PHOTO-OPTICAL CO PVT LTD Vs. UNION OF INDIA
HIGH COURT OF CALCUTTA
PHOTO-OPTICAL CO PVT LTD
UNION OF INDIA
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(1.)THE petitioner in this Rule is a company incorporated under the Indian Companies act and carries on the business of manufacturing photo flash bulbs with voltage not exceeding 3. It appears that the petitioner as required by the Excise authorities took out a licence for manufacturing photo flash bulbs which are according to the department excisable goods. The petitioner was asked to pay 15% ad valorem plus 10% excise duty in respect of the photo flash bulbs manufactured by it. The duty was paid under protest. Thereafter the petitioner by a letter Annexure B informed the customs Authorities that the Pradip lamp Works, manufacturing identical type of photo flash bulbs, was paying excise duty at the rate of 2 pies for each bulb and accordingly the petitioner prayed for necessary relief. By letter dated 30. 9. 64 (Annexure 'c') the petitioner was informed that the flash bulbs fell under T. C. 32 (1) (i) and thus assessable at 10 pies per bulb. The petitioner was allowed a refund on the basis of the said assessment. Thereafter by a letter dated 24. 1. 66 (Annexure 'd') the petitioner was informed that the photo flash bulb was to be assessed at 2 pies per bulb as the bulb was designed for operation at a voltage not exceeding 5. On the basis of this assessment the petitioner submitted a bill to the respondents for refund of a sum of rs. 26. 708/- being the assessed amount deposited by him on the basis of the earlier assessment. The petitioner was informed by a letter dated 23. 12. 66, annexure E to the petition, that the correct duty was 10 pies per bulb plus 10% special excise duty. Accordingly, the refund claimed was not entertained. Against this order the petitioner company being aggrieved preferred an appeal before the respondent No. 2, and this appeal is pending. It may be mentioned here that in Annexure E it was stated that the bulb manufactured by the petitioner is not miniature bulb and had voltage exceeding 5 and rated capacity of 10 Watts. It further appears that there was a letter issued by the assistant Collector Central Excise, calcutta II Division to the petitioner (Annexure H) wherein it was stated that although the photo flash bulbs manufactured by the petitioner conformed to certain specification laid down for miniature lamps the bulb is not known commercially as miniature lamp and is not entitled to concession provided for in the said tariff item. Accordingly the petitioner was liable to be assessed under Central Excise Tariff item No. 32 (4) at 15% ad valorem duty. The petitioner made a representation against this and ultimately by a letter dated 24th July 1969, Annexure M to the petition, the petitioner was informed as follows : -"dear Sirs," i am to inform you that the Photo flash Bulb manufactured by you and being allowed clearance on provisional assessment has since been classified under TC 32 (4 ). You are, therefore, requested to take clearance of the above goods on payment of duty @ 16% ad-valorem (Basis excise Duty) plus 10% of the basis excise Duty as special Duty. You are further requested to pay duty at the appropriate rate on all the past clearances and finalise the provisional assessment. Yours faithfully, sd/- Illegible, superintendent, Central Excise, group Cal.-II Divn. G. , inspection Unit No. 1. "
(2.)THE petitioner challenged this older as also the earlier orders on various grounds and contended inter alia that the term "electric lighting bulb" does not include photo flash bulb as such bulbs are not designed for general illumination and in the Indian Custom tariff Guide, Tenth Edition, at page 403 it is stated that the term "electric lighting bulbs" extends only to such articles as are designed for general illumination. It was further stated that the light for photo flash bulbs is not produced by electricity but by combustion of a metal foil ignited by battery cell. It was also contended that the levy of excise duty on indigenous photo flash bulb is discriminatory as no such duty is imposed on imported bulbs further the petitioner was entitled to the exemption provided for in tariff item No. 32 being commercially known as miniature lamps. The petitioner also contended that the excise duty charged from Pradip Lamp Works was 2 pies per bulb while the petitioner was charged with much higher rate. The petitioner lastly contended that the impugned order, Annexure M, is not complete order and no reasons have been given by the respondents for not treating the photo flash bulbs under Central Excise tariff Item No. 32 (1) (i) but under item no. 32 (4) and in any event imposition of excise duty prior to 5. 11. 69 is illegal on these allegations and contentions the petitioner moved this Court and obtained the present Rule.
(3.)THIS Rule has been opposed by the respondents by filing affidavit-in-opposition and all material allegations made in the petition are denied. It is denied that there was any over-assessment and it is contended that the assessment made on the photo flash bulbs under Excise Tariff Item 32 (4) is proper, legal and valid. Further the bulbs manufactured by the petitioner are not commercially known as miniature bulbs and the petitioner is not entitled to any exemption. About the rate charged on pradip Lamp Works the respondents stated that they had no knowledge about the assessment on Pradip Lamp Works at the rate of 2 pies per bulb and made no admission in respect thereof. The petitioner further contended that the customs Act and the Tariff Act on the one hand and the Central Excises and salts Act on the other are different statutes with different objectives and the interpretation given in respect of any provision of one statute cannot be imported for interpreting any provision of the other statute. Accordingly the definition of electric bulb as given in the Tariff Act cannot be imported for interpreting the definition of electric bulb in Excise Item No. 32.
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