Madras High Court
M/S. Mrf Ltd vs Central Board Of Excise And Customs on 6 August, 2018
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.08.2018
CORAM
THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU
W.P.Nos.28198 & 28199 of 2016
& W.M.P.Nos.24344, 24345 & 24347 of 2016
and
W.P.Nos.28164 & 28165 of 2017
& W.M.P.Nos.30297 & 30298 of 2017
W.P.Nos.28198 and 28199 of 2016
M/s. MRF Ltd.,
124 Greams Road,
Mount Road,
Chennai 600 006
represented by its Power of Attorney Holder
Mr.N.Nagaraja .. Petitioner in both the W.Ps.
Vs.
1. Central Board of Excise and Customs
represented by Under Secretary to the
Government of India,
North Block,
New Delhi 110 001.
2. The Deputy Director,
Directorate General of Central Excise
Intelligence,
Chennai Zonal Unit,
C-3, C-Wing, II Floor, Rajaji Bhavan,
Besant Nagar,
Chennai 600 090.
3. Director, (Legal Metrology)
The Legal Metrology Division
of Ministry of Consumer Affairs,
Food and Public Distribution,
Department of Consumer Affairs,
Krishi Bhawan, New Delhi 110 114. ..Respondents in both the W.Ps.
Prayer in W.P.No.28198/2016
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records of the Circular bearing F.No.6/3/2015-CX-1 and dated 04.04.2016 issued by the respondent No.1 along with enclosure bearing No.EM.10(54)/2015 and dated 05.01.2016 issued by the Respondent No.3 (collectively referred to as the impugned Circular along with enclosure') and quash the same and forbear the respondents No.1 and 2, their agents, representatives, servants and officers from charging excise duty under section 4A of the Excise Act from the Petition basis such Impugned Circular along with enclosure as against Central Excise duty assessed and recovered under section 4 of the Excise Act all along from the Petition.
Prayer in W.P.No.28199/2016
Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records of the clarification bearing No.WM-10 (54)/2015 and dated 05.01.2016 issued by the Respondent No.3 and quash the same as being issued in excess of jurisdiction and in violation of the principles of natural justice.
For Petitioner : Mr.C.Natarajan
Senior counsel for
Mr.Karthik Sundaram
For Respondents : Mr.G.Rajagopalan,
Additional Solicitor General
assisted by Mr.V.Sundareswaran
Senior Standing Counsel for R1 and R2
Mr.T.V.Krishnamachari,
Senior Panel Counsel for R3.
W.P.Nos.28164 & 28165 of 2017
Apollo Tyres Limited,
B-25, SIPCOT Industrial Growth Center,
Oragadam,Sriperumbudur 602 105, Tamil Nadu,
represented by its Divisional Head
(Indirect Tax) Mr.Bikash Pillaniwala ..Petitioner
Vs
1. Central Board of Excise and Customs
represented by Under Secretary to the
Government of India, North Block,
New Delhi 110 001.
2. The Deputy Director,
Directorate General of Central Excise Intelligence,
Chennai Zonal Unit,
C-3, C-Wing, II Floor, Rajaji Bhavan,
Besant Nagar,
Chennai 600 090.
3. The Director (Legal Metrology),
The Legal Metrology Division of
Ministry of Consumer Affairs, Food & Public Distribution,
Department of Consumer Affairs,
Krishi Bhawan,
New Delhi 110 014. ..Respondents.
W.P.No.28164 of 2017 is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records of the Circular bearing F.No.6/3/2015-CX-1 dated 04.04.2016 issued by the Respondent No.1 along with enclosure bearing No.WM-10(54)/2015 dated 05.01.2016 issued by the Respondent No.3 and quash the same and forbear the Respondents Nos.1 and 2, their agents, representatives, servants and officers from charging excise duty under Section 4A of the Excise Act from the petitioner basing on such impugned Circular along with enclosure as against Central Excise duty assessed and recovered under Section 4 of the Excise Act all along from the Petitioner.
W.P.No.28165 of 2017 is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records of the Clarification order bearing No.WM-10 (54)/2015 dated 05.01.2016 issued by the respondent No.3 and quash the same as being issued in excess of jurisdiction and in violation of the principles of natural justice.
For Petitioner : Mr.Joseph Kodiathara
Senior counsel for
Mr.A.R.Ramanathan
For Respondents : Mr.G.Rajagopalan,
Additional Solicitor General
assisted by Mr.V.Sundareswaran
Senior Standing Counsel for R1 and R2
Mr.T.V.Krishnamachari,Senior Panel Counsel for R3.
COMMON ORDER
1. (i) W.P.No.28198 of 2016 is filed to issue a Writ of Certiorarified Mandamus to call for the records of the Circular bearing F.No.6/3/2015-CX-1 and dated 04.04.2016 issued by the respondent No.1 along with enclosure bearing No.EM.10(54)/2015 and dated 05.01.2016 issued by the Respondent No.3 (collectively referred to as the impugned Circular along with enclosure') and quash the same and forbear the respondents No.1 and 2, their agents, representatives, servants and officers from charging excise duty under section 4A of the excise Act from the Petition basis such Impugned Circular along with enclosure as against Central excise duty assessed and recovered under section 4 of the Excise Act all along from the Petition.
(ii) W.P.No.28199 of 2016 is filed to issue a Writ of Certiorari to call for the records of the clarification bearing No.WM-10 (54)/2015 and dated 05.01.2016 issued by the Respondent No.3 and quash the same as being issued in excess of jurisdiction and in violation of the principles of natural justice.
(iii) W.P.No.28164 of 2017 is filed to issue a Writ of Certiorarified Mandamus to call for the records of the Circular bearing F.No.6/3/2015-CX-1 dated 04.04.2016 issued by the Respondent No.1 along with enclosure bearing No.WM-10(54)/2015 dated 05.01.2016 issued by the Respondent No.3 and quash the same and forbear the Respondents Nos.1 and 2, their agents, representatives, servants and officers from charging excise duty under Section 4A of the Excise Act from the petitioner basing on such impugned Circular along with enclosure as against Central Excise duty assessed and recovered under Section 4 of the Excise Act all along from the Petitioner.
(iv) W.P.No.28165 of 2017 is filed to issue of a Writ of Certiorari to call for the records of the Clarification order bearing No.WM-10 (54)/2015 dated 05.01.2016 issued by the respondent No.3 and quash the same as being issued in excess of jurisdiction and in violation of the principles of natural justice.
2. All these writ petitioners are manufacturers of tyres, tubes and flaps and other rubber products falling under Chapter 40 of the Central Excise Tariff Act, 1985. They are aggrieved against the proceedings of the 1st and 3rd respondents, came to be issued on the representation made in respect of an issue regarding strapping of tyres, tubes and flaps considering as a 'pre-packaged commodity'. The petitioners sought such clarification, through their Association, from the Central Board of Excise and Customs under Section 37B of the Central Excise Act, 1944, with regard to 'pre-packaged commodity' since according to the petitioners, different interpretation is given in different places by the authorities concerned as to what is 'pre-packaged commodity', without there being any uniformity in applying the law which governs the subject matter in issue. The 1st respondent through communication dated 04.04.2016 informed the Automative Tyres Manufacturers Association, where the petitioners are the members, that the issue was referred to Ministry of Consumer Affairs, Legal Metrology Division and the reply dated 05.01.2016 received on such reference is enclosed for information. The 3rd respondent through the said proceedings dated 05.01.2016 informed the 1st respondent that the commodity consisting of tyre, tubes or tyre, tube & flaps in the form of a package may be considered as a pre-packaged commodity, if it falls in the ambit of the definition of 'pre-packaged commodity' given under section 2(l) of the Act. This communication dated 05.01.2016 was enclosed with the communication of the 1st respondent dated 04.04.2016 sent to the said Association. These two proceedings are now under challenge in these writ petitions.
3. Heard Mr.C.Natarajan, learned senior counsel appearing for the petitioner in W.P.Nos.28198 & 28199 of 2016, Mr.Joseph Kodiathara, learned senior counsel appearing for the petitioner in W.P.Nos.28164 & 28165 of 2017, Mr.G.Rajagopalan, learned Additional Solicitor General appearing for the 1st and 2nd respondents and Mr.T.V.Krishnamachari, learned senior panel counsel appearing for the 3rd respondent in all the writ petitions.
4. Though these writ petitions were filed with extensive pleadings raised with so many grounds on merits and the respondents have also filed their respective counter affidavits in detail, in view of the categorical submissions made by the learned Additional Solicitor General of India appearing for the respondents that each and every case will be considered on its own merits and in accordance with law to find out as to whether such commodity of each petitioner would fall within the definition of 'pre-packaged commodity' or not, uninfluenced by any of the observations or statement made by the authorities in their pleadings in these writ petitions, this Court is of the view that there is no necessity to go into the merits of the case in detail and give its view on the same, since, it is for the concerned Adjudicating Authority to apply his mind and pass orders individually in each case of the petitioners by applying the law which governs the field, as submitted by the learned Additional Solicitor General of India.
5. Learned senior counsel appearing for the petitioners in all these cases fairly submitted that if the authorities are to consider and decide each case on its own merits and in accordance with law, uninfluenced by the stand taken in their pleadings before this Court, they may not have any objection for such authority in doing such exercise.
6. Perusal of the impugned orders would also show that the respondents 1 and 3 have not stated anything more than extracting the relevant provision of law, namely, definition of pre-packaged commodity, as defined under section 2(l) of Legal Metrology Act, 2009, and also to indicate that the commodity consisting of tyre, tube or tyre, tube and flaps in the form of package may be considered as 'pre-packaged commodity', if it falls in the ambit of definition of 'pre-packaged commodity' given under section 2(l) of the Act. For proper understanding, the impugned proceedings of the respondents 1 and 3 are extracted below:
F.No.6/3/2015-CX.1 Government of India Ministry of Finance Department of Revenue Central Board Excise & Customs
--------
New Delhi, the 4th April,2016.
To Automotive Tyres Manufacturers Association, PHD House (4th Floor), opp.Assian Games Village, New Delhi-110 016.
Subject: Central Excise duty on Tyre, Tube & Flaps-regarding. Sir, I am directed to refer to TRU Section's O.M.F.No.334/05/2016-TRU dated 2.2.2016 referring to your representation requesting for clarification on Excise Duty on sale of Tyre, Tube & flap (TTF) and MRP on packed commodity. In this regard, please be informed that the issue was referred to Ministry of Consumer Affairs, Legal Metrology Division, reply received on the reference is enclosed herewith for your kind information please.
Yours faithfully, (Santosh Kumar Mishra) Under Secretary (CX.1) ********************** WM-10(54)/2015 Government of India Ministry of Consumer Affairs, Food & Public Distribution Department of consumer Affairs Legal Metrology Division.
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Krishi Bhavan, New Delhi Dated : 5.1.2016 To, Shri Santosh Kumar Mishra The Under Secretary (CX.I) Central Board of Excise & Customs, Department of Revenue, Ministry of Finance New Delhi.
Subject : Excise duty on sale of Tyres, Tubes & Flaps-regd. Sir, The undersigned is directed to refer to your letter No.6/3/2015-CX.1 dated 6.11.29015 on the above cited subject and to state that the term pre-packaged commodity is defined under section 2(l) of the Legal Metrology Act, 2009, as follows:
(l) pre-packaged commodity means a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity;
2. Therefore, it is to inform that the commodity consisting of tyre, tube or tyre, tube & flaps in the form of a package may be considered as a pre-packed commodity, if it falls in the ambit of the definition of pre-packed commodity given under section 2(l) of the Act.
3. This issues with the approval of competent authority.
Yours faithfully, (B.N.Dixit) Director (Legal Metrology) Tel.No.23389489/23386194 Email: [email protected]
7. Though the communication of the 3rd respondent referred supra indicated that what they mean by calling 'pre-packaged commodity', the 3rd respondent has also categorically stated therein that a particular commodity will be considered as 'pre-packaged commodity', only when it falls within the ambit of 'pre-packaged commodity' as defined under section 2(l) of the Act. Therefore, when it is evident, apart from the fact that the learned Additional Solicitor General also admitted to the position, that the authorities will consider each and every case on its own merits and in accordance with law, there need not be any apprehension in the minds of the petitioners as though the respondents have pre-determined the matter as per the stand taken in their counter affidavits. Needless to state that the authorities, while determining as to whether the particular commodity is a 'pre-packaged commodity' or not, has to apply the law governing the field and the definition made therein with regard to such commodity and pass orders on merits and in accordance with law. Since the learned Additional Solicitor General has given such assurance before this Court that the individual case will be dealt with separately on its own merits and in accordance with law uninfluenced by any of the observations made or stand taken by the respondents in their pleadings or in the impugned proceedings, these writ petitions are disposed of without expressing any view on the merits and contentions raised on either side, only with a direction to the authorities to consider each and every case on its own merits and pass orders on the same in accordance with law, uninfluenced by the stand taken by the respondents in their counter affidavit as well as in the impugned proceedings. No costs. Consequently, connected miscellaneous petitions are closed.
06.08.2018 Speaking/Non-speaking order Index : Yes / No vsi To
1. The Under Secretary to the Government of India, Central Board of Excise and Customs North Block, New Delhi 110 001.
2. The Deputy Director, Directorate General of Central Excise Intelligence, Chennai Zonal Unit, C-3, C-Wing, II Floor, Rajaji Bhavan, Besant Nagar, Chennai 600 090.
3. Director, (Legal Metrology) The Legal Metrology Division of Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, Krishi Bhawan, New Delhi 110 114.
K.RAVICHANDRABAABU,J.
Vsi W.P.Nos.28198 & 28199 of 2016 and W.P.Nos.28164 & 28165 of 2017 06.08.2018