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TMI Blog2000 (11) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... s, wared glass, coloured figured glass and coloured wared glass (herein referred to as the said glasses). 3.According to the petitioner, the Central Excise Authority wrongfully and illegally assessed the goods under Tariff Item No. 23A of the first schedule of the Central Excise and Salt Act, 1944 (hereinafter referred to as the said Act) as sheet glass and plate glass. Accordingly, central excise duties were assessed, paid or realised by the authorities in respect of the same under a mistaken stand on behalf of both the parties. Such Item No. 23A is set out hereunder : ...... "Item No. 23A - Glass & Glassware Item No. Tariff Description Rate of Duty 23A Glass & Glassware Sheet Glass & Plate Glass 30% ad valorem Laboratory Glassware 10% ad valorem Glass Shells, Glass Globes & Chimneys for Lamps & Lanterns 15% ad valorem Other Glassware including Tableware 30% ad valorem" 4. According to the petitioner, the said glasses as manufactured by it does not fall under Tariff Item No. 23A as it was neither sheet glass and plate glass nor laboratory glassware nor glass shells, glass globes and chimneys for lamps and lanterns or other glassware or table lamp. The said glasses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viable in respect of goods Sl. No. (I to III) of Item No. 4 above is approved under T. I. 23A(1) of C.E.T. leviable at (a) Basic 30% Adv. + Splt. 5% of basic duty until further orders." 8.According to the petitioner, such order as passed by the authority is without jurisdiction and is wrongful, illegal and bad in law. This is more so for the reason that the authority concerned have been apprised the judgment of the Gujarat High Court as reported in 1979 (4) E.L.T. (J 608) (supra). The purported order is bad for the reason that inspite of above the purported order was passed in violation of principles of natural justice without affording any opportunity to make representation. This order is also bad for the reason that no reason was given in the order itself. Mr. R. N. Bojoria, Learned Senior Counsel cited a decision reported in 1978 (2) E.L.T. (J 229) [Hindustan Pilkington Glass Works Ltd. v. Superintendent, Central Excise, Asansol & Ors.] and contended before this Court that it was held by the Calcutta High Court that in case of any trade discount an uniformity has to be maintained by each and every State in the country. If different trade discounts are allowed to different trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ltd. v. Union of India & Ors.]. Under such judgment it was held that the High Courts have power under Article 226 for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by Government without the authority of law even if the period is not within the limitation for the purpose of instituting the suit or for initiation of any proceeding. As I have understood from the decision that once the order is a nullity it is always a nullity and the same is curable even under the Article 226 of Constitution for having an appropriate remedy. 10.Mr. Pranotosh Mukherjee, Learned Counsel, appearing for the respondents contended before this Court that it is duty incumbent upon the assessee under Rule 173B of the Central Excise Rule, 1944 to file the list of goods in favour of the proper officer. Thereafter, the authority concerned will proceed on the basis of such rules. He relied upon a judgment reported in 1986 (25) E.L.T. 473 (S.C.) = 1986 (3) SCC 480 [Atul Glass Industries Pvt. Ltd. v. Collector of Central Excise and Hindustan Safety Glass Works Ltd. v. Union of India & Ors.] to establish that the test commonly ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Syndicate, Kanpur] which is similarly placed with the earlier one. He further placed the judgment reported in 1991 (51) E.L.T. 176 (S.C.) [Jute Corporation of India Ltd. v. Commissioner of Income-tax] to establish the deduction on ground of liability before the assessing officer but can be used before the Appellate Authority which is empowered to allow the assessee to raise an additional ground in assailing the order of assessment before it after affording an opportunity of hearing provided the additional ground is bona fide and could not be raised earlier. 14.He further cited a judgment reported in JT 1991 (3) SC 325 [The Original Director, Employees State Insurance Corporation v. M/s. High Land Coffee Works of P.F.X. Saldanha & Sons & Anr.] by citing this judgment, Mr. Mukherjee has drawn by attention to the word 'Includes' as available under the Tariff Item No. 23A as amended. He sought the clarification in view of such judgment that the word 'includes' is used to enlarge the meaning of the word and phrases according to the body of the Constitution. When it is so used, these words or phrases must be construed as providing not only such things as they signify according to their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to why the goods will be governed by amended Tariff Item No. 23A(1) or residuary Article No. 68 to justify the claim of the petitioner but not mechanically as it turned out under the order impugned. It is also deprecated by this Court that inspite of reference being made in respect of the Division Bench of the Gujarat High Court the authority did not think twice to consider to call up the petitioner or its representative to explain the position before such authority coming to an appropriate conclusion. The argument as advanced by the authority that all avenues are open before the Appellate Court is redundant because the appropriate authority, inspite of knowledge in respect of the said judgment of the Gujarat High Court passed a mechanical order ignoring the judgment of the Division Bench of the Gujarat High Court in this respect particularly when amendment of the appropriate tariff item was made following the same. No hearing was also given to the parties in connection thereto and an order was passed without any reason whatsoever. In other words, the order is without jurisdiction and is a nullity. Therefore, the jurisdiction of the Writ Court was rightly invoked. Hence, the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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