PINAKI CHANDRA GHOSE,J. - (1.) THE question arose in this writ application is whether Sodium Petroleum Sulphonate (hereinafter referred to as "sps") to be treated as "detergent" and whether the petitioner is entitled to a refund of 90 per cent of the tax paid on the sale of the said SPS under the West Bengal Industrial Promotion (Assistance to Industrial Units) Scheme, 1994 (hereinafter referred to as the "said scheme" ).
(2.) THE petitioner is manufacturer of SPS and sold SPS within the territory of West Bengal and duly paid taxes on the sale of the said SPS. According to the petitioner, the petitioner is entitled to get a refund of the tax paid on SPS under the scheme, inter alia, on the ground that the SPS is a detergent under the serial No. 2 of Schedule "b" appended to the said scheme. Accordingly, the petitioner applied under the said scheme for refund of tax for the quarter October 1, 1998 to December 31, 1998. At the time of such application under the said scheme the petitioner also approached the Directorate of Cottage and Small Scale Industries to mention that the SPS is another description of detergent. The Directorate of the Cottage and Small Scale Industries described SPS as detergent in the Permanent Registration Certificate issued by the said Directorate to the petitioner. According to the petitioner, the State of West Bengal accepted and treated SPS as detergent.
(3.) LEARNED Senior Counsel appearing on behalf of the petitioner submitted that under the Central Excise Tariff Act, 1985 "detergent synthetic" has been classified under the Tariff heading No. 34. 02 which speaks of "organic Surface-active agents (other than soap), surface-active preparations, washing preparations (including auxiliary washing preparations) and cleaning preparations whether or not containing soap". He further contended that the petitioner originally did not classify the SPS as organic surface-active agent. In 1983, the excise authorities issued a show cause notice on the petitioner and duly pointed out that the chemical test of the product of the petitioner was found to have contained the ingredients tariff item 15aa of the First Schedule of Central Excises and Salt Act, 1944 and renumbered as 34. 02. Therefore, according to him, the Central Government has been treating the product manufactured by the petitioner as "organic surface-active agent" under the said tariff heading No. 34. 02 and claiming duty on that basis. He further contended that the Customs Department of the Central Government are treating these goods as detergent and claiming customs duty under the Customs tariff item No. 34. 02. He further drew my attention to the Customs Tariff Act commodity index at page 1252 wherefrom it appears that the Sodium Petroleum Sulphonate falls under Customs tariff item No. 34. 02. Therefore, according to him there is no dispute of the product of the petitioner, namely "organic surface-active agent".;