M.M.Dutt, J. - (1.) The appellant in each of these two appeals is a company and they have challenged the propriety of the judgment of P.K. Banerjee J. discharging the rules nisi obtained by them on their respective applications under Article 226 of the Constitution.
(2.) The appellants carry on business, inter alia, as manufacturers and exporters of the refractories and refractory materials including calcined kyanite. Under Sub-section.(1) of Section 280ZC of the I.T. Act, 1961, a person, who exports any goods or merchandise out of India after 28th February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947, and the rules made thereunder, is entitled to a tax credit certificate for an amount calculated at a rate not exceeding 15% on the amount of such proceeds. Under Sub-section (2) of 280ZC, the goods or merchandise in respect of which a tax credit certificate shall be granted under Sub-section (1) and the rate at which the amount of such certificate shall be calculated shall be such as may be specified in the scheme. In exercise of the powers conferred by Section 280ZE read with Section 280ZC of the I.T. Act, 1961, and of all other, powers enabling it in that behalf, the Central Government notified a scheme, namely, the Tax Credit Certificate (Exports) Scheme, 1965, by a Notification dated August 17, 1965, published in the Gazette of India, Extraordinary, Part II, page 353, dated August 18, 1965. According to Item No. 19 of the table appended to paragraph 3 of the Scheme, " All mineral ores other than iron ore and manganese ore " are entitled to tax credit at the rate of 15% of the sale proceeds received in India when exported to places outside India other than those in Nepal, Bhutan or Sikkim.
(3.) Both the appellants made .several applications in Form "E" for tax credit certificates against various consignments of kyanite. The Assistant Director of Tax Credit (Experts), Calcutta, rejected all the applications of the appellant by his orders, all dated June 10, 18, 1966, holding that kyanite was not a mineral ore within the meaning of item 19 of the table under para. 3 of the Scheme. The appellants being aggrieved by the said orders preferred appeals against the same to the Director of Tax Credit (Exports) under para. 9 of the Scheme, After hearing the representations of the appellants and after considering the written submissions made on their behalf, the Director of Tax Credit (Exports) dismissed all the appeals by his order dated March 31, 1967, holding, inter alia, after reviewing various authorities on the subject, that the definition of "ore" mostly agreed upon and generally accepted was that it was an aggregate of minerals from which a metal could be extracted profitably. It was held by him that kyanite did not fall within the scope of the term " mineral ore " as specified in the Scheme. Thereafter, the appellants moved this court under Article 226 of the Constitution and obtained rules nisi challenging the correctness of the impugned orders. As stated already, the learned judge discharged the rules. The learned judge also took the same view that kyanite was not a mineral ore within the meaning of item 19 of the Scheme, Hence, these appeals.;