TaxTMI 
TaxTMI 
1978 (2) TMI 206
X X X X Extracts X X X X
X X X X Extracts X X X X
....m of Excise Duty for the period 22nd June, 1968 to 20th April, 1972. The payments were, however, made under protest. Details of the payment have been shown year-wise in the Statement annexed to the Plaint. 3. It is further stated that the plaintiff had challenged the order of the Assistant Collector about the levying of the Central Excise Duty, before the Collector, on the ground that tufted woollen carpets were not subject to the levy of such duty. The appeal failed but tile statutory revision, referred to the Government of India was, however, accepted on 14th April, 1972. The said order was passed by the Joint Secretary, Government of India, Ministry of Finance (Department of Revenue & Insurance). It was candidly held therein that the woollen tufted carpets were not excisable goods. 4. After the passing of the order in revision, the Plaintiff applied to the Assistant Collector for the repayment/refund of the amount of ₹ 7,31,153.08 which had been paid under coercion and/or mistake. As the Assistant Collector did not pass any Order on the application, the Plaintiff served a Notice under Section 80 of C.P.C. It is stated that on failure to receive any reply, the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....? 3. Alternatively, was the Defendant obliged to repay or refund the amount in suit as soon as the Order dated 14th April, 1972 was passed, holding that no excise duty was payable in respect of carpets manufactured by the Plaintiff ? 4. It is now open to the Defendant to urge that excise duty is payable in respect of carpets manufactured by the Plaintiff and, if so, has this Court jurisdiction to determine whether excise duty is payable or not ? 5. Were there any Orders passed on 31st March, 1973, whereby the Assistant Collector of Central Excise, Faridabad, held that carpets manufactured by the Plaintiff were subject to excise duty and the amount in suit was not refunded and, if so, do such orders have legal effect notwithstanding the Order dated 14th April, 1972 ? 6. Whether this suit has become infructuous or the Plaintiff had become disentitled to get relief by reason of Orders dated 31st March, 1973, passed a few days after the suit was instituted ? 7. Whether the carpets manufactured by the Plaintiff are not excisable as claimed by the Plaintiff and if so, can this question be gone into by this Court and does it have any effect on the claim in su....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... amended. 12. Against the said Order, the Plaintiff filed an appeal to the Collector under Section 35 of the Act, which was dismissed on 1st May, 1971 (Annexure I). The Plaintiff then preferred a Revision Petition to the Government of India under Section 36 of the Act. This statutory revision was ultimately allowed by Shri D. N. Kohli, Joint Secretary to the Government of India, Ministry of Finance (Department of Revenue & Insurance) on 14-4-1972. This Order dealt with various contentions of the parties at length. 13. After the Revision Application was allowed by Government of India, the Plaintiff made an application on 3-7-1972 (Annexure L) for the refund of the excise duty paid by the Company. It was at the tune of ₹ 7,45,534.14. The Assistant Collector did not pass any order to refund the amount. Notice under Section 80 of the C.P.C. given by the Plaintiff on 24-1-1973 did not elicit any reply. In the circumstances, the Plaintiff filed the present suit for recovery of ₹ 7,31,153.08 paid as excise duty to the Department. 14. It may be observed here that on the date of the suit instituted in this Court on 26-3-1973, the Assistant Collector had not pas....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and another Vs. Union of India and Ors. 1962, 2 SCR 644 and has tried to impress that in matters of taxation, there is no question of res judicata because if fresh matter comes to the notice of the taxing authority, it then has the power to re-assess or reconsider the amount of tax Payable. 18. There is no row over the principle of law decided in these cases. But the ratio of these decisions has no application to the facts of the present case, where no additional evidence has been collected. Here only the interpretation of expression, "Woollen fabrics" occurring in item No. 21 of the First Schedule of the Act is involved. All the cases cited on behalf of the defendant do not in any way elucidate or advance the question of interpretation of woollen fabrics, which was directly in issue in the earlier case. 19. Another submission made on behalf of the defendant is that this Court has no jurisdiction to take cognizance of such disputes as the Central Excises and Salt Act, 1944, lays down a complete procedure for dealing with such matters. It is argued that under the said Act, an appeal lies to the Collector from the Order of the Assistant Collector (See Section 35) and the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of the Supreme Court made in Firm, Seth Radhakrishan Vs. Administrator, Municipal Committee, Ludhiana (AIR 1963, S.C. 1547) where the question of jurisdiction of a Civil Court came up for consideration over the levy of terminal tax on Salt imposed by the Municipal Committee. lt was held there that "under Section 9 of the Code of Civil Procedure the Courts shall have jurisdiction to try all suits of similar nature except suits of which cognizance is either expressly or impliedly barred. A statement therefore expressly or by necessary implication, can bar the jurisdiction of Civil Court in respect of a particular matter and that the mere conferment of special jurisdiction on a Tribunal in respect of the said matter does not itself exclude the jurisdiction of the Civil Courts". It was further held in the same case that "there is also an equally well settled principle, governing the scope of the Civil Courts' jurisdiction in a case where a statement created a liability and provided a remedy. Even in such cases, the Civil Courts' jurisdiction is not completely ousted. A suit in a Civil Court will always lie to question the Order of the Tribunal created by statement even if its Orde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it stands on an absolutely different footing. 28. There is thus no force in the contention that the present suit was not competent unless the Plaintiff had gone through the same rigour and had obtained a decision in revision under Section 36 of the Act. There is also no force in the submission that because the application made before the Assistant Collector had not yet been decided, the suit was premature or that after the decision of the application for refund of the amount by the said Officer on 31-3-1973, the suit already instituted, had become infructuous. The Order passed by the Government of India in the statutory revision had evidently much wider scope, and, therefore, covered even these cases which related to the subsequent periods. Thus, in view of the said Order, no excise duty was payable on woollen tufted carpets. 29. The same controversy was later raised by the Department as a refund of the amount already paid was not being allowed and secondly, further demand had also been made to pay the excise duty for the subsequent periods. These acts of the department were, therefore, not legally justified, hence unsustainable. I, accordingly, hold that the Order of G....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of woollen fabrics indisputable woollen tufted carpets are not woven. They are base fabrics, i.e. neither of wool nor of cotton, but are of jute. lt is argued that the entire controversy about interpretation of the expression woollen fabrics appearing in Entry No. 21 have been set at rest in the case of Gujrat Woollen Felt Mills (supra) and that this Court is bound by the authoritative decision of the Supreme Court. 35. In order to find out whether or not the evidence had been produced in the Gujrat case, the paper book was got produced in this Court. It has been found that in that case evidence had been produced in the shape of Affidavits. The question of interpretation of expression woollen fabrics occurring in Entry No. 21 was the main theme before the Supreme Court. ln the present case, the interpretation of the same item has arisen before this Court. The ratio of the Supreme Court decision is very clear and definite. I respectfully follow the said interpretation of woollen fabrics in the present case, as it applies on all fours. 1 accordingly hold that woollen tufted carpets in question, being non-woven are not excisable and, therefore, the defendant cannot claim the pay....