Ajit K.Sengupta, J. - (1.) The short question which calls for determination in this appeal is whether Ultramarine blue manufactured and marketed by the appellant is liable to Duty under Tariff Item No. 141(5) of the First Schedule to the Central Excises and Salt Act, 1944. The description of the goods in Tariff Item No. 141(5) of the Act is "Paints and Enamels not otherwise specified".
(2.) In the Writ application filed by the appellant a learned Single Judge of this Court held that the said product manufactured and marketed by the appellant is liable to Excise Duty. In coming to the aforesaid conclusion the learned Single Judge relied on a decision rendered by Chittatosh Mookerjee, J. (as he then was) in Nilsin Company v. Collector of Central Excise, Calcutta and Orissa and Others reported in. In that case it was held that 'Ultramarine blue' is understood by the people conversant with the product as pigment i.e. as a colorant.
(3.) In the case of Nilsin Company (supra) a judgment of the Division Bench of Gujarat High Court in Union of India and Ors. v. C.M.C. India, Ahmedabad reported in 1979 (4) E.L.T. (J 298) was relied on by the Writ Petitioner. In that case the question was whether ultramarine blue is chargeable with Duty under Tariff Item No. 14. 1(5) of the First Schedule to the said Act. The Division Bench came to the conclusion that Ultramarine blue is not excisable with Duty under the said tariff item. It may be mentioned that Gujarat High Court by the same judgment allowed the Writ petition filed by M/s. Nilsin Company and directed Union of India to refund the Excise Duty levied for a period of three years prior to the filing of the Writ petition upon the said product. Gujarat High Court however granted certificate of fitness to appeal to the Supreme Court under Article 133 of the Constitution. Chittatosh Mukher-jee, J. referred to the said judgment but did not express any opinion on the aforesaid decision. The learned Judge observed as follows : "2. On 20th August, 1971, a learned Judge of the City Civil Court, Ahmedabad, had decreed a civil suit brought by M/s. C.M.C. India, inter alia, for declaring that the product ultramarine blue manufactured by the said plaintiff was not a pigment to common people, businessmen and consumers, and, therefore, the plaintiff's said product was not excisable under Item No. 14.1(5) of the First Schedule to the Central Excises and Salt Act, 1944. The learned Civil Judge also granted consequential relief by way of permanent injunction against the Union of India and others defendants of the suit. We understand that the High Court at Gujarat had subsequently dismissed the appeal preferred by the Union of India and others against the said decision of the learned Civil Judge, City Civil Court, Ahmedabad. The said High Court also reversed the decision of the trial court in another suit for similar reliefs brought by Jaynal Tarachand and others and decreed the suit. The learned Judges of the Gujarat High Court by the same judgment allowed a writ petition filed by M/s. Nilsin Industries and another and directed the Union of India to refund the excise duty levied for a period of three years prior to the filing of the writ petition upon the petitioner's product ultramarine blue. It is stated that the above matters are now pending before the Supreme Court.";