Madras High Court
Tuticorin Alkali Chemicals & ... vs Supdt. Of C. Ex. on 28 June, 1991
Equivalent citations: 1992(38)ECC348, 1991(56)ELT295(MAD)
JUDGMENT
1. The above writ petition has been filed for the issuance of a writ of mandamus directing the respondents herein to forbear from proceeding to levy or recover duty under the provisions of the Central Excises and Salt Act, 1944, on the slurry occurring in the course of manufacture of soda as in the continuous process employed by the petitioners.
2. The occasion for the filing of the writ petition appears to be the show cause notice issued on 6-5-1988 by the Superintendent of Central Excise, Tuticorin Range, calling upon the petitioners to show cause to the Assistant Collector of Central Excise, Tuticorin Division, Tuticorin as to why the duty amount of Rs. 7,79,36,583.58 Ps. (DED Rs. 7,55,61,319.00 + SED Rs. 23,75,264.38) should not be demanded from them under Rule 9(2) of Central Excise Rules, 1944 read with Section 11A of Central Excise Act, 1944 and why a penalty should not be imposed on them under Rules 210 and 713 of Central Excise Rules, 1944.
3. The learned counsel for the writ petitioner submits that the Customs, Excise and Gold (Control) Appellate Tribunal, Delhi, in Punjab National Fertilizers & Chemicals Ltd. v. Collector of Central Excise Chandigarh reported in 1991 (54) ELT 115 (Tribunal) = 1991 (34) ECR 166 (Cegat SB-C) had an occasion to consider the very same issue that is raised in the present writ petition, applying the ratio of certain decisions of the Apex Court, held that the product in question dealt with as Sodium Bicarbonate is a mixture of chemicals arising at the intermediate stage in the process of manufacture of soda ash and consequently is not liable to duty as Sodium Bicarbonate The Tribunal while coming to such a conclusion, relied upon the following decisions of the Supreme Court and the ratio laid down therein as hereunder :-
"... The Supreme Court after discussing its earlier judgment in the cases of (1) UOI v. Delhi Cloth & General Mills (1977 (1) ELT 190 = Cen-Cus April 1973, P. 56 : 1990 (27) ECR 151 (SC); ECR C 216 SC); (2) 1978 (2) ELT J-336 = 1989 (25) ECR 447 (SC); ECR C 257 (S.C.) (South Bihar Sugar Mills Ltd. v. UOI); (3) (Union Carbide India Ltd. v. UOI) and (4) regarding the bill to amend Section 20 of the Sea Customs Act, 1978 and Section 53 of the Central Excises and Salt Act, 1944 - 1964 (3) SCR 757 at page 822 = 1989 (21) ECR 273 (SC), in Bhor Industries (supra), held as follows :-
"7. .. taxable event in the case of duties of excise is the manufacture thereof." Therefore, the essential ingredient is that there should be manufacture of goods. The goods being articles which are known to those who are dealing in the market having their identity as such. Section 3 of the Act enjoins that there shall be levied and collected in such manner as may be prescribed duties of excise, on all excisable goods other than salt which are produced or 'manufactured' in India. 'Excisable goods' under Section 2(d) of the Act means goods specified in the Schedule to the Central Excise Tariff Act, 1985 as being subject to a duty of excise and includes salt. Therefore, it is necessary, in a case like this, to find out whether there are goods, that is to say, articles as known in the market as separate distinct identifiable commodities and whether the tariff duty levied would be as specified in the Schedule. Simply because a certain article falls within the Schedule it would not be dutiable under excise law if the said article is not 'goods' known to the market. Marketability, therefore, is an essential ingredient in order to be dutiable under the Schedule to Central Excise Tariff Act, 1985."
Earlier in para 5 of the Report regarding Bhor Industries the Supreme Court has observed as follows :-
"It appears to us that under the Central Excise Act, as it stood at the relevant time, in order to be goods as specified in the entry the first condition was that as a result of manufacture goods must come into existence. For articles to be goods these must come into existence. For articles to be goods these must be known in the market as such or these must be capable of being sold in the market as goods. Actual sale in the market is not necessary, user in the captive consumption is not determinative that the articles must be capable of being sold in the market or known in the market as goods. That was necessary."
The extracts of the affidavits of the two experts brought on record by the appellant have already been set out above. No evidence to the contrary had been adduced by the department. Even the technical literature relied upon by both sides and in particular, Industrial Chemicals relied upon by the department (relevant extracts from which have already been set out above), clearly indicates that the impugned product cannot be termed as "Sodium Bicarbonate". In fact, the product has been given various names in various books such as crude products, impure product, ammonia soda, etc. These various names bringing out the impure and crude character of the impugned product itself is indicative of the fact that it is not known in the market as Sodium Bicarbonate. In fact all the technical literature brought on record clearly envisages that the normal method of production of Sodium Bicarbonate is from Soda Ash which is the finished product of the appellant. Another important fact has also been mentioned in the appeal memorandum that while Soda Ash has a market price of Rs. 3,000/- per tonne, the Sodium Bicarbonate has a market price of Rs. 6000/- per M.T. It would be absurd to think that intermediate product would be costlier than the finished product which emerges out of the intermediate product."
4. In the light of the above categoric pronouncement which holds the field and which is not being disputed on behalf of the respondents, the writ petitioner cannot be saddled with a liability for excise duty under the Central Excises and Salt Act. Consequently, it is hereby declared that as the law stands, the petitioner cannot be proceeded against, and called upon to pay excise duty on the product in question which is being dealt with by them. The writ petition is ordered in the above lines. No costs.