PAWAN DISTILLERS Vs. ASSISTANT COLLECTOR CENTRAL EXCISE

JUDGEMENT

(1.) M/s. Pawan Distillers, Kannauj, district Farrukhabad, has sought certiorari for quashing of the order dated 28th July, 1988, passed by the Superintendent, Central Excise, Range Kannauj, by which two approved classification lists effective from 1.4.1987 and 1.3.1988 had been amended classifying the refused Burada under sub-heading 3307.90, and further for Mandmus directing the Central Excise Authorities not to demand any duty on refused Burada under the Central Excises and Salt Act, 1944.

(2.) The dispute in the present case is whether refused Burada is liable to payment of excise duty under the Central Excises and Salt Act, 1944. The petitioner's case is that it is only a waste and is not a marketable commodity, and that it is not even a by-product, Consequently. no excise is payable on the same. According to the petitioner, the question of payment of excise duty arises where an article is a manufactured product.

(3.) The petitioner on the advice submitted a classification list under Rule 173-B of the Central Excise Rules along with manufacture product, viz., Sandal Wood Oil. In the classification list, the petitioner was advised to classify refused Burada under sub-heading 3307.41 and showed the excise duty to be nil. Subsequently, on 1.3.1988, the petitioner submitted another classification list showing that Burada was classified under sub-heading 3307.41 with nil excise duty. Thereafter, on 30.4.1988, the petitioner received a demand-cum-show cause notice under Section 11A of the Central Excises and Salt Act, stating that a sum of Rs. 1,03,893.30 was payable by the petitioner as basic excise duty and Rs. 135.25 as special excise duty. The petitioner thereafter, filed a detailed reply stating, inter alia, that Burada was not a manufactured commodity and, as such, no excise duty was payable, being covered by 3307.41. The case of the petitioner is that on the basis of the amendment of classification list, made by the order dated 28.7.1988 by the Assistant Collector Central Excise, Farrukhabad, the petitioner had demanded excise duty in the sum mentioned above. For the amendment made in the classification list, the averment of the petitioner is that no opportunity had been given. According to the petitioner, the Assistant Collector, Central Excise, had no power to amend or alter the approved/final classification list, without giving proper opportunity to the petitioner.