Full Judgment Text
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PETITIONER:
ORIENT PAPER MILLS LTD.
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT:
25/02/1966
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
CITATION:
1966 AIR 1754 1966 SCR (3) 657
ACT:
Supreme Court Rules, 1950, Schedule III, Part 11, Entry 2-
Claim for refund of a definite amount of excise duty-
Disallowed by Excise authorities-Appeal to Supreme Court
under Art. 136-Court fee payable.
HEADNOTE:
The appellant claimed refund of a specific amount as excess
amount of excise duty recovered from it by assessing it
under a wrong item, but the excise authorities rejected the
claim and the appellant’s revision application to the
respondent was also dismissed. In its application for leave
to appeal to this Court under Art. 136, the appellant
challenged the order of the respondent on the assumption
that the order under appeal had been passed by the
respondent acting as a Tribunal, and reiterated its claim
for the specified amount. The appellant contended that only
fixed court fee of Rs. 250 was payable because it was not
possible to estimate at a money value the subject matter in
dispute and not fee on an ad valorem basis at the rate
prescribed in Entry 2 in Schedule 111, Part 11 of the
Supreme Court Rules.
HELD : The claim made by the appellant was for a definite,
ascertained amount and therefore it is not a case where it
is not possible to estimate at a money value the subject
matter in dispute. Nor can it be said that if the appeal
before this Court succeeds, it would still be necessary for
the appellant to take any further steps to recover the
amount of refund, because, this Court can direct the
appropriate authorities to grant the refund. Therefore, the
appellant should pay court fee as prescribed by Entry 2 in
Part 11 of Schedule III of the Supreme Court Rules, on an ad
valorem basis. [661 G-H; 662 E, F]
Order in Civil Appeal No. 212 of 1956, explained.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 659-664 of
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1965.
Appeals by special leave from the judgment and order dated
October 5, 1963 of the Government of India, Ministry of
Finance, Department of Revenue, New Delhi in Central Excise
Revision Applications Nos. 720-725 of 1963.
A. K. Sen, B. P. Maheshwari and M. S. Narasimhan, for the
Appellant.
N. S. Bindra and B. R. G. K. Achar, for the respondent.
The Judgment of the Court was delivered by
Gajendragadkar, C. J. What is the appropriate amount of
court-fees payable on the petition of appeal filed by the
appellant, Orient Paper Mills Ltd., under Schedule III, Part
II of the Supreme Court Rules, 1950, that is the short
question of law which arises for our decision in this
matter.
The appellant carries on the business of manufacturing and
selling paper and paper board, and is registered as such
under the 657
658
Central Excise and Salt Act, 1944 (No. I of 1944)
(hereinafter called ’the Act’). The respondent, the Union
of India, charges excise duty under Rule 9 of the Rules
framed under the Act on the paper manufactured by the
appellant before the manufactured goods are cleared out of
the appellant’s ware-house. Among various kinds of paper
which the appellant manufactures and sells, are included
’Packing and Wrapping’ and ’Printing and Writing Paper’.
The aforesaid ’Printing and Writing Paper’ is of various
varieties and it includes Machine Glazed Poster popularly
known as M.G. Posters.
Prior to the Finance Act of 1961, the printing and writing
paper was classified and charged under item 17(3) of the
Schedule to the Act and the wrapping paper was charged under
item 17(4) of the Schedule; even so, the duty on both the
items was the same, viz., 0 . 22 P. per kilogram. The duty
under item 17(4) was, however, enhanced by the Finance Act
of 1961 -and increased to 0 - 35 P. per kilogram from the
1st March, 1961. About six months after the enhanced duty
came into force, the Excise authorities decided that the
M.G. Poster manufactured by the appellant should be charged
under item 17(4) and demand notices were issued accordingly
for the different months during which the said paper was
manufactured. In consequence of this demand, a total sum of
Rs. 2,79,175-27 P. was collected from the appellant as
difference in the duty leviable for the assessment periods
covered by the several appeals which are pending in this
Court and with which we are concerned in the present
proceedings.
As a result of these demands, the appellant had to pay the
duty which it did under protest. Thereafter, it claimed a
refund under Rule II of the Rules framed under the Act.
This Rule prescribes a period of three months within which a
claim for refund can be made "in consequence of the sum
having been paid through inadvertance, error or
misconstruction". The appellant urged that the duty on the
goods in question was chargeable under item 17(3) and not
under item 17(4) of the Tariff Rules. One of the reliefs
claimed by the appellant in its petitions of appeal was that
the Excise authorities be directed to assess the poster
paper under item 17(3) and not under item 17(4) and to make
a direction as to the refund of the excess amount recovered
from the appellant. The excess amount of which refund was
thus claimed came to Rs. 84,928-84 P. This application was
rejected by the Assistant Collector of Central Excise,
Cuttack Division, Cuttack.
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Against the said decision, the appellant preferred an appeal
to the Collector of Central Excise under s. 35 of the Act.
In its appeal memo to the Collector, the appellant had
claimed that the order under appeal should be revoked and
Rs. 84,928-84 P. should be refunded to it. A further claim
was made by the appellant that the excise authorities should
be directed to assess the poster paper
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under item 17(3) and not under item 17(4). The said appeal
was rejected by the Collector of Customs on 28-7-1962.
The appellant then moved the respondent by way of revision
under S. 36 of the Act. In its revision application, the
appellant made prayers similar to those which it had made
before the Appellate Authority. This revision application
was also dismissed. It is against this revisional order
that the appellant has come to this Court by special leave
under Art. 136 of the Constitution. It appears that in the
various paragraphs of its application for leave, the
appellant has reiterated its claim for refund of money
recovered from it in excess of the amount legitimately due
from it and has challenged the order of the Excise
authorities rejecting its claim in that behalf. On these
facts, the question which arises is: can the appellant be
permitted to pay a court-fee of Rs. 250 on its petitions for
appeal, or is it necessary that it ought to pay court-fees
at the rate prescribed by sub-clause (2) of entry 2 in
Schedule III, Part II of the Supreme Court Rules?
This question was referred by the Deputy Registrar of this
Court to the Hon’ble Judge in Chambers. The learned Judge
referred to the respective contentions raised before him by
the parties and considered the practice in regard to the
levy of court-fees in allied matters. He took the view that
the practice with regard to levy of court-fees was in a
state of flux and it required full consideration. That is
why he directed that the matter be adjourned to Court. It
is as a result of this direction made by the Hon’ble Judge
in Chambers that this matter has come before us for disposal
on the question of court-fees.
Let us cite the relevant provisions of the Supreme Court
Rules in relation to court-fees in this matter. Enrty 2 in
Part 11 of Schedule III reads thus:-
"Lodging and registering Petition of Appeal:
Where the amount or value of the
subject-matter in dispute is Rs.
20,000 or below that sum ..Rs. 250-00
For every Rs. 1,000 in excess of Rs. 5 . 00 for every
Rs. 20,000 thousand rupees or
part thereof.
In cases where it is not possible to
estimate at a money value the
subject-matter in dispute Rs. 250 . 00"
There is a proviso to this entry which reads thus:
"Provided:
(1) that the maximum fee payable in any case shall not
exceed Rs. 2,000 and
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(2) that where an appeal is brought by special leave
granted by this Court credit shall be given to the appellant
for the amount of court-fee paid by him on the petition for
special leave to appeal".
Mr. Sen for the appellant contends that it is not possible
to estimate at a money value the subject-matter in dispute
in the present appeals; and so, court-fee of Rs. 250 would
be adequate and appropriate for each one of them. According
to him, the controversy between the parties has relation to
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the proper classification of the goods and this being the
subject-matter of the appeals, it is incapable of valuation.
Mr. Sen presented his argument in an alternative form. He
urged that even if the appeals are allowed, this Court will
merely determine the proper classification of the goods and
make a declaration that on the basis of the said proper
classification, the appellant should be entitled to the
refund. Even after such a declaration is made, the
appellant would be required to adopt some other procedure to
make a claim for actual recovery of the said refund. It is
on these two grounds that Mr. Sen rests his case that Rs.
250 would be the appropriate and adequate court-fees for
each one of these appeals.
In support of this contention, Mr. Sen has also referred to
the practice prevailing in this Court in respect of certain
categories of appeals where court-fee of Rs. 250 has been
consistently accepted as adequate and appropriate. In Civil
Appeal No. 212 of 1956 (The State of Madras v. Messrs. Tata
Iron and Steel Co. Ltd.) an appeal was filed by the State of
Madras on a certificate granted by the High Court from an
order passed by it under S. 12-B of the Madras General Sales
Tax Act, 1939 allowing the assessee’s claim for refund of
the amount of sales tax computed on the turn-over of a
stated sum of money. Overruling the stand taken by the
office that court-fees should be paid on an ad valorem
basis, Bhagwati, J. who was then the Hon’ble Judge in
Chambers directed that "it is not possible to estimate the
value of the claim in this case and the record does not show
it. Therefore, the court-fee should be paid on that basis".
Accordingly Rs. 250/- was accepted as proper court-fee.
Similarly, in Civil Appeal No. 54 of 1958 (Indian Hume Pipes
v. Its Workmen) though the appeal related to a definite and
ascertainable sum of money in respect of payment of bonus,
dearness allowance, etc. Bhagwati, J. directed that "I am
inclined to think that Rs. 250/- fixed court-fee should be
charged. , The award merely determines the liability;
recovery of the dues requires other procedure to be adopted
for the purpose; vide section 33(c)".
In accordance with the directions thus given by the Hon’ble
Judge in Chambers in these two matters, the practice in this
Court
661
consistently has been that in matters coming to this Court
in reference proceedings under the relevant provisions of
the Sales Tax Acts and the Indian Income-tax Act, 1922 as
well as against awards made under the Industrial Disputes
Act, 1947, Rs. 250 has been accepted as proper court-fee.
In Civil Appeal No. 148 of 1954 (Mls. Bhatnagar & Co. Ltdv.
Union of India), similar court-fee of Rs. 250/- was accepted
where the appellant challenged the order of the High Court
passed under Art. 226 refusing the appellant’s prayer for a
direction for amendment of the period of the validity of
import licences. This plea was accepted even though the
appellant had estimated his loss at Rs. 6,00,000/- if the
relief claimed in that behalf by him was not granted. It is
on these precedents and the practice which they show that
Mr. Sen has relied in support of his argument that the
category of’ cases in which the present appeals fall should
be similarly treated and Rs. 250/- should be taken as
adequate and proper court-fee.
Reverting then to the first contention raised by Mr. Sen,
can it be said that the present appeals fall in the class of
cases where it is not possible to estimate at a money value
the subject-matter in dispute. In our opinion, the answer
to this question must clearly be in the negative. We have
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already set out the nature of the relief claimed by’ the
appellant in its application before the Assistant Collector
of Central Excise, as well as in subsequent appeals and
revision application. The claim clearly and unambiguously
is for a refund of Rs. 84,928 . 84 P. It is true that a
claim for this refund is sought to be justified on the basis
that the assessment should be levied under item 17(3) and
not under item 17(4); but the decision of the point as to
which item applies to the paper in question, serves to
support the appellant’s claim for a refund; and so, the fact
that the issue as to which item applies cannot be said to
determine the character of the present proceedings before
the Appellate Authority or that of the appeals before this
Court. The proceedings, in terms, are to recover the stated
amount of refund and since the said claim has been rejected
by the Excise authorities, in the present appeals the same
claim is made by the appellant before this Court.
Therefore, we think it is impossible to hold that these
appeals are cases where it is not possible to estimate at a
money value the subject-matter in dispute.
Besides, Mr. Sen is not right in contending that if the
appeals. filed by the appellant before this Court succeed,
it would be necessary for the appellant to take some further
steps to recover the amount of refund claimed by it. In
case this Court holds that the basis on which the assessment
has been made in respect of the paper manufactured by the
appellant is erroneous in law, the necessary consequence of
the said decision would be to issue a direction that a
refund of the appropriate amount should be allowed. These
662
appeals have been brought to this Court under Art. 136 of
the Constitution on the assumption that the orders under
appeal have been passed by the respondent which acted as a
Tribunal in entertaining the revision applications within
the meaning of the said Article; and so, it would be open to
this Court to direct, if the appeals succeed, that the
appropriate authorities should grant the appellant’s claim
for refund.
Then as to the precedents on which Mr. Sen relies, the posi-
tion with regard to appeals brought to this Court in Sales-
tax or Income-tax matters, such as the case in the State of
Madras v. Messrs. Tata Iron and Steel Co. Ltd.(1), is
entirely different. In such proceedings, the High Court
which entertains the reference ,acts purely in an advisory
capacity and when the appeal is brought to this Court
against the decision of the High Court on such reference,
the capacity of this Court is exactly the same as that of
the High Court. The proceedings continue to be proceedings
in which either the High Court or this Court expresses an
advisory opinion, and so, it can well be said that the
subject-matter in such cases cannot be estimated at a money
value. Whether or not similar considerations will apply to
the appeals brought to this Court by special leave against
awards made under the Industrial Disputes Act or against
orders passed by the High Court in writ jurisdiction, it is
unnecessary for us to decide in the present proceedings.
So far as the present appeals are concerned, we feel no
difficulty in holding that the claim made by the appellant
is for a definite, ascertained amount and it is the
rejection of the said claim by the respondent in exercise of
its revisional jurisdiction when it rejected the appellant’s
revision applications, that has given rise to the present
appeals. This is a claim which in terms has already been
estimated at a money value, and therefore, there is no basis
for the appellant’s plea that court-fee of Rs. 250/- should
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be held to be adequate and proper in each of these appeals.
We accordingly ,direct that the appellant should pay proper
court-fees as prescribed by Entry 2 in Part II of the Third
Schedule of the Supreme Court Rules, subject, of course, to
the maximum prescribed by clause (i) -of the proviso
thereto.
(1) C.A. No. 212 of 1956.
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