Decided on January 01,1979

Union Of India And Ors Appellant
Cmc India Ahmedabad Respondents


- (1.) This judgment will govern the disposal of First Appeal No. 128 of1972, Special Application No. 97 of 1972 and First Appeal No. 970 of1973, as the main question involved in each of these cases is - whetherUltimarine Blue is chargeable with duty under Item 14 (1) (5) of theFirst Schedule to the Central Excise and Salt Act, 1944, hereinafterreferred to as 'the Act'.)
(2.) We have already pointed out that the main question to the decided inthose three tters is whether ultermarine blue is chargeable with dutyunder Item No. 14 (1) (5) of the First Schedule to the Act. According tothe plaintiffs in both the suits, their products is known as ultramarineblue in the commercial world and also by those who use it. They have alsoalleged that ultramarine blue is mainly used for the purpose ofheihtening the whiteness of textiles and ofhter matters. It is never usedfor the purpose of painting, colouring or dyeing. the petitioners inSpecial Civil Application No. 97 of 1972 have also come out with the samecase. As observed above, the plaintiffs in Civil Suit No. 75 of 1972 werepaying duty on the above product and they raised the dispute on the pointonly after the decision the City Civil Court in Civil Suit No. 271 of1968. It is not disputed that so far as the plaintiffs in Civil Suit No.271 of 1968 are concerned, the excise authorites called upon it to paythe duty on the above product only on the basis of thr report of thechemical analyser in respect of its product. It appears from the writtenstatement filed by the defendants in Civil Suit No. 75 of 1972 that thedecision to levy duty on ultamarine blue manufactured by the plaintiffs,hereinafter referred to as M/s. Sindhu Chemical Products was made on thebasis of the report of analysis of the product made by the Deputy ChiefChemist, Bombay, who came to the conclusion that the product in questionwas inorganic pigment in the form of powder. In view of what is statedabove, it becomes evident that in both the aforsaid cases, the decisionof the defendats to charge duty on the product in question rests only onthe result of the chemical analysis. The respondents in their affidavitin reply in Special Civil Application No. 97 of 1972 assert thatultramarine blue being a pigment is chargeable with duty. They have notindicated in the above reply thatthey have taken the above view on thebasis of the report of the chemical analyser. It is not clear as to onwhat basis they took the above view. The petitioners have alleged theirproduct Nilsin Ultramarine Blue-Jal Jyoti is indentical to the productultramarine blue-manufactured by M/s. C.M.C. India, the plaintiff inCivil Suit No. 271 of 1958. It is submitted by Mr. Vakharia, the learnedAdovcate for the petitioners that the above allegations of thepetitioners have remined uncontroverted in view of the defective type ofthe affidavit in reply filed by the respondents. In this connection, hehas pointed out that the affidavit has not been properly varified andhence, itis difficult to say as to on what basis, the person making theabove affidavit denies the truth of the statements made by thepetitionerts in their petition.
(3.) According to him, the affidavit in reply cannot be treated as anaffidavit in the real sense of the term. In support of his abovearguments, he has relef on the dicision of the Supreme Court in the caseA.K.K. Nambiar v. Union of India and another, 1970 3 SCR 121.;

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