TMI Blog2014 (6) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... done at the threshold. The same analogy cannot be applied to the petition which is pending before this Court for last 16 years. If a waste paper is used as a raw material and if such waste paper itself contains the conventional material, then the resultant product may contain the conventional material more than the permissible limit. As such the method that is adopted by the respondent-Authority would not truly depict as to whether the use of the material at the stage of preparation of pulp was within the permissible limit or not. No doubt that we do not possess any expertise in such matters. However, the Commissioner of Central Excise , Nagpur on the basis of the communication of the C.B.E. & C. has itself now clarified the entire procedure which should be gone into while considering as to whether the assessee is entitled to exemption or not. Communication of the C.B.E. & C. and the subsequent trade notice only clarify as to what is provided under the notification. The said trade notice or the communication do not have effect of either substituting or replacing as to what is provided under the notification. The said communication and the trade notice are only clarificatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8/1996, dated 27-3-1996. The notification prescribes excise duty at concessional rate of 10% ad valorem on paper, paperboard, articles made therefrom. By subsequent Notification No. 28/96, dated 11-9-1996 a modification is made to the notification dated 27-3-1996 thereby providing that the minimum weight of pulp of unconventional raw material shall be 75% in place of 50%. 3. According to the petitioner, the petitioner at the relevant time was manufacturing the paper using 80 to 85% of unconventional pulp and as such was entitled to the exemption under the said notifications. After filing the classification list as required under the Rules, the petitioner claimed concessional rate of duty for various periods. It appears that on 22-8-1996, the Inspector, Central Excise, Ballarpur drew samples under test memo. According to the petitioner in the said sample, bamboo pulp used by the petitioner company was to the extent of 16% only and rest was the pulp made from the waste paper. It appears that subsequently a sample was taken by the officer of the respondent of the finished product which was sent to the Chemical Examiner. The Chemical Examiner vide report dated 15-11-1996 found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the stage of pulp, in a factory and such pulp contains not less than 50% by weight of pulp made from the materials other than bamboo, hard woods, soft woods, reeds, (other than sarkanda) or rags. It is submitted that subsequently the said requirement of 50% has been increased to 75% by a subsequent Notification dated 11-9-1996. It is the bone of contention of Mr. Thakur that what is relevant for the purposes of exemption is as to whether 75% or above of the weight of the pulp is made from the materials other than the bamboo, hard woods, soft woods, reeds etc. He submits that if 75% or more of pulp made from unconventional materials is used while manufacturing the paper etc., the petitioner would be entitled to exemption. The learned counsel submits that by the communication dated 24-9-1997, the Central Board of Excise Customs (for short C.B.E. C.), which is a supreme administrative authority insofar as the respondents are concerned, has itself clarified that any raw material not covered under the terms of bamboo, hard-woods, soft-woods is to be treated as an unconventional raw material for the purpose of granting exemption. The learned counsel further submits that not onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Assistant Collector - 1991 (56) E.L.T. 718 (A.P); in the case of Nivaram Pharma Pvt. Ltd. v. CEGAT, Madras - 2008 (12) S.T.R. 98 (Mad.) = 2006 (205) E.L.T. 9 (Mad.). The learned ASGI further relies on the judgment of the Division Bench of this Court in the case of ISPAT Industries Ltd. v. Union of India - 2010 (257) E.L.T. 171 (Bom.) and in the case of Indoworth India Ltd. v. CESTAT, Mumbai - 2010 (253) E.L.T. 364 (Bom.) = 2011 (21) S.T.R. 688 (Bom.). It is further contention of the learned ASGI for the respondents that when a complete adjudication machinery is provided under the statute right from the level of the Assistant Commissioner, Commissioner, CESTAT, this Court and the Apex Court, this Court should not permit the petitioner to bypass the said remedy and approach this Court directly. The learned ASGI further submits that if this is permitted, then every person will rush to this Court without availing of the remedy available to him. It is further submitted that when the petitioner has submitted itself to the jurisdiction of the Assistant Commissioner and after having invited an order, it is not permissible for it now to say that the Assistant Commissioner has erroneousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the question involved in the present matter is on a narrow compass, though the learned ASGI with his expertise has attempted to widen the same. In our considered view it will not be in the interest of justice to throw away the litigation after making it wait in the corridors of justice for the last 16 years. We find support in that regard from the judgment of the Apex Court in the case of L. Hirday Narain v. Income Tax Officer, Bareilly - AIR 1971 Supreme Court 33. It will be relevant to refer to para 12 of the said judgment :- An order under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by s. 33A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under s. 35, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t operate as a bar in exercising writ jurisdiction under Article 226 of the Constitution of India. In the present case, as would be discussed by us hereinafter, it would be clear that the impugned orders are based on either ignorance of the directives of the C.B.E. C. and the Commissioner of Central Excise, Nagpur or without correctly interpreting the same. In that view of the matter, we are not inclined to accept the contention of the learned ASGI, insofar as the non-exercise of the jurisdiction on the ground of alternative remedy is concerned. For the same reason, we are not inclined to accept the contention of the learned ASGI that since the complete machinery is provided under the statute, we should throw away the petition after having entertained the petition for last 16 years. The contention of Mr. Mishra that if this is permitted every person will rush to this Court, is heard only to be rejected. The learned ASGI is himself aware of various petitions wherein he has appeared and which have been dismissed by the Benches to which either of us are party, on the ground of availability of alternative remedy. However, that has been done at the threshold. The same analogy cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h exemption has been to protect the environment, inasmuch as reduction of conventional material for the pulp, like bamboo, hard woods, soft woods, reeds etc., would promote safeguarding of the national wealth of the nation. It further appears that there was a confusion amongst the various authorities as to whether any raw material not covered under the terms of bamboo, hard woods, soft woods, reeds etc., is to be treated as unconventional raw material for the purposes of granting exemption under Notification Nos. 22/94, 73/95 and 4/97. The C.B.E. C. vide communication dated 24-9-1997 has issued a clarification and specifically provided that any raw material not covered under the terms of bamboo, hard woods, soft woods etc. is to be treated as an unconventional raw material for the purpose of granting exemption under various notifications. The perusal of the Notification No. 22/94 which is reproduced at Annexure-E of the paper book, would reveal that the said Notification is pari materia identical with the Notification No. 4/97, dated 1-3-1997. Not only this, but on the basis of the said communication by C.B.E. C., Commissioner of Central Excise, Nagpur, himself has issued a tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less than 50% by weight of pulp made from materials (other than bamboo; hardwoods, softwoods, reeds and rags). It is not the case of the department that the pulp used by them was containing more than 50% materials such as bamboo, hardwoods, softwoods, reeds and rags. The Notification does not exclude the use of waster paper in the manufacturing of paper for the purpose of availing the benefit of Notification. When Notification does not exclude the use of waste paper , the department cannot exclude its use by implication. The only material fact is that the paper was manufactured out of pulp containing not less than 50 per cent by weight of pulp made from materials other than bamboo, hardwoods, softwoods, reeds or rags. The department cannot go back to find out as to how the waster paper used in the manufacture of pulp, was manufactured. Accordingly the benefit of Notification is available to the respondents as they have satisfied the condition specified in the Notification about the pulp. Further, the Central Board of Excise and Customs, under letter F. No. 61/16/97-CX.4, dated 24-9-1997, has clarified that any raw material not covered under the terms of bamboo, hardwoods, softwoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he permissible limit or not. No doubt that we do not possess any expertise in such matters. However, the Commissioner of Central Excise , Nagpur on the basis of the communication of the C.B.E. C. has itself now clarified the entire procedure which should be gone into while considering as to whether the assessee is entitled to exemption or not. 14. We are not impressed with the submission of Mr. Mishra that the said trade notice dated 29-10-1997 and the communication of the C.B.E. C. dated 24-9-1997 cannot be made retrospectively available, inasmuch as the period for which the orders are passed against the petitioner are prior to the issuance of the said trade circular and the communication. The communication of the C.B.E. C. and the subsequent trade notice only clarify as to what is provided under the notification. The said trade notice or the communication do not have effect of either substituting or replacing as to what is provided under the notification. The said communication and the trade notice are only clarificatory in nature and provide for the manner in which the procedure has to be followed for determining as to whether an assessee is entitled to exemption or not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
