's contention and allowed the writ petition against which the State preferred a writ appeal. The Division Bench allowed the writ appeal and dismissed the writ petition. The Division Bench held that the appellant was not right in contending that the Assistant Collector's order dated January 7, 1977 is based on the only ground which had been negatived by the Government of India in its order dated 18-2-1976. So far as merits are concerned, the Division Bench held that the decision of this Court in Coromandal Fertilisers Ltd. v. Union of India and Ors. [1985 (1) SCR 523 = 1984 (17) E.L.T. 607 (SC)] concludes the issue against the appellant. The Division Bench further observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. The said order in revision has to be read as a whole and understood reasonably. If so read and understood, it must be held to have left no room to reagitate the very same objections over again. All that the authorities were required to be satisfied was regarding the payment of duty on components and nothing more. 9. We may first deal with the submission of the learned counsel for the appellant with respect to the meaning and effect of the order of the Government of India dated February 18, 1976. The order deals only with one aspect viz., that chemical reaction or transformation, if any, taking place on the mixing of fertilisers is no ground to deny the benefit of the aforementioned Notification to mixture of fertilisers. The order does not deal with any other condition specified in the exemption Notification. It would, therefore, not be reasonable to read the said order as holding finally that the fertiliser mixture manufactured by the petitioner satisfies all the conditions of the said Notification. Nor are we prepared to accede to the learned counsel's contention that the remitting of the matter to the lower authorities was confined only to verification of payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission viz., Collector of Central Excise v. Pallappa (1964 Madras 111) has no relevance whatsoever. That was a case where the appellate authority set aside the order of the original authority levying penalty without saying more. It was held that in such a situation, the original authority has no power to initiate de novo proceedings for levy of penalty. We are unable to see any analogy whatsoever with that case herein. The learned counsel also cited Union of India v. Kamalakshi Finance Corporation Ltd. [1991 (55) E.L.T. 433] to stress the judicial discipline required of the Excise officers to obey the order of the superior tribunals and courts. Again, we see no relevance of the said principle in the facts of that case. 11. It has been held by this Court in Coromandal Fertilisers that ammonia is not a fertiliser but falls within the purview of "gases" mentioned under Tariff Item 14H, whereas fertilisers fall under Tariff Item 14HH. In view of the said judgment it can no longer be contended by the appellant that ammonia (which is one of the chemicals used to manufacture N.P.K.) is a fertiliser. Sri Uttam Reddy requested that an opportunity may be given to the appellant to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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