Super Rubber Works vs Assistant Collector of Central Excise

This writ petition is directed against the order of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi dated 1-6-1984. The

facts which are necessary for disposal of this writ petition are as follows :- The petitioner is carrying on business as manufacturer of reclaimed

rubber. His product was classified by the Assistant collector of Central Excise, Coimbatore as one falling under Tariff Item 68. Aggrieved by the

same, the petitioner filed an appeal before the Appellate Collector of Central Excise, Madras, who accepted the petitioner''s contention and held

that the products would fall under Tariff Item 16-A. The department filed an appeal before the Tribunal at Delhi. The Tribunal reversed the order

of the Appellate Collector on two grounds. The Tribunal relied on the report of a Chemical Examiner in which a finding is given by the Chemical

Examiner that the product will not fall under Tariff Item 16-A. Secondly, the Tribunal held that the order passed by it on the same day in the case

of M/s. Bharat Rubber Regenerating Company Ltd. [1984 (18) E.L.T. 85 (Tri.)] would apply to the petitioner also and consequently, the

Collector''s appeal was allowed. The Tribunal held that the product would fall under Tariff Item No. 68.

In this writ petition, the petitioner is confining his prayer to one for quashing the order of the Tribunal and remanding the matter for fresh disposal

on the following grounds :- (1) The Tribunal has erred in relying upon a note appended to the report of the Chemical Examiner after the disposal of

the matter by the Appellate Collector. The petitioner states that the note was not in existence previously and the Appellate Order itself refers to the

entirety of the report of the Chemical Examiner and relief on it. (2) The Tribunal ought to have given an opportunity to the petitioner to point out

that the case of M/s. Bharat Rubber Regenerating Co. Ltd. is different from the petitioner''s case, as the process of production is entirely different.

If the Tribunal had given him an opportunity, the petitioner would have proved that the case of Bharat Rubber Regenerating Co. Ltd. cannot be put

on the same plane with that of the petitioner.

The respondents'' counsel contends that the writ petition is itself not maintainable as an appeal would lie to the Supreme Court u/s 35L of the

Central Excises and Salt Act against the order of the Appellate Tribunal. It is also submitted by learned counsel for the respondents that this Court

has in W.P. No. 2921 of 1984 expressed the opinion that a writ petition in such circumstances is not maintainable.

A copy of the order in W.P. No. 2921 of 1984 dated 23-4-1992 has been placed before me. I find that Raju, J. has placed reliance on the

judgment of S. Ramalingam, J. in S. Champalal Vs. Union of India, . Learned counsel for the petitioner contends that the judgment will not apply to

the present case as this will not fall u/s 35L of the Act. u/s 35L(b) of the Act, an appeal shall lie to the Supreme Court from an order passed by the

Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of

goods for purposes of assessment. According to learned counsel for the petitioner, this is not a case in which the rate of duty of excise is called in

question nor is the value of goods for purposes of assessment called in question. Learned counsel submits that the appeal to the Appellate Tribunal

was u/s 35B(1)(b) of the Act and not u/s 35D of the Act as submitted by learned counsel for the respondents. From the orders of the authorities

below, I find that this is not a matter in which a question has arisen with reference to the rate of duty, and this is a matter which relates to the

classification of goods. At any rate, it is not necessary for me to finally hold that the petitioner could not have filed an appeal to the Supreme Court

against the order of the Appellate Tribunal in view of the fact that the petitioner is not requesting this Court to consider the merits of the case or

dispose of the matter on the facts of the case. The limited submission is that the petitioner has not been given sufficient opportunity to meet the two

grounds on which the Appellate Tribunal has rested its conclusion and if that is give to him, that will be sufficient.

I find that the petitioner''s submission that the Chemical Examiner''s report as it was presented originally before the Assistant Collector and the

Appellate Collector did not contain the note, which was at the bottom of the report is correct. The report was communicated to the petitioner on

his request along with a covering letter dated 15-6-1982 by the Superintendent of Central Excise. At that time, the report merely, mentioned that

the sample was in the form of black thick flexible piece of size 25 cm. x 34 cm. and it was composed of rubber carbon black and sulphur. The

Appellate Collector also referred to the report in his order and placed reliance thereon. If the note had really been in existence in the report at that

time, he would certainly have mentioned it.

Apart from that, the note which is appended to the report merely states that the product will not fall under Tariff Item 16A. It is not for the

Chemical Examiner to give a finding on that question. The Chemical Examiner was only required to set out the composition of the product and the

nature thereof.

Hence, then the note was sought to be relied on by the Appellate Tribunal, it ought to have given an opportunity to the petitioner to contest the

same. Learned counsel for the respondents states that even when the memorandum of appeal was presented before the Appellate Tribunal, a copy

of the report was enclosed and reliance was placed thereon. According to him, sufficient opportunity had been given to the petitioner. I cannot

agree. Unless the specific attention of the petitioner was drawn to the note appended to the report, the petitioner could not be expected to have

had knowledge that the report of the Chemical Examiner given early had undergone a change when it came to the Appellate Tribunal. Nothing

appears on record as to whether the attention of the petitioner was drawn to the note appended to the report.

The second contention of the petitioner that he was not given an opportunity to put forth his submission as to whether the case of M/s. Bharat

Rubber Regenerating Company Ltd., was similar to his case is also well founded. According to the petitioner, his appeal was heard and orders

were reserved. Thereafter, the appeal of M/s. Bharat Rubber Regenerating Company Ltd., was heard and orders were passed thereon on 1-6-

1984. Relying on that order, the Appellate Tribunal chose to pass an order on the same day in the appeal filed by the petitioner. The Appellate

Tribunal ought to have given an opportunity to the petitioner and heard him as to whether the two cases were similar or at any rate, the Appellate

Tribunal could have heard the appeals together so that the petitioner could have had an opportunity to distinguish his case from that of M/s. Bharat

Rubber Regenerating Company Ltd., if that was so.

In the circumstances, I am of the view that the principles of natural justice have not been followed and the order of the Appellate Tribunal is

vitiated inasmuch as the petitioner has not been given proper opportunity to contest his case. The order of Raju, J. in W.P. No. 2921 of 1984 will

not apply to the facts of this case. Obviously, what was questioned in the writ petition before him was the order of the Appellate Tribunal on its

merits. The learned Judge has taken the view that the writ petition was not maintainable. In the present case, the order of the Tribunal is vitiated for

its failure to give sufficient opportunity to the petitioner. The petitioner does not seek to canvass the merits of the order of the Appellate Tribunal

before this Court. Hence, this writ petition can be entertained.

It is next contended by learned counsel for the respondents that the remedy of the petitioner is to have approached the Appellate Tribunal for

rectification of the mistake apparent on the face of the record u/s 35C(2) of the Act. I am not quite sure whether the matter would fall u/s 35C of

the Act. Even assuming that a remedy was available to the petitioner under Sec. 35C of the Act, I am not inclined to throw out this writ petition on

the ground that the petitioner had an alternative remedy. The petition was admitted in 1984 and it was pending in this Court for over eight years.

After such a long lapse of time if the petitioner is driven to another forum with some other petition to get redressal of his grievance, it would be a

grave traversity of justice.

In the circumstances, the writ petition is allowed and the order of the Customs, Excise & Gold (Control) Appellate Tribunal dated 1-6-1984 is

quashed and the matter is remanded to the Tribunal. The Appellate Tribunal shall give sufficient opportunity to the petitioner and rehear the appeal

and dispose of the same in accordance with law. There will be no order as to costs.