JUDGMENT
Dhabe, J.
1. These two petitions can conveniently be disposed of by this common judgment as common questions of law and fact arise therein for consideration.
2. Briefly the facts are that in Writ Petition No. 2049 of 1985, the petitioners Nos. 1 to 6 are Owner’s of Oil Mills, who according to them extract oil from washed cotton seeds after subjecting them to the process of bleaching and deodourisation. The petitioner No. 7 which is a public limited company registered under the Companies Act owns a solvent extraction plant and is engaged in extracting oil from oil cakes by the solvent extraction process. As regards Writ Petition No. 133 of 1986, the petitioner therein is a private limited Company Registered under the Companies Act and is engaged in extracting oil from oil bearing materials like rice bran, pulse cake, Mohova cake, Soyabeen cake etc. by the solvent extraction process in its solvent extraction plant at Khamari-Amgaon, district Bhandara.
3. The respondent No. 2 issued show cause notices to the petitioners in Writ Petition No. 2049 of 1985 under Section 3 of the Vegetable Oils Cess Act, 1983 (for short ‘the Cess Act’) for levy of cess on vegetable oil extracted by the petitioners Nos. 1 to 6 from the oil seeds and by the petitioner No. 7 from the oil cakes. He also issued show cause notice under Section 3 of the Cess Act to the Petitioner, in Writ Petition No. 133 of 1986 for levy of cess on oil extracted from oil cakes and rice bran. Section 3 of the Cess Act, it may be seen, provides for levy of cess on vegetable oil for the purpose of the National Oil Seeds and Vegetables Oils Development Board Act, 1983 (for short the Board Act) There is however, no separate definition of the expression “vegetable Oil” given in the Cess Act but as provided in Section 2(2) of the said Act, the definition of the said expression given in Section 3(4) of the Board Act would be applicable in construing the said expression used in Section 3 of the said Act. The grievance of the petitioner in these writ petitions is that the levy of cess upon the vegetable oil for the purposes of the Board Act under Section 3 of the Cess Act is unreasonable and excessive. Moreover, according to them the vegetable oil extracted by them is not covered by the definition of the said expression under Section 3(4) of the Board Act. They have, therefore, challenged in these writ petitions the aforesaid show cause notices issued to them by the respondent No. 2.
4. As regards the ground of challenge to the constitutional validity of the Board Act and the Cess Act, the petitioners have not pressed the same because the matter is no more res integra in view of the decision of the Supreme Court in Writ Petitions Nos. 4165 of 1985 and other connected petitions-Messrs. New Maharashtra Flour Mills and Ors. v. Union of India, rendered on 25th April, 1986. What, therefore, remains to be considered in these writ petitions is a ground on merit, viz., whether the oil extracted by the petitioners in the writ petitions is ‘vegetable oil’ within the meaning of Section 3(4) of the Board Act, but before doing that it is necessary to consider first the preliminary objection raised on behalf of the respondents.
5. It is submitted on behalf of the respondents that in view of the decision of the Supreme Court in the Case of Assistant Collector of Central Excise v. Dunlop India Limited. , this Court should not exercise its writ Jurisdiction under Article 226 of the Constitution of India and should relegate the parties to their statutory remedies under the Cess Act. A perusal of paragraph 3 of the judgment of the Supreme Court in the aforesaid case would show that the Supreme Court has reiterated therein the well-settled law in regard to the exercise of jurisdiction under Article 226 of the Constitution. It has been always a well settled proposition under Article 226 of the Constitution of India that if there is an adequate alternate remedy in existence the High Court should not normally entertain a writ petition in its discretionary jurisdiction under Article 226 of the Constitution of India. The rule of exhaustion of statutory remedies had been always held to be a rule of discretion and not a rule which would affect the jurisdiction of the High Court to entertain a writ petition notwithstanding the availability of an adequate remedy. See-State of U.P. v. Mohd. Norb and M/s. Baburam v. Antarim Zilla Parishad, now Z. P. Muzaffarnagar . Two well-recognised exceptions to the rule of exhaustion of statutory remedies are also pointed out in the aforesaid judgments. Even in the Dunlop Company’s case itself the Supreme Court has pointed out such well recognised exceptions to the normal rule of exhausting of statutory remedies. It has pointed out that where the question of validity of the enactment itself is raised or where the orders are per se without jurisdiction, it is open to the High Court to entertain a writ petition notwithstanding the fact that there is an alternative statutory remedy.
6. Turning to the facts in the instant Writ Petition it may be seen that the petitioners have preliminary moved this Court and the instant Writ petitions are principally admitted on the ground that the Acts under which the cess is levied are unconstitutional which is a ground on which the writ petitions could be entertained notwithstanding the existence of an alternative statutory remedy even as per the decision of the Supreme Court in Dunlop Company’s case cited Supra. It is only because the Supreme Court has repelled the said challenge subsequently that the above contention stands concluded now. However, having entertained the writ petitions although principally on that ground when they came up for final hearing after a long time the question is whether it would be a sound exercise of discretion by this Court to refuse to consider the writ petitions on merits although the facts may not be in dispute and although the decision on the question of law urged in these writ petitions would affect the jurisdiction of the authorities under the Cess Act to issue show cause notices to the petitioners. In our view, a sound exercise of the discretion of the High Court under Article 226 of the Constitution in such circumstances lies in not deciding such a question of law and jurisdiction if the facts relating thereto are in dispute thus relegating the parties to their statutory remedies if the facts are decide the same without relegating the parties to the statutory remedies if the facts are not in dispute between the parties rather than deciding the same after the statutory remedies are exhausted which step itself would be dilatory and unjust.
7. Examining in this light the question of exercise of discretion by this Court, it is clear to us and the petitioners also agree that there is a dispute on facts about the process of extraction of oil from oil seeds and as such the case of the petitioners in regard to the show cause notices for levy of cess upon the same cannot be considered in the writ jurisdiction of this Court. Similar is the case of oil derived from rice bran, the subject of W.P. No. 133 of 1986. The petitioners are therefore relegated to their statutory remedies under the Cess Act for adjudication in that regard. However, as regards the cess of the petitioner No. 7 in Writ Petition No. 2049 of 1985 and of the petitioner in Writ Petition No. 133 of 1986 about the extraction of oil from the oil cakes the facts are not in dispute. It is not in dispute that the above petitioners use the solvent extraction plant for extracting oil from the oil cakes. The question, therefore to be considered is only of the construction of the definition of the expression “vegetable oil” given in Section 3(4) of the Board Act. Since the matter is already entertained and is pending in this Court, we feel that it would be just and proper to settle the controversy in regard to the above question by our decision particularly when the facts are not in dispute and the above question of law would be ultimately raised in this Court again after the statutory remedies are exhausted. The contention on behalf of the respondents that the petitioner should be relegated to their statutory remedies on this question also cannot therefore be accepted.
8. Turning to the merits of the controversy it may be seen that the whole controversy turns round the definition of the expression ‘Vegetable Oil’ given in Section 3(h) of the Board Act. For the sake of convenience the said definition is reproduced below :
“3(h) : “Vegetable oil” means any oil produced from oilseeds, or any other oil bearing materials of plant origin, and containing glycerides but does not include any such vegetable oil which has been subjected to any proceeding subsequent to the recovery of oil”.
A perusal of the said definition would show that it falls into three parts. The word used being ‘means’ the said definition itself provides a dictionary for the meaning of the expression “Vegetable Oil”. According to the said definition it means (a) any oil produced from oil seeds or (b) any oil produced from any other oil bearing material of plant origin, and containing glycerides but (c) does not include any such vegetable oil which has been subjected to any processing subsequent to the recovery of the oil.
9. The learned counsel for the petitioners has urged before us that the oil extracted from the oil cakes in the instant cases through the process of solvent extraction plant which is obviously not covered by the first clause ‘any oil produced from the oilseeds’ is also not covered by the second clause ‘any oil produced from any other oil bearing material of the plant origin’ also. The contention, however, on behalf of the respondents is that the oil extracted from the oil cakes in the instant case is covered by the second clause referred to above.
10. In construing the second clause of the definition of the expression “vegetable Oil” the controversy between the parties is about the use and meaning of the word “origin” occurring in the said clause. Both sides have brought to our notice the dictionary meaning of the word “origin”. The meaning of the said word in New Webster’s Dictionary is “The beginning of any thing; the commencement; fountain; source; that from which anything primarily proceeds; parentage; lineage. “In Roosett’s Dictionary the meaning given is commencement, beginning source, derivation”. In Corpus Juris Secundum, Volume 67 the meaning given is “The first existence or beginning; the birth; hence parentage, ancestry, that from which anything primarily proceeds; the fountain; spring cause occasion.”
11. As regard the construction of the second clause “any other oil bearing material of plant origin, the submission on behalf of the Petitioners is that there must be a direct nexus between the oil bearing material and the plant, such as its limbs, flowers or treats barks etc. from which the oil is extracted. It is however the submission on behalf of the Department that the word ‘Origin’ indicates that it is not necessary to have a direct nexus and if after tracing back the origin of the material in question from which the oil is extracted, the origin is traced as the plant then it is covered by the said definition. In support of the above contention, the learned counsel for the Department has brought to our notice clause (b) of sub-section (2) of Section 9 of the Board Act dealing with the functions of the Board in which according to him the development of the products of oil seeds by recommending measures for improvement of their marketing is also covered.
12. In considering the above submission on behalf of the parties, it would be worthwhile to briefly notice the Scheme of the Board Act and the Cess Act. As its preamble shows, the Board Act is enacted to provide for the development under the control of the Union of the oil seeds industry and for other matters connected therewith. The constitution of the Boards is provided under the said Act and it is clear from Section 9 that it is charged with the functions of promotion and development of the oilseeds industry and vegetable oils industry. Chapter III of the Act makes provisions for raising finances for carrying out the purposes of the Board. There is however no provision for raising finance by levying any cess under the Board Act. The cess is leviable only under the Cess Act under which the charging section is Section 3 in which it is provided that for the purposes of the Board Act a duty of excise on vegetable oils produced in any Mill in India shall be leviable at the rates stipulated therein. By sub-section (4) of section 3 of the Cess Act, the machinery provided for levy and collection of the duty of excise under the Central Excise and Salt Act, 1944 (for short “the Excise Act”) is incorporated in relation to the levy and collection of the duty of excise upon vegetable oils under the Cess Act.
13. It is clear from the scheme of the Cess Act that the duty of excise is levied thereunder only upon the vegetable oils. It is clear from Section 9(1) of the Board Act read with its preamble as also its title that the object of the said Act is the development of the oil seeds industry and the vegetable oils industry. The above two industries are separate industries for whose development the Board Act is enacted. Section 9(2) particularises the functions of the Board in relation to the above two industries. It may also be seen that apart from Section 3 of the Cess Act, there are other modes of raising the finances provided in Chapter III of the Board Act for carrying out the objects of the Board under the said Act and the fund created thereunder is also known as the “Oil seeds and vegetable oils development fund” which would also show that the two industries are treated separately under the Board Act. It would not, therefore, follow from Section 9(2)(b) of the Board Act that because the marketing of the products of oil seeds is enumerated as one of the functions of the Board, which according to the department would include marketing of oil cakes being products of oil seeds, the said provision can not be treated as an intrinsic aid in construing the second clause in the definition of the expression “Vegetable Oil” namely “any other oil bearing material of plant origin” or in particular the words “plant origin”.
14. In our view, there is however an intrinsic aid to construct in the definition clause itself of the expression “vegetable oil” for construing the expression ‘oil product from any other oil bearing material of plant origin’. It would appear from the clause of exclusion in the said definition that refined oil is not intended to be covered by the said definition. It would therefore appear that wherever any processing is required to be carried out by reason of which alone the oil can be extracted, the intention seems to be that such oil should not be covered by the definition of the word ‘vegetable oil’ under Section 3(h) of the Board Act. It may be seen that the word used in the definition clause is ‘produced’ and not ‘derived’ which would mean that the oil is produced from the oil bearing material by simple methods of deriving it. It would thus appear that definition covers natural oils produced directly from the plant such as it limbs, flowers, seeds, barks etc., the development of which and not of the highly processed oil is the object of the Board Act.
15. In the instant case, it is not in dispute that the oil can be extracted from oil cake only by the process of solvent extraction plant as alleged by the petitioners. It may also be seen that the oil cake is itself an independent commercial commodity different from the oil seeds which is independently liable to duty under the Excise Act. The learned counsel for the petitioners has in this regard relied upon the decisions of the Supreme Court in the case of State of Punjab and Ors. v. Chandu Lal Kishori Lal (AIR 1969 S.C. 1703). It is held by the Supreme Court in the said judgment that the seeds separated by ginning process cannot be said to be cotton itself or part of the cotton. It was held therein that the cotton seeds and cotton were two distinct commercial goods. In S. Kannappa Mudaliar v. State of Madras (21. Sales Tax Cases 41), The Madras High Court held that in interpreting the words of common usage appearing in a taxing statute, the meaning which is popular rather than one which is technical has to be adopted. It was held in the said case that the oil can be extracted from many seeds by adopting a skilled technical process, but it would not be proper to conclude legally that seeds from which oil can be extracted by the adoption of such process can be deemed and equated to oil-seeds as understood in common parlance. For instance, it was held that the oil extracted from the coconuts, groundnut kernel and Ajwan by a skilled technical process cannot be called extraction of oil from the oil seeds as such. A similar view is also taken by the Madhya Pradesh High Court in the case of Commissioner of Sales Tax v. Bakhat Rai & Co. (XVIII) S.T.C. 285).
16. It is thus clear that the oil cake from which the oil is extracted by the skilled technical process of a solvent extraction plant is a distinct commercial commodity. It is further clear that the oil cakes are not directly derived from the plant as such but they are by-products of the oil seeds after the oil is extracted from them. The origin of the oil cakes in the popular sense is thus the oil seeds. In our view in the context of the provisions of the Taxing Statute, the word ‘origin’ should be given the meaning which would be consistent with its popular sense. The said word as used in the definition clause in question would mean “the source or the derivation” and not the first existence and the beginning, which meaning sought to be given on behalf of the Department to the word is farfetched and is not consistent with the ordinary use of the said word in commercial parlance. As rightly urged on behalf of the petitioners there must be direct and not remote nexus between the oil bearing material and the plant so that it can be said in such cases, for instance as in the case of oil derived from the limbs, flowers, barks etc. that their origin is the plant. It is, therefore, difficult for us to accept the contention raised on behalf of the Department that the oil derived from oil cakes is from the oil bearing material of plant origin within the meaning of Section 3(h) of the Board Act. We thus accept the contention raised on behalf of the petitioners that as regards the oil derived from the oil cakes by the process of solvent extraction plant no cess can be levied upon the same under Section 3 of the Cess Act as it is not covered by the definition of the expression ‘vegetable oil’ given in Section 3(h) of the Board Act. The show cause notices given by the Department in regard to the oil derived from the oil cakes therefore need to be quashed.
17. Before parting with this judgment, we may pertinently note that a bill is introduced in the Parliament to repeal the Cess Act so as to abolish all levy upon the vegetable oil because such a levy was to the detriment of the small producers of vegetable oil in the country.
18. In the result, the instant writ petitions are partly allowed. As regards the question of oil derived from the oilseeds and rice bran the petitioners in these writ petitions shall raise their contentions before the competent authorities which had issued the show cause notices to them and pursue their statutory remedies in that regard. However, as regards the question of levy of oil derived from oil-cakes the show cause notices issued to them in that regard are quashed in both these writ petitions and it is declared that the petitioners are not liable to pay any cess under Section 3 of the Cess Act upon the oil derived by them from the oil cakes through the technical process of solvent extraction plant. Rule in the above terms No order as to costs in these writ petitions.