Patna High Court
Bajrangbali Coke Briquetting ... vs State Of Bihar And Ors. on 25 September, 1991
Equivalent citations: 1992(2)BLJR878
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. Whether the plant for manufacturing briquette is a plant for production of coke and, thus, a "colliery" within the meaning of Clause 2(2) of the Colliery Control Order, 1945, is the question involved in these writ applications
2. The petitioners manufacture briquette in their plants. According to the petitioners, the ingredients for manufacturing briquettes are mixed coke, coal dust middlings, etc.
3. The petitioners have contended that their factories are registered under the Factories Act and are also small scale industrial units, certificates wherefor have been issued by the Directorate of the Small Scale Industries to the petitioners,
4. According to the petitioners, in view of the definition of "colliery" as contained in Clause 2(2) of the Colliery Control Order, 1945, an Order deemed to have been made by the Central Government under Section 3 of the Essential Commodities Act, 1945, the briquettimg plants belonging to the petitioners do not come within the purview of the provisions of the Bihar Trade Articles (Licensing Unification) Order, 1984 (hereinafter to be referred to and called for the sake of brevity as the 'Unification Order'). The petitioners, therefore, have prayed in these application that a declaration be made that the provisions of Unification Order do not apply to the business of the petitioners and also for issuance of a writ of or in the nature of mandamus commanding upon the concerned respondents not to interfere with their businesses.
5. Mr. M.M. Banerjee, learned Counsel appearing for the petitioners drew my attention to the statements made in the writ petition and submitted that briquette is manufactured from mixed coke, middlings and coal dust, which are put in an even and the only difference between manufacture of hard coke and briquette is the temperature in the ovens.
6. Learned Counsel further submitted that in view of the definition of '"colliery" as contained in the Colliery Control Order, 1945, plant for the production of coke having been included therein the provisions of Colliery Control Order, 1945 would apply in the case of manufacture of briquette also and in that view of the matter the provisions of the Bihar Trade Articles (Licences Unification) Order, 1984 cannot have any application in relation to the plants for production of briquette.
7. Learned Counsel in this connection has strongly relied upon Black Diamond Industries v. State of Bihar reported in 1986 BLT 127 and Waste Products Reclaimers Ltd. v. Coal Countroller of India reported in 1986 BLT 177 as also a decision of a Division Bench of this Court in Bajrangbali Coke Briquet-ting Industries v. State of Bihar and Ors. reported in 1987 PLJR 926.
8. Mr. Narayan Roy the learned Government Advocate appearing for the respondents, on the other hand, submitted that briquette is not "coke" and the plant for production of briquette is not a plant for production of "coke" and in that view of the matter provisions of Colliery Control Order, 1945 will have no application in the facts and circumstances of this case.
9. In this case, therefore, it is to be considered as to whether 'briquette' is a "coke" or not ?
10. The word "coke" has not been defined in the Colliery Control Order, 1945 or in the Bihar Trade Articles (Licences Unification) Order, 1984.
11. Coal, however, has been defined in Clause 2(b) of the Unification Order to include coke and other derivatives including soft coke and hard coke of various grades. Thus, even a "coke" is a coal within the meaning of the provisions of Unification Order. Thus, "briquette" whether it is "coal" or "coke" or other derivatives would come within the purview of the aforementioned definition.
12. "Coal" has been defined in the Colliery Control Order, 1945 to include anthracite, bituminous coal, lignite, peat and any other form of carbonaceous matter sold or marketed as coal and also coke.
Colliery has been defined in Clause 2(2) of the Colliery Control Order to mean ''any mine or open working where the getting of coal is the principal object of the mining, quarrying or other operations carried on therein and includes a plant for the production of coke or for the washing of coal.
13. In Black Diamond Industries and Anr. v. State of Bihar reported in 1986 BLT 117, a Division Bench of this Court after taking into consideration the provisions of the Colliery Control Order, Unification Order and the Coal Control Order, 1956 held:
(a) Unification Order, Display Order and Coal Control Order are not repugnant to Colliery Control Order as the last Order applies to dealers in coal who are themselves producers and Bihar Orders do no apply to them ;
(b) Colliery Control Order is applicable to petitioners as their plants for producing coke are collieries and the petitioners are owners of mine ; and
(e) Unification Order, Display Order and Coal Control Order do not apply in the case of the petitioners.
14. In the aforementioned decision, this Court was considering the cases of owners of plants for production of hard coke, and thus "colliery" within the meaning of the provisions of Clause 2(2) of the Colliery Control Order.
15. The same Bench in Waste Products Reclaimers Pvt. Ltd. and Ors. v. Coal Controller of India reported in 1986 BLT 177 following a Full Bench decision of this Court in Kundari Labour Co-operative Society and Ors. v. State of Bihar reported in 1986 PLJR 837 held that as slurry which is a creation of industrial effluent consisting of mud, ash, oily substance, water and carboneceious ingredient is not coal, briquettes manufactured out of such slurry would not also come within the purview of the Unification Order or the Display Order.
16. The Bench, however, repelled the contention of the petitioners thereof that plant manufacturing the briquettes would be 'colliery' within the meaning of Clause 2(2) of the Colliery Control Order stating:
In the writ petitions, the petitioners have also contended that they are governed by the Colliery Control Order, 1945, and the Unification Order and Display Order shall have no application to them. So far the Colliery Control Order is concerned, it applies to colliery which includes plants for manufacturing coke. Since the specific case of the petitioners is that they manufacture briquettes it can straightway be held that Colliery Control Order has no application so far slurry or manufacture of briquettes are concerned.
However, it may be mentioned that the decision of the Full Bench in Kundory Labour Co-operative Society Ltd. v. State reported in AIR 1986 Pat 342 : 1986 PLJR 837 has been reversed by the Supreme Court in Bharat Cooking Coal Ltd. v. State of Bihar and Ors. reported in 1991 (1) PLJR 3 (SC), wherein it has been held that 'slurry' is also 'coal'.
17. In view of the decision of the Supreme Court aforementioned as slurry is to be treated as coal, evidently, briquette manufactured from such slurry must also be held to be derivative of coal.
18. In Bajrangbali Coke Briquetting Industries v. State of Bihar and Ors. reported in 1987 PLJR 926, a Division Bench of this Court was considering a question as to whether coal briquettes prepared by mixing coal dust, soil and molasses should be treated as goods specified in the entry (ia) of Section 14 of Central Sales-tax Act being a form of coke and thus cannot be taxed as an unspecified item.
Section 14 of the Central Sales Tax Act specifies the goods enumerated therein as goods of special importance in inter-State trade or commerce and Clause (ia) thereof reads as follows:
Coal, including Coke in all its forms, but excluding charcoal.
19. In view of the terminology of the aforementioned provision and upon taking into consideration various decisions, this Court held that when the framers of the Act not only included the words 'coke but have added further including coke in all its forms, then any product made out of it has to be included under Section 14 (ia) of the Central Sales Tax Act.
20. In that case, the Court held:
It is not in dispute that coal dust are nothing but particles of coal. Even coke is prepared in different forms from coal after undergoing a process of manufacture. It has been stated in 'Chemical Engineers Handbook' 3rd Edn. at page 1566 which was also noticed by the Supreme Court in the aforesaid case in respect of coke-
Coke is a hard, dense, infusible carbonizatian residue that ranges from a dull gray black to a silvery gray the latter is characteristic of good quality, high temperature coke. A coke of this type makes a ringing sound when dropped of struck with a hard object. It exhibits a porous cellular structure, which primarily depends upon the kind of coal used and the rate of heating during the carbonization process.
(underlining is mine) Encyclopaedia Britannica Vol. 5 (1973) Edition page 35 describes Code as follows:
Coke is a hard, cellular mass of carbonaceious material, Coke is essentially a partially graphitized and cellular form of carbon. Coke is solid residue that remains after certain types of bituminous coals are heated to a high temperature out of contact with air until substantially all of the volatils constituents of the coal have been driven off. The residue consists principally of carbon.
(underlining is mine)
21. This Court took also into consideration the decision of the Allahabad High Court in K. C. Industries Moradabad v. Asstt. Sales Tax Commissioner 1978 Tax LR 2129 wherein it was held:
The allegation that coke briquettes are meant for domestic kitchen consumption is not denied in the counter-affidavit. The coke therefore manufactured by mechanical pressing is used for the same purpose as coke. The contents of coke briquettes, namely, moisture, volatile matters, ash an 1 carbon are the same as in any other coke. The mere change is shape by mechanical pressing does not change the commodity. It remains the same. In Webster's Third New International Dictionary 'Form' has been defined as, the shape and structure of something as distinguished from the material of which it is composed. Mere change of shape or structure in the raw material does not result in production of new commodity. And even if it is so the entry is wide enough to cover in its field commodities which remain the same dispite change in shape. Choke briquettes thus being only a preparation of coke dust are covered by the expression 'coal in all its form.
It further took into consideration the decision of the Madras High Court in Deputy Commissioner of Commercial Taxes v. Kuppuswami Chetty (1980) 45 STC 308 wherein it was held that 'the process which goes to the manufacture or making of loco briquette was the same as employed for the purpose of obtaining coke and as such the product was covered by Section 14 (ia) a form of coke.
22. In that case, unfortunately, attention of the Court was not drawn to the decision of the earlier Division Bench in Waste Products Reclaimers Ltd. case (supra). Howver, as noticed hereinbefore, in terms of Section 14 (ia) of the Central Sales Tax Act, a good of special importance is not only coke in all its form, but also coal in all its forms. Thus even if briquette is not held to be strictly a 'coke', it would come within the purview of definition of 'coal' and thus, whether it is a coal or coke, it would be a good of special importance in inter-State trade and commerce within the meaning of Section 14 of the Central Sales Tax Act.
23. In Nelson's Dictionary of Mining 'briquette' has been defined thus:
A moulded block of compressed solid fuel made from crushed coal. The fuel is usually smokeless, and a binding agent may or may not be used. A recent process developed in Britain consists in heat-treating crushed coal up to 400/425°C to drive off volatile substances (the coal is 'charred' in effect). The resultant char is then mixed with a small proportion of a highly plastic coal and the mixture is fed to moulds and pressed into briquettes.
In the same Dictioney 'briquetting' has been defined as:
(1) The operation of feeding crushed coal to moulds and pressing into bricks or ovoids ;
(2) The preparation of small pellets of ore from finely ground concentrate by sintering. Briquetting enables fine pulverulent materials, metal bearing ores ferrous and non-ferrous sward to be used economically. It makes handling, transporting and stocking easier and, where the material is required for smelting or processing, it can improve production.
In the same dictionery 'coke' has been defined as:
A brittle, porous, greyish fuel obtained from the carbonization of coal, i.e. coal from which the volatile matter has been expelled either wholly or partially. Coke contains about 80% of carbon and is practically smokelss.
'Sintering' has been defined as meaning:
A process in which fine iron ore is mixed with coke and ignited the coke providing the heat to produce semi-fused lumps of ore, which can be more efficiently smelted in the blast furnace than the fine ores which would cause operational difficulties.
The aforemention Dictionary has also been referred to by the Supreme Court in Bharat Coking Coal Ltd.'s case (supra) for the purpose of consideration as to whether 'slurry is 'coal'.
24. 'Briquette' has been defined in 'Technical Dictionary' by M. New-mark as meaning:
A block of briek of coal formed in molds under pressure.
'Briquette' has also been defined in New Lexicon Webster's Dictionary' at page 121 as meaning:
a bricks shaped block, esp. of compressed coal dust.
'Coke' has been defined in the said Dictionary at page 191 : in the following terms:
the hard, gray, porous residue, mostly carbon, obtained by destructive distillation of coal which is heated in a retort or oven, driving off coal gas and other volatile matter. It is used as a fuel and burns with great heat and little smoke.
Coke has been defined in 20th Century Encyclopedia at page 273 as meaning:
A clean, light fuel produced by the carbonization of certain types or blends of coal. When this coal is strongly heated in airtight ovens, in order to release all volatile constituents the brittle, silvergrey C is left. It comprises 90 per cent carbon together with very small quantities of water, hydrogen, oxygen etc. and makes a most useful industrial and domestic fuel.
Coke has also been defined in Chatto's 'Modern Science Dictionary' compiled by A. Hechtlinger as meaning:
The solid residue from the destructive distillation of bituminous coal, used as a fuel and in metallurgy.
In Crispin's 'Dictionary of Technical Terms' 'coke' has been defined as:
A fuel made by baking bituminous coal in closed ovens to bribe off gases and other elements. A ton of coal produces two-thirds ton of coke. Coke is 88 per cent carbon.
25. From the definition of 'briquette and 'coke', it is evident that whereas for the purpose of manufacturing 'coke', the process of carbonization is necessary ; for 'briquetting', only the process of sintering is to be followed.
26. From the meaning of 'sintering' as defined in Nelson's Dictionary of Mining and as noticed hereinbefore, it is evident that process of sintering involves 'providing the heat to produce semi-fused lumps of ore'. By the process of 'sintering' no new object is manufactured, but merely semi-fused lumps of ore or coal dust are formed.
27. For the purpose of manufacture of coke, coking coal has to undergo a process of carbonization so as to transform the same into a new object and which can be utilised for specific purposes.
28. The words 'plant for manufacture of coke' as used in Clause 2(2) of the Colliery Control Order, 1945 has to be considered in the light of the object of the said Order. The scope of the said order has been thoroughly considered by the Supreme Court in Singareni Collieries Co. Ltd. v. Commr. of Commercial Taxes and by this Court in Black Diamond Industry v. Coal Controller and Ors. reported in 1986 BLT 127.
29. It must be borne in mind that Colliery Control Order, 1945 was made in initially under Sub-rule (2) of Rule 81 of the Defence of India Rules by the Central Government for achieving the object and purport of the said Rules. The said Colliery Control Order 1945, in view of the notifications issued by the Central Government, would be deemed to be an Order made under Section 3 of the Essential Commodities Act, 1955.
See State of Bihar v. Hiralal Kejriwal .
30. The Unification Order was also made under the delegating notification issued by the Central Government in exercise of its power under Section 5 of the Essential Commodities Act. From a perusal of the definition of 'coal' as contained in Colliery Control Order, 1945 and the Unification Order, 1984, it is evident that the definition thereof in the later Order is of wider amplitude. In my opinion, therefore, under the Colliery Control Order, the word 'plant for the prodution of coke' having not included within its purview a plant for production of coke in all its forms, 'briquette' essentially being not a 'coke' a plant for production of briquette, in my opinion, will not come within the purview of the definition of 'colliery' as contained in Clause 2(2) of the Colliery Control Order, but it will be 'coal' within the meaning of the Unification Order, 1984.
31. In this case, the petitioners themselves have contended that briquette is not only manufactured from coal dust, but also from other derivatives of coal/coke, namely, middlings mixed coke etc. Coke is produced from raw coal and not from any derivative of coal. In the production of 'coke', as noticed hereinbefore, the process of carbonization has got to be gone into whereas briquette can be manufactured not only by mixing coal dust with molasses, slurry and mud, but also by mixing coal dust, mixed coke, middling etc.
32. In my opinion, therefore, evidently, in a plant for manufacturing, briquette, a semi-fused lumps of ore are manufactured by mixing coal dust, mixed coke and middlings etc. and thus the same is not a plant for manufacture of coke.
33. As noticed hereinbefore, even in Waste Products Reclaimer's case (supra), a Division Bench of this Court has clearly held that a plant for manufacture of briquette is not a colliery.
34. For the reasons aforementioned, it is to be held that the petitioners are not entitled to the declaration sought for.
35. In the result, these applications are dismissed. There will, however, be no order as to costs.