RICE AND OIL MILLS PARTERSHIP FIRM KANDASSANKADAVU Vs. DEPUTY SUPERINTENDENT OF CENTRAL EXCISE TRICHUR

JUDGEMENT

(1.) O. P. 180 of 1959 as filed originally, was by four petitioners jointly, for quashing four notices, Exts. P1 to P4 issued to them separately, by the respondent, the Deputy Superintendent of Central Excise, trichur M. O. R. On objection being taken to the form of the petition, it was split into four petitions and numbered as O. Ps. 180,180 [a], 180[b] and 180 [c] of 1959. The petitioners are four firms, which carry on business, in different names, of extracting vegetable non-essential oil. . As per item 23 in Schedule I of the Central Excise and Salt Act of 1944, referred to hereafter as the "act", a duty at the rate of Rs. 112/- per ton, is imposed on such oil cleared by a manufacturer. But S. 37 [2] [xvii] of the Act has provided, that rules may be enacted by the Central Government so as to "exempt any goods from the whole or any part of the duty imposed" by the Act. Accordingly, by R. 8 of the Central Excise Rules, 1944 the Central Government is authorised to exempt from time to time by notification in the official gazette, any excisable goods from the whole or part of the duty leviable thereon. Three notifications have been made under this Rule, the first being dated November 3,1956 and the other two being dated May 16,1957, the combined effect of which was, to exempt the first seventy-five tons of oil completely from duty, and the next fifty tons partially, by levying a duty thereon at the lower rate of Rs. 70/- per ton only. The petitioner firms have some common partners, and presumably on this basis, the respondent issued Exts. P 1 to P4, the effect of which was, that each of the firms would not be entitled to the full benefit of the exemptions, but that "those who are partners in more than one firm" to quote the language of the affidavit, are "entitled to get their share of the slab exemptions" only in one of the firms. In effect, these notices have decided, that the exemption for each firm must be assessed per capita between its partners, a partner being disentitled to claim the benefit of it in all the firms of which he is a partner, but only in one of them at his choice. The material part of the notification dated November 3,1956, which alone is relevant, is as follows: - "in exercise of the powers conferred by R. 8 of the central Excise Rules, 1944 the Central Government hereby exempts from the duty leviable thereon, a quantity not exceeding 125 tons of Vegetable Non-essential oils cleared by any manufacturer for home consumption on or 11 after. The operation of the two later notifications, was only upon the aforesaid quantity of 125 tons. On the merits of Exts. P1 to P4, the question is, whether the respondent was right in treating the partners, as distinguished from the firm constituted by them, as the manufacturer within the intendment of the notifications, for Exts. P1 to P4 have proceeded upon the footing, that each partner in the firm, is by himself a manufacturer. At the same time, the notices have not given full scope to this construction, by allowing to each of the partners of a firm, the benefit of the exemption on his account, but have limited it only to those partners who are common to more than one firm. This is neither here nor there.

(2.) FAR from supporting the notice on their merits, the learned counsel for the respondent contended, that at worst, such misinterpretation can only amount to an erroneous exercise of jurisdiction, and not to assumption of jurisdiction where it does not exist, and that therefore the petitioners must first resort to the remedy by way of appeal provided by the Act. In support of this, the learned counsel pointed out, that in law, a firm is not a corporation or a juristic person, and can only be taken to be a body or association of individuals called partners. It is unnecessary to resolve this question for the disposal of these petitions, but in dealing with the above preliminary objection, the following extract from the commentaries on the Indian Partnership Act by Pollock and Mulla, second edition, page 310, may be usefully made: "in short, the firm is treated very much as if it were a corporation; it is an artificial or 'moral' person for business purposes; and in some systems of law this personality receives formal acknowledgment. 'in Scotland' in particular, 'a firm is a legal person distinct from the partners of whom it is composed. "' And in Bhagwanji Morarji Goculdas v. Alembic Chemical works Co. Ltd. , A. I. R. 1948 P. C. 100, the Privy Council observed, that: "the Indian Partnership Act goes further than the english Partnership Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it, the law in India in that respect being more in accordance with the law of Scotland than with that of england". In Anil Kumar Samanta v. State, A. I. R. 1953 Calcutta 476, the question arose whether a firm can be deemed to be a 'person' within the scope of the explanation to S. 7 (2) of the Essential Supplies (Temporary powers) Act, 1946, under which, if each partner was to be taken as a person, he may hold foodgrains up to ten maunds, and the two partners constituting a firm may lawfully hold up to twenty maunds, and thereby escape liability for the penal consequences, while if the firm was to be considered as a person, it would be liable for holding more than ten maunds. The definition of the word 'person' in S. 3 (42) of the General Clauses Act, 1897, as including any "association or body of individuals whether incorporated or not" was adopted for holding, that "a body of persons in general is included within the definition of 'persons". It is unnecessary to pursue this matter, for the plain meaning of the term 'manufacturer' in the notification, is a person who manufactures, and this applies with greater appropriateness, in the present context, to a firm engaged in manufacture, than to the individual partners composing it. If so, the notices, Exts. P1 to P4 fall outside the scope and provisions of the notification and must be held to be illegal.