TMI Blog1979 (11) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... facture of the Complex Fertilizers and the credit taken for the countervailing duty paid on the imported Muriate of Potash used in the manufacture of the Complex Fertilizers. 2. The petitioners are manufacturers of Fertilizers liable for excise duty at 15 per cent ad valorem under Item No. 14-HH of the First Schedule to the Central Excises and Salt Act, 1944. They own three units in the same factory at Manali the first designed to produce Ammonia, the second to produce Urea and the third to produce Complex Fertilizers. The distribution of Fertilisers is governed by the Fertiliser Control Order, 1957. The components of the NPK Complex Fertilisers, namely NPK 14-28-14 and NPK 17-17-17- according to the petitioners are Urea manufactured by the petitioners' factory on which excise duty is paid at 15 per cent ad valorem and Muriate of Potash imported from abroad on which countervailing duty is paid under Section 2A of the Indian Tariff Act. 3. By the Notification No. 25/70-Central Excises, dated 1-3-1970 the Central Government exempted mixed fertilisers falling under Item 14-HH of Schedule I manufactured with the aid of power from two or more fertilisers on all of which appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70 to the effect that all fertilisers from out of which the mixed fertiliser is made should stand duty paid does not stand satisfied. Even if duty is paid on urea, duty would not be paid on ammonium phosphate and as such the conditions of Notification cannot be fulfilled. To extend the benefit of concessional assessment under Notification No. 25/70 to NPK would also be discriminatory vis-a-vis those who manufacture mixed fertilisers by physical mixing of duty paid fertilisers like ammonium sulphate or urea and muriate/sulphate of potash. Whereas in the case of NPK manufactured by M/s. Madras Fertilisers Ltd., the ammonium phosphate content would not have paid any duty, similar duty could have paid by those who follow the other method of manufacture of - mixed fertilisers, I, therefore, hold that the benefit of Notification No. 25/70, dated 1-3-1970 cannot be extended to NPK fertilisers manufactured by M/s. Madras Fertilisers Ltd., and they cannot be given the option to clear NPK mixtures without payment of duty under Notification No. 25/70 by opting to pay the duties on urea". 5. The petitioners filed an appeal before the Appellate Collector of Central Excise, Madras, on 11-9-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is revisional order of the Government of India by his order dated 5-3-1976 observing: "You have been permitted to avail the exemption under Notification 25/70-C.E., dated 1-3-1970 in accordance with the decision taken by the Government of India in their Order 276/76, dated 18-2-1976 on your Revision Petition, provided the following conditions are fulfilled; (1) Duty is paid on two base fertilisers, viz., Urea and Muriate of Potash which are used in the NPK Mixtures VIJAY 17:17:17. (2) No credit under Rule 56-A is taken for the countervailing duty paid on the imported Muriate of Potash used in the mixtures VIJAY 17:17:17. (3) The existing stock, if any, of the imported Muriate of Potash for which credit under Rule 56-A has been already taken and the same accounted in RG-23, could be used in the Mixture VIJAY 17:17:17. only on payment of appropriate duty on them." 8. However, the same Assistant Collector issued a show cause notice dated 7-6-1976 to the petitioners stating that- "in actual working it is observed that while M/s. Madras Fertilisers Limited are availing the exemption under Notification 25/70-C.E., dated 1-3-1970, the conditions required therein have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is, therefore, without jurisdiction. However, the Assistant Collector of Central Excise passed the impugned order dated 7-1-1977 observing inter alia that after the classification list submitted by the petitioners was approved by his predecessor-in-office on 4-3-1976, a review of the process of manufacture was undertaken and it was found that the conditions of the Notification No. 25/70 have not been fulfilled. It was further stated in that order that - "In effect all the base fertilisers which go into the manufacture of the complex fertiliser should have suffered the duty element. In the present case the NPK Mixture/Complex fertiliser is manufactured out of combination of Urea, Muriate of Potash, Phosphoric Acid, Ammonia, Filler and Coating agents and the end product is not a mixture but a combination of several other ingredients which can be termed as a complex/compound fertiliser and that Ammonium Phosphate which is formed with the chemical reaction of Ammonia and Phosphoric Acid had not suffered the duty element while only the other two base fertilisers, viz., Urea and Muriate of Potash had discharged the duty liability. It is significant to note that the Ammonium Phospha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essor. As it has been found that the classification list approved was not correct and the product in question manufactured by the assessee is not eligible for exemption, naturally the classification list is sought to be reviewed after issue of a show cause notice and after the assessee is also heard in person. It is, thus, clear that the action proposed and being taken by me is within my jurisdiction and within my powers". 9. The Assistant Collector has finally held that the order "granting exemption to the petitioners be withdrawn and that they should pay duty on their product removed from the factory from 5-3-1976 onwards and also file a revised classification list and price list in proper form in respect of the product. 10. As stated earlier, W.P. No. 152 of 1977 has been filed to quash, this impugned order dated 7-1-1977 and W.P. No. 455 of 1977 has been filed for refund of the duty paid on the Complex Fertiliser upto 5-3-1976, after making adjustments of the duty payable on the urea used in the manufacture and credit taken for the countervailing duty paid on the imported muriate of potash used in the manufacture of the Mixture. The grounds urged in both the writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exemption. In the course of the manufacture of the NPK fertilisers, ammonia and phosphoric acid produce in the slurries ammonium phosphate which by itself is a fertiliser, though ammonia and' phosphoric acid by themselves are not fertilisers individually, and therefore the petitioners are not entitled to the exemption claimed by them. The petitioners could have gone on appeal and revision to the Appellate Collector and the Central Government under Sections 35 and 36 of the Central Excises and Salt Act, 1944, and the writ petitions filed, without availing the alternative remedy, are not maintainable. 13. Mr. Utham Reddi, the learned Counsel for the petitioners, submitted that the order dated 18-2-1976 of the Central Government is a final order ' holding that the petitioners are entitled to the exemption under the Notification No. 25 of 1970 dated 1-3-1970 and the exemption was granted by the Asst. Collector of Central Excise by his letter dated 5-3-1976, referred to above, and the petitioners had satisfied all the three conditions mentioned in that letter and cleared the NPK fertilisers from 5-3-1976 up to January, 1977, paying duty on the urea or countervailing duty on the mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lisers manufactured by the petitioners are complex fertilisers which are obtained by chemical reaction and such complex fertilisers cannot be considered as simple mixtures to attract the exemption granted in the Notification and that the petitioners are, therefore, not entitled to the benefit of the Notification in respect of the complex fertilisers produced by them, and he dismissed the appeal. In the revision before the Central Government the point considered by the Appellate Collector of Central Excise alone was considered and it has been held that the Notification does not lay down any condition that there should be only physical action without chemical reaction and it only requires that the mixture can be obtained with the aid of power and the mixed fertilisers should contain not more than one nutrient. The Government of India set aside the order of the Appellate Collector observing that it is not a speaking order on the issue involved, and it has clearly stated that the exemption under the said Notification is allowed to the petitioners if the conditions thereof are fulfilled. The conditions have been set out by the Assistant Collector of Central Excise by his letter dated 5- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise. 16. It may be that if the matter was res integra and not concluded by the Central Government's revisional order dated. 18-2-1976 the view held by the Asstt. Collector of Central Excise in the impugned order dated. 7-11-1977 is correct, for, such a view has been taken by a Division Bench of the Andhra Pradesh High Court in the judgment dated. 24-9-1976 in Writ Petition Nos. 1400 to 1403 of 1976 [Coromandal Fertilisers Limited v. Union of India and others], 1979 E.L.T. (J 501), in respect of the same Notification. The learned Judges have observed : "The first point to be considered, which would immediately arise is about the true and natural meaning of the notification gathered from the language used therein. We have fully extracted the notification above. The exemption is given to 'mixed fertilisers' which fall under item No. 14HH of the First Schedule to the Act. The explanation gives the meaning of the term 'mixed fertilisers' as 'mixtures of fertilisers' containing more than one nutrient (nitrogen, phoshate or potash) and does not include single nutrient fertilisers like super phosphate manufactured from rock phosphate'. Therefore, by the expression 'mixed fertiliser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government of India wanted to limit the exemption in the manner in which the learned Government Pleader construed, then it would have used the word 'only' before 'two or more fertilisers'. Since that word does not occur, the exemption would be available even if other commodities are used in the manufacture of fertilisers. If that were the intention of the notification, then it could have easily said manufactured from two or more fertilisers or other substances. Not only it omitted to say that, but on the other hand the notification throughout emphasises on the use of fertilisers and fertilisers alone. The absence of the word 'only' before 'two or more fertilisers' does not stand in the way of understanding the real intention of the Government of India If other commodities are also used in manufacturing the mixed fertilisers, then the said mixed fertilisers walk out of the exemption. We have already noted the averments in paragraph 8 of the writ petition describing the process of manufacture of NPK 14:35:14 and the fertilisers and commodities used therein. The petitioner company itself stated that NPK 14:35:14 is manufactured by mixing with aid of power from the two imported fer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents on the following two decisions of the Supreme Court in Champalal Binani v. The Commissioner of Income-tax, West Bengal and others (A.l.R. 1970 Supreme Court 645) and Suganmal v. State of Madhya Pradesh and others (1965-I.S.C.J. 443=16 S.T.C. 398). Section 35 of the Central Excises and Salt Act, 1944, provides for an appeal to the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, or, in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by the Central Government, against any decision or order passed by a Central Excise Officer under that Act or the Rules made thereunder not being an order passed under Section 35-A of the Act, within the period mentioned in that Section. Section 35-A provides for revision by the Central Board of Excise and Customs on its own motion or otherwise of a decision or order passed under the Central Excises and Salt Act, 1944, or the rules made thereunder by the Collector of Central Excise, not being a decision or order passed on an appeal under Section 35, for the purpose of sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not adequate opportunity of making his representation and invoked the extraordinary jurisdiction of the High Court. In our judgment no adequate ground was made out for entertaining the petition. A writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the Authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy, the High Court would be slow to entertain a petition challenging an order of a taxing authority which is ex-facie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petitioner." I have already found that the revisional order dated 18-2-1976 of the Central Government is a final order and that the Assistant Collector of Central Excise had no jurisdiction to pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right. 19. The learned Counsel for the respondents submitted that W.P. No. 455 of 1977 has been filed merely for the issue of a writ of mandamus directing the refund of a duty alleged to have been illegally collected in contravention of the notification, the benefit of which the petitioners claim to be entitled, and it is therefore not maintainable. It is not possible to apply the ratio of the decision in this case to the facts of the present case where the petitioners have filed W.P. No. 153 of 1977 for quashing the impugned order, but for which the petitioners would be entitled to the amount sought to be refunded in W.P. No. 455 of 1977. Moreover, the learned Counsel for the petitioners invited my attention to the decision of the Supreme Court in Patel India (Private) Ltd. v. Union of India and others (A.I.R. 1973 Supreme Court 1300) in support of the contention that a writ of mandamus in W.P. No. 455 of 1977 is maintainable. In that case the writ petition was filed on the ground that Section 40 of the Sea Customs Act, 1878, had no application, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prescribed by S. 40. But since Section 40 did not apply to the facts of the case, the respondents could not retain the excess duty except upon the authority of some other provision of law. No other provision was pointed out by them which would disentitle the appellant company to the refund on the ground of its right being time-barred or otherwise. No such provision other than Section 40 which disentitled the appellant-company to the refund having been put forward and the customer authorities not being entitled to retain the excess duty, there was a legal obligation on the part of the respondents to return the excess duty and a corresponding legal right in the appellant-company to recover it...... For the reasons aforesaid, we are satisfied that the High Court not right in refusing the relief, in spite of its being satisfied that the excess duty was charged without any basis in law and also that the respondents could not lawfully retain the excess duty." 20. The respondents in the present case can have no objection to their liability to refund the excess duty except that the petitioners are not entitled to the benefit of the notification No. 25/70, dated 1-3-1970, to which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f certiorari". 22. In the present case it has been found that the Assistant Collector of Central Excise had no jurisdiction to pass the impugned order after the matter had been concluded by the revisional order dated 18-2-1976 of the Central Government. In the course of the arguments the learned counsel for the respondents brought to my notice the proceeding of the authorities superior to the Assistant Collector of Central Excise that the view similar to the one expressed by him the impugned order dated 7-1-1977 is possible and the Assistant Collector may consider the question. Therefore, even if the petitioners have filed any appeal against the impugned order before the Appellate Collector of Central Excise, it would have been only an exercise in futility. 23. A Division Bench of this Court in The Collector of Central Excise, Madras v. V.K. Palappa Nadar (A.I.R. 1964 Madras 111) has observed: "As pointed out by the Supreme Court in New Prakash Transport Co. Ltd. v. New Suwarna Transport Co. Ltd. [1957 SCR 98 : (S) AIR 1957 SC 232] these tribunals exercise quasi judicial powers. Though there are no specific rules for their procedure, they have got to observe the rules of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, is a threat to property and thus gives rise to a right to move this Court under Article 32. The petitioner in such circumstances is not compelled to wait or go through the lengthy procedure of appeals, references, etc. He may move the Supreme Court for the enforcement of the fundamental rights so threatened. This, however, is not an "absolute right. This Court will limit the petitioner to establishing a breach of fundamental right. It will not allow a petitioner to use the provisions of Article 32 to do duty as an Appeal". This decision of the Supreme Court is referred to in the decision of a Full Bench of the Gujarat High Court in A bad Cotton Mfg. Co. Ltd. etc. v. Union of India and others (A.I.R. 1977 Gujarat 113), where the learned Judges have observed : "the last question which remains is as to cases of enforcement of fundamental rights falling within Article 226(1), Clause (A) where there is no fetter of this alternative remedy for entertaining such a petition under Article 226(3). That question is no longer res integra because on the identical provision in Article 32, the question is concluded by the decision in Coffee Board, Bangalore v. Joint Commercial Tax Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is that exclusion of the jurisdiction of the civil courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which if confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Exen where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conformity with the fundamental principles of judicial procedure. The word 'jurisdiction' has both a narrow and a wider meaning. In the "sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a 'question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction". 26. In the present case, the Assistant Collector of Central Excise has exceeded his ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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