TMI Blog1978 (3) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Factories Act. It has been alleged that in the said factory no manufacturing profess is carried on and in fact the said Company in that factory carries on blending or processing only. 2. It further appears that at the said factory of the said Company makes or manufactures lubricating oils by further processing of blended or compounded lubricating oils purchased from open market. Those lubricating oils being excisable goods under the provisions of Central Excises and Salt Act, 1944 (hereinafter referred to as the said Act), it has been stated that excise duty on such lubricating oils are duty paid before they are put to sale in open market and in fact it has been alleged that prior to the necessary purchase of such lubricating oils b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the said Company that grease produced by them are of two varieties viz., (a) asphalt base grease for which asphalt is used and (b) scap base grease for which blended or compounded lubricating oil is used, and both the said varieties of greases are made at their factory premises by processing asphalt or blended or compounded lubricating oils. The said Company has categorically stated that asphalt and blended or compounded lubricating oils used by them are excisable goods under Items 11 and 11B, above and as such excise duty has already been paid in respect of those goods at the manufacturing point and before purchase by them from the open market. They have further and categorically stated that in the course of processing, no other ingr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are not required to be paid or chargeable to any tax under the said Act or the Tariffs thereunder. There is no doubt that the said Company has paid the demand but they have contended that such payment was not voluntary, but was made under compulsion and without prejudice, on the bona fide belief that the excise duty as paid would be refunded after the necessary decision is obtained by the respondents concerned from the appropriate authorities. It appears that the said Company made repeated representations before the appropriate authorities, who are respondents herein, contending amongst others that they are not liable to pay excise duty in respect of their products of greases. It has been alleged by the said Company that even inspite of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rule 173B, under the said Chapter provides that : ***** 13. These apart, it has been contended by the answering respondents that the instant writ petition is mix-conceived, baseless, untenable and is not maintainable. They have alleged that the writ in the instant case has been taken in gross abuse of the process of law and for delaying the payment of the legitimate Government revenue. They have also alleged that since a through investigation into the facts and the process of the manufacture of grease is required, and which are in dispute between the parties, this Court should not in this jurisdiction make any interference. 14. Mr. Pritimoy Datta appearing in support of the Rule, after placing the relevant facts as mentioned here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce from the authorities concerned, who incidentally, were superior authorities and entitled to hear the representation in this case. It was argued by Mr. Dutt, reference to the provisions in Sections 2(d), 3 and Items 11, 11A and 11B as mentioned hereinbefore, that the product of grease of the said Company, because of the manner of production or the process of manufacture, was not liable to any levy of duty and any event the said Company could not be taxed as they would neither come under Item 11A or 11B. He also submitted that the provisions of Rule 173B(2) would have no application in the instant case and as such the arguments made by the respondents, on that basis, would be of no avail or assistance. 17. On the ground of non-maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oil or blending of or compounding of mineral oil with any other ingredients as contemplated under Item 11B and the products are not derived by processing, in terms of Item 11A as mentioned above. It is also an admitted fact that the said Company produces such product of Greases with fat and chemicals to a substantial extent and as such, it cannot but be held that they, for such product of Greases, are using materials which would come within the words "any other ingredients" as mentioned in Item 11B and as such duty is liable to be paid on such product of Greases in terms of Section 3 of the said Act, read with Item 11B as mentioned above. The arguments of the said Company that they are not covered by Rule 173B cannot also be accepted and in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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