JUDGMENT
Sujata V. Manohar, J.
1. The petitioners manufacture, inter alia, tractors and tractor drawn agricultural implements. Tractor drawn agricultural implements are manufactured by the petitioners at their factory at Nagpur. The present petition challenges the levy and collection of excise duty under tariff item 68 of the Central Excises and Salt Act, 1944, on agricultural implements which are manufactured by the petitioners and which are required to be used as attachments to agricultural tractors. According to the petitioners these implements fall under tariff item 34A as it existed at the relevant time. The levy and collection of excise duty in the present case is in respect of a period commencing from 1st November, 1975, till the filing of the petition in 1979. Since 1979 tariff item 34A has been amended, as a result of which, admittedly, the agricultural implements now do not fall under tariff item 34A but under the residual tariff item 68.
2. The petitioners contend that the agricultural implements manufactured by them are accessories of agricultural tractors and are therefore covered by tariff item 34A of the Central Excises and Salt Act of 1944 at the relevant time, prior to its amendment in 1979.
3. Tariff item 34 deals with motor vehicles and tractors. Sub-item II of tariff item 34 deals with tractors including agricultural tractors. Tariff item 34A at the relevant time was as follows:
Item Description of Rate of No. goods duty 34A PARTS OF MOTOR VEHICLES AND TRACTORS INCLUDING TRAILERS Parts and accessories, not elsewhere specified, Twenty per cent of motor vehicles and tractors, including ad valorem. trailers. Explanation I: The expression 'motor vehicles' has the meaning assigned to it in item No. 34. Explanation II: The expression 'tractors' shall include agricultural tractors. Explanation II of tariff item 34A makes it clear that agricultural tractors are included in the expression "tractors" in tariff item 34A. Under this item parts and accessories, inter alia, of agricultural tractors are exigible to tax as specified in that item.
4. Agricultural tractors have certain distinctive features which distinguish them from ordinary tractors. Agricultural tractors are required to use various agricultural implements like a wood board plough, a disc plough, a cultivator, etc., and hence they are fitted with a three-point linkage, hydraulic lift housing, and position and draft control. On industrial tractors a hydraulic system with draft control and position control is not provided because these industrial tractors are used for hauling and material handling purposes only. The implements manufactured by the petitioners are designed for being used with an agricultural tractor. These implements such as a mounted disc harrow, a mounted tandem disc harrow, a mounted offset disc harrow, a spring-loaded tiller, a rigid line cultivator, a heavy duty tiller, a mounted mould board plough, a seed planter-cum-fertiliser distributor, etc., cannot be used except with an agricultural tractor. It is the case of the petitioners that these implements are accessories of agricultural tractors.
5. Whether an item which is designed to be used along with another item can be considered as an accessory or not will depend upon the facts of each case. Murray’s Oxford English Dictionary defines “accessory” as:
Coming as an accession; contributing in an additional and hence subordinate degree; additional, extra, adventitious.
An accessory is an adjunct or accompaniment and can add to the performance of the main item. In Webster’s Third New International Dictionary, “accessory” is defined as:
a thing of secondary or subordinate importance (as in achieving a purpose or an effect): an adjunct or accompaniment…: an object or device that is not essential in itself but that adds to the beauty, convenience or effectiveness of something else.
The dictionary meaning of the term “accessory” was cited with approval by the Supreme Court in the case of Annapurna Carbon Industries Co. v. State of Andhra Pradesh . [See in this connection also Commissioner of Sales Tax v. Bhave & Sons reported in [1981] 47 STC 318 (Bom).]
6. In the present case the implements in question are required to be used along with agricultural tractors and they are designed for such use. They thus add to the effectiveness and proper utilisation of agricultural tractors in agricultural operations. They can therefore be considered as accessories of agricultural tractors. Mr. Setalvad for the petitioners drew my attention to a decision of the Allahabad High Court in the case of Sales Tax Commissioner v. Lachman Singh reported in [1972] 30 STC 372 where an oil-can and steel file? were considered as accessories of a chaff-cutter. It is not necessary to go so far in the present case. The implements are designed for use with an agricultural tractor and they add to the effectiveness of agricultural tractors. They can therefore be considered as accessories of agricultural tractors.
7. My attention was drawn to a notification issued in respect of items covered by tariff item 68. Tariff item 68 is the residuary item which includes all other goods not elsewhere specified (but excluding certain items set out therein). Under a notification dated 1st March, 1975, and amended from time to time certain goods are excluded from the whole of the duty of excise leviable under item 68. The notification contains a schedule of items so exempted from the payment of the whole of the duty of excise. Item 11 in this notification is as follows:
11. Agricultural implements and parts thereof but excluding–
(i) power operated agricultural implements and parts thereof; and
(ii) implements designed for use as attachments with tractors or power tillers and parts thereof.
This notification would suggest that agricultural implements designed for use as attachments with tractors are covered by tariff item 68 and these items are excluded from exemption under the exemption notification. A notification of this type, however, cannot govern the interpretation of tariff entries. A class of goods can fall under item 68 only if it is not covered by any other tariff entry. In the present case, however, these implements fall under tariff entry 34A as they are accessories of agricultural tractors. They cannot, therefore, fall under tariff items 68. The exemption notification therefore cannot be availed of in order to exclude such agricultural implements from tariff item 34A.
8. This interpretation of tariff item 34A is supported by the Indian Standard Code of Practice for Installation of Agricultural Wheeled Tractor, published by the Indian Standards Institution. Indian Standards Institution’s specifications are often resorted to for the purpose of deciding how tariff entries are to be applied to various commodities in the market. See in this connection Union of India v. Delhi Cloth and General Mills . Paragraph 2.1 defines an agricultural tractor as follows:
2.1. Agricultural tractor.–A self-propelled vehicle having wheels or tracks, designed primarily to operate trailed or mounted agricultural implements and machines, including trailers, and to supply power to operate them with the vehicle itself in motion or remaining stationary.
This definition shows that an agricultural tractor is designed primarily to operate various agricultural implements and machineries. Paragraph 4 deals with matching implements and it is as follows:
4. Matching implements.
4. 1. As the tractor is only a prime mover, it can be handled efficaciously when right type of implements are used with it. It is, therefore, essential that the supplier should recommend the matching implements and should give adequate information regarding type of implements along with their specifications and the addresses of the manufacturers and the suppliers.
This would indicate that agricultural implements are designed to be used with agricultural tractors and agricultural tractors can be effectively used only when agricultural implements are used with such tractors. Such implements must, therefore, be considered as accessories of agricultural tractors.
9. After 1979 tariff item 34A is amended. It now enumerates the particular accessories (inter alia) of tractors which are covered by tariff item 34A. Agricultural implements used with agricultural tractors are not so enumerated. Therefore, after 1979 such implements are not covered by tariff item 34A; For the relevant period, however, the petitioners are entitled to obtain a refund of the duty paid in excess of the duty prescribed under tariff item 34A.
10. In the present case, Mr. Sethna, learned Counsel for the respondents, has submitted that the petitioners are not entitled to any refund because, for the period in question, they have sold agricultural implements to various customers from whom they must have charged prices which covered the extra excise duty paid. To refund the amount to the petitioners now would amount to their unjust enrichment. This submission cannot be accepted at all. The respondents have levied excise duty without any authority of law. In the case of Maharashtra Vegetable Products Pvt. Ltd. v. Union of India reported in 1981 ELT 468 (Bom) at page 472, a Division Bench of this Court held that the contention that a direction issued by this Court under Article 226 is likely to result in unjust enrichment of the petitioners is required to be considered in two aspects. Firstly, a defence of unjust enrichment would not have been available to the Union in a civil suit. In such a suit money recovered without the authority of law would have to be refunded. The second aspect that the Court will bear in mind is whether justice lies on the side of the petitioner. The Court rejected the proposition that in every case where the manufacturer had paid excise duty and had passed it on to the customer his claim to recover monies from the Government should be rejected. The Division Bench emphasised the observations of the Supreme Court in the case of D. Cawasji and Co. v. State of Mysore reported in 1978 ELT (J 154) and said that refund was denied in that case because in earlier litigation the party had not claimed a refund. A multiplicity of unnecessary legal proceedings should be avoided. Therefore the petitioners could not be allowed to split up their claims and file writ petitions piecemeal. The petitioners were therefore denied a refund due to them. Hence in the case of Cawasji & Co. 1978 ELT (J 154) the refund had not been withheld on the basis of unjust enrichment of the petitioners. The State is, therefore, under an obligation to refund monies which have been recovered without authority of law. Only in exceptional circumstances can the refund be denied if the Court strongly considers it unjust to do so. (See in this connection also Wipro Products v. Union of India 1981 ELT 531).
11. Mr. Sethna submitted that in another decision of this Court one of the Judges of the Division Bench had differed from his brother Judge and referred the issue to a larger Bench. Apart from producing a cyclostyled copy of the judgment of one of the Judges from which copy the judgment of the other Judge had been torn out, Mr. Sethna did not give any relevant reference of the two judgments. He also submitted that he was not bound to produce the other judgment. It is not possible for me to rely upon such partial production of some cyclostyled copy of some judgment.
12. In any case, it is difficult to invoke this doctrine in the present case. The petitioners had paid duty from 1st March, 1975. On 27th October, 1976, they applied for a refund for the earlier year. Under Central Excise Rule 11 read with Rule 173-J, which was then in force, the petitioners were entitled to apply for refund of duty erroneously paid for a period of one year. The petitioners were, therefore, entitled to apply for refund of duty paid from 26th October, 1975, till 27th October, 1976.
13. The application of the petitioners was rejected by the Assistant Collector by his order dated 1st June, 1977. The petitioners filed an appeal dated 23rd August, 1977, which was dismissed by the Appellate Collector on 24th July, 1978. Thereafter the present petition has been filed on 18th January, 1979. In these circumstances the petitioners had applied for a refund of duty as from 27th October, 1975, within the prescribed time. They cannot be denied the benefit of refund applied for by them within time on the ground of “unjust enrichment”.
14. For the period from 1st March, 1975, to 26th October, 1975, the petitioners claim to have paid duty under a mistake. This mistake is said to be discovered by them in October, 1976. There is nothing in the petition to indicate how this mistake occurred or how it was discovered. The petition was filed on 18th January, 1979, i.e., more than 3 years after the period in question. It would not, therefore, be proper to grant the petitioners any refund for the period from 1st March, 1975, to 26th October, 1975. The petitioners have submitted that limitation in a suit, had it been filed, would have run from the discovery of mistake, i.e., from October, 1976. They have submitted that their claim for the prior period would also have been in time in view of the mistake that was discovered in October, 1976. They have relied upon a decision in the case of Shri Vallabh Glass Works Ltd. v. Union of India, . From the material before me, however, it seems that an application for refund was made by the petitioners in October, 1976. There is no other material in support of the petitioners’ contention that they discovered the mistake in October, 1976. Since the provisions of the Limitation Act do not apply to writ proceedings, it is not necessary for me to decide the exact date when the petitioners discovered the mistake. But looking into all the circumstances of the case, the ends of justice will be met if the petitioners are granted a refund from 26th October, 1975, till the coming into operation of the amended entry 34A.
15. Before parting with the case I would like to record that Mr. M.I. Sethna, learned Advocate for the respondents, apart from submitting that he adopted the reasoning given in the impugned orders, was not able to render any assistance on the merits of the matter. He stated that this was because he had been briefed in the matter only on the same day. If what he states is correct, it shows gross negligence on the part of the instructing Advocate concerned on behalf of the respondents. The matter was specifically mentioned on 23rd August, 1984, by the petitioners in the presence of the Advocate of the respondents who was them briefed, and hearing was, by consent, fixed for today. In spite of this advance notice, it is regrettable that the instructing Advocate has not chosen to brief the counsel to appear for the respondents in good time so that the case of the respondents can be properly presented in Court.
The rule is accordingly made absolute in terms of prayer (b) with the following modification:
The amount of refund to which the petitioners are entitled will be for the period 26th October, 1976, till 28th February, 1979, the latter being the date up to which the old item 34A was in force before it was amended.
Secondly as a result of the interim orders passed in the petition, the petitioners have not paid excise duty under item 68 as from 1st March, 1979, till 31st May, 1979. The amount payable by the petitioners for this period will be adjusted against the refund payable to the petitioners for the period 26th October, 1975, to 28th February, 1979, and the balance amount will be refunded to them. The respondents to calculate the amounts and grant the refund within 8 weeks from today. The respondents to pay to the petitioners costs of the petition. The bank guarantees given by the petitioners pursuant to the interim orders passed on 23rd January, 1979, to stand discharged.