ASIA TOBACCO COMPANY LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) W.P. No. 997 of 1983 is filed for issue of Writ of Certiorari calling for the records comprised in the letter of the fourth respondent dated 23-8-1982 and to quash the same while W.P. No. 1153 of 1983 is for a Writ ofmanda musdirecting the respondents 2 and 4 to exempt the outer shells and inner slides from the whole of duty of excise under Notification No. 66/82 C.E., dated 28-2-1982 in so far as the petitioner company is concerned. W.P. No. 1154 of 1985 is also for the issue of Writ of Certiorari calling for the records comprised in the letter of the second respondent dated 7-4-1982 and to quash the same.

(2.) THE case of the petitioner as disclosed in the affidavit and which are necessary for the disposal of these writ petitions is briefly as follows :- THE petitioner-company was incorporated in the year 1973 and is a Joint Sector limited company with 50% shareholding by Tamil Nadu Industrial Development Corporation Limited, a wholly owned State Government undertaking and the remaining 50% of the shares are held by private persons. THE said company is engaged in the manufacture of cigarettes at its factory in Hosur, Dharmapuri District and for this purpose, he has taken out necessary licence in form L 4 etc., under the Central Excises and Salt Act, 1944, hereinafter called the Act. THE cigarettes are subjected to levy of excise duty under Item 4 II(2) of the Central Excise Tariff. THE cigarettes at the time of excise levy are packed in what are commonly known as cigarette packets. It is further stated that a packet of cigarette consists of two components. One is called the outer shell (also called the cigarette packet shell) and the other component is called the slide which is inserted into the shell to make a cigarette packet. THE petitioner manufactures, the outer shell and the inner slide at its own factory in Hosur for the purpose of marketing its own brand. With respect to ITC brands, the inner slides are made at the petitioner's factory to be used along with the outer shells supplied by the ITC. By virtue of the Finance Bill of 1982, a new sub-item 4 was added to Tariff Item 17 of the First Schedule to the Act. By that entry, boxes, cartons and other packing containers were brought under Tariff Item 17(4). Item No. 17 is under the head "Paper and Paper Board and Articles thereof. THE further case of the petitioner is a Notification No. 66/82 C.E., dated 28-2-1982 was issued by the Central Government exempting articles of Paper and Paper board, falling under sub-item 4 of Item 17 of the First Schedule to the Act from the whole of the excise duty leviable thereon provided that no such exemption would apply to printed boxes and cartons (including flattened or folded printed boxes and flattened or folded printed cartons) whether in assembled or unassembled condition. According to the petitioner, the purport of the notification is, apparently, to levy duty only on boxes and cartons and not on any other packing containers or bags. While such being the case, the fourth respondent after the introduction of the Finance Bill of 1982, issued the impugned letter dated 23-8-1982 informing the petitioner that outer shells are in the nature of printed boxes and accordingly are classifiable under Tariff Item 17(4) and that they would not be eligible for exemption under Notification No. 66/82. Further as the slides are manufactured and cleared by the petitioner along with the outer shells, duty would be chargeable on the value of both. Hence he required the petitioner to apply for an L 4 licence for manufacture of such shells in the petitioner's factory before commencement of manufacture of such goods. THE second respondent also issued a directive to all Collectors of Central Excise to that effect and thereby created confusion in the matter instead of clearing doubts. According to the petitioner, the outer shell is not a container since it is open of both sides. Even assuming without admitting that the said components fall under Item 17(4) the outer shell with or without the inner slides are exempted from duty of excise by virtue of Notification No. 66/82, dated 28-2-1982. THE said exemption notification grants exemption to articles made of paper and paper board falling under Item 17(4) from the whole of the duty of Excise except in the case of printed boxes and printed cartons. A cigarette packet can in no way be described or called a printed box or a printed carton within the meaning of the proviso to the said notification. According to the petitioner in accepted commercial and common parlance a container for packing cigarettes is known only as "packets' and are never described as" carton"or" box" * of cigarettes. THE petitioner also submitted that the dictionary meaning of the words, "boxes", " cartons"and" containers" is fully consisteant with the stand taken by the petitioner. According to him, "boxes" and "cartons" are used to describe big containers and the public at large are also aware of the articles answering to such description. While the cigarette packet cannot be called a cigarette box or a cigarette carton and that a box or a carton cannot be equated with a packet. Hence the cigarette packet can only be a container or an article made of paper and wholly exempted from duty under the said Notification and will not fall within the exception relating to printed cartons or printed boxes. It is pointed out that prior to the introduction of Tariff Item 17(4) by the Finance Bill of 1982 the outer shells and the inner slides were classified under Tariff Item 68. THEse two items were exempted from the whole of duty by virtue of Notification No. 118/75 C.E., dated 13-4-1975 under which the goods intended for use in the factory were exempted. A cigarette packet cannot be subjected to duty twice over inasmuch as duty of excise is paid on cigarettes along with the packet which is being treated by Excise Authorities as essential packing constituting manufacture of cigarettes. Even otherwise, the outer shells and inner slides cannot be subjected to any separate assessment. Cigarettes are assessable to duty on value determined in accordance with Section 4. THE cost of outer shells and slides are already included in the selling price of the cigarettes which are essential part of the same. Hence it is already covered by the excise duty on the price of cigarettes. It is the further case of the petitioner that the Central Board of Excise has no jurisdiction to add to or amend or alter the notification issued under the Act and Rules thereunder and has no jurisdiction to interfere with quasi judicial functions of Statutory Excise Authorities. Hence the directive and decision of the Board dated 7-4-1982 to all Collectors, Central Excise, is illegal and without jurisdiction. Consequently the directive issued by the second respondent to the petitioner is illegal, arbitrary and without jurisdiction. Hence these writ petitions.

(3.) THE points that arise for consideration in these writ petitions are :-