Rajasthan High Court - Jaipur
Shree Rajasthan Syntex Ltd. And Anr. vs Union Of India (Uoi) And Ors. on 14 May, 1985
Equivalent citations: 1986(23)ELT329(RAJ)
JUDGMENT M.C. Jain, J.
1. This writ petition along with other writ petitions mentioned in the schedule annexed, raise a common question as to whether the manufacture of blended spun yarn produced by the petitioner is covered under tariff Item 18 111(i) or (ii).
2. The petitioners' contention is that the blended product does not contain any man-made fibre of non-cellulosic origin whereas the contention of the respondent is that it contains man-made fibre of non-cellulosic origin. The Assistant Collector of Central Excise has passed an order treating the product under item 18 III Clause (ii) and on that basis demands have been issued. The petitioners by these writ petitions have sought quashing of the orders of the Assistant Collector as well as the consequential demands issued by respondent No. 5, the Superintendent of Central Excise.
3. According to the petitioners the blended spun yarn produced by the petitioners contain man-made fibre of cellulosic origin which predominates in weight and along with that non-cellulosic waste is blended in the yarn and so it does not contain any man-made fibre of non-cellulosic origin. The order of the Assistant Collector, Central Excise and the consequential demand has been challenged inter alia on the ground that the order was passed in violation of principles of natural justice inasmuch as adequate opportunity of hearing was not given to the petitioners. The petitioners' classification was provisionally accepted under Item 18 III(i) and clearance was given. Various orders of provisional clearance were issued. Thereafter, dates were fixed for hearing but the Assistant Collector, Central Excise, despite repeated prayers, did not furnish the chemical examiners' report on which he has based his order and apart from that, even the grounds were not specified to the petitioners on the basis of which the petitioners' classification was not accepted and the petitioners' product was considered to fall under Item 18 III(ii).
4. It may be stated that the learned counsel appearing on behalf of the petitioners strenuously urged with all emphasis at their command that the matter can be disposed of by this Court as the matter does not involve any disputed questions of fact. On the basis of the pleadings of the parties, the Court can conveniently arrive at the finding that the petitioners did not use any man-made fibre of non-cellulosic origin in their manufactured product. On the basis of pleadings of the parties there would only arise a question of law and not a question of fact. On this aspect as well quite lengthy arguments were advanced before me but I feel that the matter requires serious consideration which will involve definitely a question of fact and the entire case depends on this particular finding as to whether the petitioners product contains any man-made fibre of non-cellulosic origin or the petitioners simply used non-cellulosic waste covered under Item 18 IV. It may be stated that the non-cellulosic waste which is used by the petitioners is a waste of different stages and naturally its form and character would be of different nature. Whether that waste undergoes any process or not, culminating into fibre or not, would be questions which would need determination in the case and alt these questions would be questions of such a nature which may require evidence in the form of affidavits or otherwise. The petitioners have produced in this Court some material and documents in the form of affidavit and extract of treatises. All that material, if produced, can be examined by the Assistant Collector and he may apply his mind to whatever material the petitioners furnished before him. It would not be proper for this Court to undertake a detailed enquiry regarding the process or processes which are undertaken for the purpose of blending non-cellulosic waste or producing cellulosic spun yarn. It would be proper that the parties may place the entire evidence before the Assistant Collector so that he may examine all that material and arrive at the finding which is necessary to determine the controversy in question. So I am of the opinion that I need not enter into the merits of the matter and decide the controversy.
5. However, as the Assistant Collector has not given adequate opportunity to the petitioners and did not even issue show cause notice to them for classifying under item 18 Ill(ii), which grounds are not in dispute, the orders of the Assistant Collector as well as the consequential demands deserve to be quashed.
6. On behalf of the petitioners, my attention has also been invited to this fact that administrative instructions have been issued by the Collector, Central Excise and so it would be futile to make any fresh exercise in the matter before the Assistant Collector. In this connection, I may state that the Assistant Collector is a quasi-judicial authority and has to discharge his functions and duties in a quasi-judicial manner. I would like to impress upon the Assistant Collector that he is not bound by any administrative instructions. The questions of fact and law which may be raised before him by the parties are required to be determined by him after full application of mind in an objective manner without feeling in any way controlled by any administrative instructions and he will deal with clearly and expressly the reasoning which may be advanced on behalf of the petitioners. It is only when the petitioners' reasoning is dealt with, that would show that there is application of mind by him. The above observations have been made in view of the fact that administrative instructions have been brought to my notice by the counsel for the petitioners.
7. For the reasons stated above, the order of the Assistant Collector, Central Excise and the consequential demands are liable to be quashed.
8. With the above observations the above writ petition and those mentioned in the Schedule are allowed, The orders of the Asstt. Collector, Central Excise passed in these writ petitions are quashed and consequential demands raised are also quashed. The Assistant Collector, Central Excise is directed to decide the matter afresh after giving the petitioners adequate opportunity of hearing in the light of the observations expressly made above. It is further stated, that if the final orders are passed against the petitioners, demands will not be enforced against the petitioners, till any order is passed in appeal on the stay applications which may be submitted by them. The demands however, can be enforced if appeals are not preferred or stay applications are rejected. It is further directed that the Assistant Collector shall give provisional clearance on the basis of the classification given by the petitioners. The interim order shall stand vacated.