ORDER
1. The petitioner herein has produced a feature film under the title `Adavi Manushulu’ in Telugu. According to it, `Purana Purush’ in Hindi, `Kattu Manidan’ in Tamil and `Silayugathil Sundarigal’ in Malayalam are feature films, based on the original Telugu `Adavi Manushulu’. It has claimed exemption under a Notification No. 275/77- C. E., dated 12-8-1977 of the Central Government, issued in exercise of the power under the Central Excises and Salt Act, 1944, as amended, for 12 prints in each language. The petitioner was, however, served with a show cause notice from the office of the third respondent- Collector of Central Excise, Madras, in C. No. III/10/505/78 I. A., dated 24-8-1978 stating that all the 55 prints of the film in different languages were to be treated as one and the same feature film and, therefore, exemption from duty under the said Notification was available only for the first 12 prints, out of the total of 55 prints and for the remaining 43 prints, the petitioner was required to pay duty under Tariff 37(2) of the Central Excise Tariff. The petitioner was accordingly called upon to show cause why a differential duty of Rs. 2,07,375/-in respect of 43 prints of the feature film, already cleared by them, should not be demanded under Rule 10 of the Central Excise Rules. The petitioner replied stating that the said pictures were not produced by it and that they were produced by M/s. P. S. R. Pictures, Madras-17, that it was entitled to the benefit of the duty exemption for the first 12 prints in respect of each of the versions of the picture and detailed the grounds of its claim. The Collector of Central Excise (the third respondent), however, passed an order on 13-1-1980, holding that the differential duty was to be paid by the petitioner under Rule 10 of the Central Excise Rules 1944. The petitioner then appealed against the said order of the Collector before the Central Board of Excise and Customs. the Appellate Authority under its order dated 3-1-1981, accepted the claim of the petitioner for exemption benefit under the above- mentioned notification. The Government of India, Ministry of Finance, however, called upon the petitioner to show cause why the order in appeals, passed by the Central Board of Central Excise and Customs, be not set aside and the order in original dated 13-10-1980, passed by the Collector of Central Excise, the third-respondent, be restored. The matter eventually went to the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and in review accordingly, it has set aside the order in appeal passed by the Central Board of Central Excise and Customs and restored the order of the Collector of Central Excise, the third respondent, dated 13-10-1980.
2. The petitioner has alleged that each language picture is an independent feature film, their titled are different, title piece of each picture is different, different censor certificates are issued for each version, separate censorship fee is paid in respect of each picture, separate serial number for the number of copies is given for each version of the picture, gate passes mentioned clearly the language of each picture, the length of the picture itself vary from one language to another, except that the length of Hindi and Malayalam version remains the same, separate raw stock permits for each version of the picture is used. It is contended by the learned Counsel for the petitioner accordingly that the common negative of the visual should not be viewed as the only feature film and the film in each language, for the reasons afore-mentioned, should be accepted as independent feature film. In the return on behalf of the respondents, the petitioner’s assertions are not disputed, except that it is asserted that all the 55 prints of the feature film were taken from one master negative, the story pertained to the pre- historic man of the stone- age, for which no language media was used, the entire communication was through various sounds, expressions and gestures, which were common in all language versions of the film, and,
“Since the language media has been dispensed with in the feature film, there was no necessity to change the sound track. All the prints taken in four different languages are absolutely identical except for the first few meters where introductory places were attached in Tamil, Malayalam and Hindi versions were displayed in the script of the respective languages. The difference in length was due to the above- said reason. Further, the feature films cleared under Tamil, Hindi and Malayalam versions cannot be termed as dubbed in the real sense. The conversation in one language has to be translated and re-drafted in other scripts and for each language a separate sound track has to be incorporated in the positive.”
The return, however, has a detailed assertion that the impugned order is appealable under Section 35L of the Central Excises and Salt Act, 1944. The petitioner could file an appeal in the Supreme Court against the order of the Central Government and not a Writ Petition. Learned Counsel for the petitioner has contended that the Appellate Tribunal’s powers are circumscribed by two rules or exceptions by way of provisos to Section 35B of the Act, which alone governed its jurisdiction and which says that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order passed by the Collector (Appeals), under Section 35A, if such order relates to a case of loss of goods……., a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods, which are exported to any country or territory outside India and similarly in the case of an order passed by the Central Board of Excise and Customs, when the dispute is other than a dispute as to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue or is a dispute involving the difference in duty or the duty itself. According to him, the suo motu power or revision, under the law then prevalent, empowered it to call for and examine the record of any proceeding to satisfy itself as to the correctness, legality or propriety of such decision or order in very general terms. The proceeding under suo motu revision before the Central Government was transferred to the Tribunal under Section 35P(2) of the Act, which provides that on such transfer to the Tribunal, it may proceed with such proceedings or matter from the stage at which it was on that day as if such proceeding or matter were an appeal filed before it, provided that if any such proceeding or matter relates to an order where in any disputed case other than the case where a determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved or the amount of fine or penalty determined by such order does not exceed Rs. 10,000/-, the Central Government shall continue to deal with the same. According to him, thus it was necessary that the Tribunal determined at the first instance whether the dispute was one in respect of an order passed by the Central Board of Revenue, the case was one, where the question involved has a relation to the rate of duty of excise or to the value of goods for purposes of assessment and if it was not so, should it not refused to exercise its discretion? According to the learned counsel for the petitioner, the Tribunal has gone by the view of the Central Government that there were only minor variations in the length of the feature film in each language and that the said variations were due to the fact that titles in the different languages had been added at the commencement of each language version and therefore, the mere fact a separate censorship certificate had been obtained for each language would not make the film in each language a separate film. The only consideration of the contentions by the Tribunal is as follows:
“On the other hand, Shri Gopal Prasad contended that the fact that a separate censor certificate had been issued for each of the four language version would suffice to establish that each language version was a separate film. It is in this connection that he relied upon the fact that whenever duty exemption was being granted in respect of films as under Notification No. 49/74, dated 1-3-1974, Notification No. 78/79, dated 1-3-1979, Notification No. 17/81, dated 16-2-1981 and Notification No. 210/76, dated 17-7-1976, the stipulation in each of the notifications was on the certification by the film censors as a condition precedent for the exemption. He therefore, contended that the fact of separate certification by the Board of Film Censors would establish the separate identity of each language version and hence each of the four versions in the present case would be a separate film for the purpose of Notification No. 275/77. But it may be noted that all the notifications noted earlier dealt with claims for exemption on the basis that the film concerned could be classified as a documentary film or a news reel or a predominantly educational film or to be used only for archival study or reference purposes or meant for entertainment of children. Since, the eligibility for exemption therefore thus depended on the classification of the film into any of the above-said categories, the notifications themselves naturally referred to certificates by the Central Board of Film Censors to that effect. In the present instance there is no dispute that the original Telugu version as well as the subsequent version in the other language were all feature films only. Therefore, the mere fact that each of them had been issued with a separate censor certificate would appear to be of no relevance for concluding that each of them was accepted to be a separate film by the Censor Board also. In any event, the notification in question (No. 275/77) makes no reference to any such certification by the Censor Board proof of acceptability thereof as separate films each.
Shri Gopal contends that the difference in length would itself establish that each language version was a separate film. But, this contention would overlook the fact that so far as the main picture is concerned, the visual or the audio portion was exactly the same in the versions for the reasons stated in the order of the Collector in the paragraphs extracted earlier. The difference in length was solely due to the fact that introductory piece were attached in the Tamil, Malayalam and Hindi version, displayed in the script of the respective languages. This difference in length is also of a small percentage only compared to the length of the film itself.
As earlier mentioned the written submissions proceeded as if each language version was a separate dubbed version and as if the sound track in each version was different from the original Telugu version, such a claim is evidently unfounded as can be gathered from the order of the Collector. It is to be noted that neither in the appeal to the Collector nor in the reply to the review notice had it been urged by the respondents that the version in each language is a separate dubbed version with a distinct sound tract, the visual portion being common in all versions.”
Learned Counsel for the petitioner has submitted accordingly that the Tribunal’s order has given no answer to the specific finding of the Board that although the prints had been taken from the same master negative, language wise each film was different from the other not only in the total length but also in regard to the language in which introductory portion was added and separate censor certificate had been produced by the assessee for each language film, thus it was a case for liberal classification.
3. Learned Counsel for the revenue has, however, contended that it is of no consequence if the Tribunal has not said what has been the nature of the dispute before it, as it is a common ground that the dispute has been whether the different language versions were separate films and thus the assessee was entitled to the concessions in duty in accordance with the notification in this behalf, that is to say, Notification No. 275/77-C. E., dated 12-8-1977 and any exemption in relation to duty thus would have a relation to the rate of duty of excise or the duty itself. He has contended that the issue being whether the assessee was/is entitled to the exemption of duty under the said Notification, the Tribunal was entitled to take its own view and thus decide on the basis of the facts before it, whether the assessee should have been granted the exemption or not. Since the Tribunal has found that on the facts, as found in the case of the films produced by the assessee, that he was not entitled to the exemption, the Tribunal has committed no such error that this Court can exercise its extraordinary writ jurisdiction to interfere with it.
4. The first contention of the learned counsel for the appellant should not detain us, for a dispute of this kind, in respect of which a suo motu revision had been taken up by the Central Government and which stood transferred under Section 35P(2) of the Act, the Tribunal was required to proceed from the stage at which it was transferred to it. Whether it was a case for exercise of discretion, if the dispute was not related to the rate of duty of excise or to the value of goods for purposes of assessment or the difference in duty or the duty itself, is hardly relevant in such a case.
5. In course of the hearing of this Appeal, there has been some attempt to find out as to what is the meaning of the expression `feature film’ in the notification concerned, documentary films are covered by Notification No. 49/74-C. E., dated 1-3-1974, as amended by Notification 112/77-C. E., dated 18-6-1977, Cinematograph films exposed, intended for entertainment of children, are covered by Notification No. 210/76-C. E., dated 17-7-1976. Duty rate of feature films not exceeding 4000 feet in length, advertisement shorts and films exposed are covered by the Notification 275/77-C. E., dated 12- 8- 1977, as amended from time to time. The last notification says,
“In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 327/77-C. E., dated 15th July, the Central Government hereby exempts cinematograph films, exposed, falling sub-item 11 of Item No. 37 of the First Schedule to the Central Excise and Salt Act, 1944 (1 of 1944), and specified in Column (2) of the Table below, from so much of the duty of excise leviable thereon, as in in excess of the duty specified in the corresponding entry in column (3) or, as the case may be, column (4) thereof.
———————————————————————-
Sl. Description Amount of Amount of duty for
No. films mad wholly in black and
or partly in
white colour
----------------------------------------------------------------------
(1) (2) (3) (4)
----------------------------------------------------------------------
in rupees per in rupees per
print of print of
picture. picture.
1. 1. Feature Film, not exceeding
400 metres in length.
(a) Cleared for home consumption
before the date of first release
of the film for public exhibition,
or within twelve months from
such date, or both.
(i) First 12 prints of each Nil Nil
picture.
(ii) next 12 prints of each 1,500 2,500
picture.
(ii) next 12 prints of each 3,000 5,000
picture.
(iv) nest 12 prints of each 4,500 7,500
picture.
(v) next 12 prints of each 6,000 10,000
picture.
(vi) on the balance 9,000 15,000
(b) Cleared for home 500 1,500
consumption after twelve
months from the date of
first release of the film
for public exhibi-tion.
----------------------------------------------------------------------
..........................
Provided that in determining the number of prints of a feature film eligible exemption under this notification the number of prints of that film already cleared prior to the date of publication of this notification in the Official Gazette shall be taken into account:
Provided further that in determining the number of prints of a feature film eligible for exemption under this notification and cleared on or after the 3rd September, 1983, the number of prints of dubbed version of that film cleared on or after the 3rd September, 1983, shall not be taken into account.
.............................
Explanation 1. - For the purposes of this notification, where a feature film is made partly in black and white and partly in colour, and the colour portion of the said film does not exceed one fifth of the total length, such film shall be deemed to be made wholly in black and white.
Explanation 2. - For the purpose of this notification-
(a) the term `length' does not include such portion of the film as contains the certificate issued by the Central of Film Censors in respect of that film;
(b) the duty rates specified in the said Table for prints shall not include the prints exported out of India;
(c) the date of first release of the film for public exhibition shall be the date of its release in India for home consumption."
`Feature Film’ has received different definition of different purposes. In the Cinematograph (Certification) Rules, 1983, `feature film’ is defined under Section 2(ix) to mean fictionalised story film exceeding 2000 metres in length in 35 mm. or corresponding length in other gauges or on video. In Cine-Workers and Cinema Theatre Workers (Regulations of Employment) Act, 1981, `feature film’ has been defined under Section 2(f) thereof to mean, a full length Cinematograph film produced wholly or partly in India with a format and a story woven around a number of characters where the plot is revealed mainly through dialogues and not wholly through narration, animation or cartoon depiction and not to include advertisement film. The same definition as in Section 2(f) of the Cine-Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981, is incorporated in the Cine-Workers Welfare Fund Act, 1981. In the definitions above, therefore, a fictionalised story film is a feature film, or any cinematograph film with a format and a story woven around a number of characters, where the plot is revealed mainly through dialogues and not wholly through narration, animation or cartoon depiction, is a feature film. Any advertisement film is not a feature film. It is relevant, however, for the instant petition to take notice of the stand of the parties that the negative, although only a visual, with an introductory narration, is a feature film. According to one view, the combination of the visual and the audio is the cinematograph film, that is to say, the feature film. Accordingly to the other view, the visual of the common negative was the feature film and the addition of titles in a different language or the introductory audio was not relevant.
6. The Tribunal has noted,
“Both sides stated that there is no judgment of any High Court or the Supreme Court or of this Tribunal on the disputed issue. No judgment of any Court or Tribunal has been cited before me by either side on the subject.”
Thus, the Court is left with no assistance except to determine on the basis of the approach of the Collector of Central Excise, which has been accepted by the Tribunal that the Tamil, Hindi and Malayalam versions cannot be termed as dubbed films in the real sense in the conventional method of dubbing, on the one hand and the case of the petitioner that if the feature film concerned is one of a visual with titles in a language and narration as to the theme of the film in a particular language, it is thus not different from any dubbed film merely because it is so arranged that the story is not narrated by any of the characters in the film, but is introduced in a separate and different voice and explained by sub-titles. The Tribunal has noted the Collector’s findings in this behalf in its orders, which read as follows:
“The feature film cleared under Tamil, Hindi and Malayalam version cannot be termed as dubbed films in the real sense in the conventional method of dubbing. The conversation in one language has to be translated and re-drafted in other scripts and for each language, a separate sound track has to be incorporated in the positive. The prints so dubbed in different languages are covered by Censor Board certificates and individual sets are entitled to the exemption on the first 12 prints in each language.
In the instance case, all the 55 prints of the feature film have been taken from one master negative. As the story pertains to the pre- historic man of the stone-age, no language media has been used. The entire communication is through various sounds, expressions and gestures. Since the language-media has been dispensed with in the feature film, there was no necessary to change the sound-track. All the prints taken in four different language are absolutely identical except for the first few meters where the case has been displayed in the script of the language under which the set falls. The titles of the feature film although sounding different carry the same meaning.”
The above was before the Board in appeal and it (Board) has noted that the films were covered by different censor certificates for its screening in Tamil, Telugu and Hindi, each film was having separate introduction in different languages, laboratory processing of the films thus for the prints was different and separate and though it was drawn from a common master negative, yet the Board has held,
“……. though the prints have been taken from the same master negative, it appears that language wise each film is different from the other not only in the total length, but also in regard to the language in which introductory portion is covered. As separate censor certificates have been produced for each language film, it is a case of liberal classification. Accordingly, their plea to hold the films in Tamil and Telugu as distinct films covered by separate censor certificates appears to be valid.”
There is no dispute before me that each dubbed version of a feature film shall be treated as a separate film and accordingly be given the benefit of the exemption aforementioned. In the instant case, admittedly Hindi and Malayalam versions are not accepted as dubbed films in the real sense, according to the respondents, for it is not a dubbing in the conventional method of dubbing. There is nothing brought to my notice from which one can under stand as to what the respondents mean by the conventional method of dubbing. If introduction is removed and only prints of the master negative are treated as the feature film, sub-titles in one or the other language may not be of any material effect. Is it possible, however, in the instant case, that the feature film is complete in itself without the introduction and introduction thus is not a part of the feature a part of the feature film? A taxing statute is always construed strictly and taxing authorities are hardly given any liberty to decide the extent of the taxing limits. The advantage of any vagueness of the statute goes to the benefit of the citizen and not to the benefit of the Revenue. The Board, it appears, was conscious of this legal limitations of the revenue authorities and approached the petitioner’s claim of exemption to say, it is a case for liberal classification. The Tribunal has noted the Collector’s remark that for the story pertaining to the pre-historic man of the stone-age no language media has been used and the entire narration is done through gestures, which are common in all language versions of the film. It has given no reason of its own as to why it decided to reject the case of the petitioner that without a narration of the theme of the film in the language concerned. It was not a complete feature film in itself.
7. I am of the view in the instant case that by not adopting a definition of a feature film and not clearly spelling out what according to them is a dubbing of a film, and in what circumstances a film dubbed from one language into another language will be entitled to the benefit of the exemption, the respondents have left sufficient scope for many claims of this kinds, as in the instant case. If the petitioner has been able to succeed in claiming the exemption, it is for the reason of inadequate representation in the exemption notification, since it is not possible to say that the above dubbed versions of the film are not separate feature films, in my opinion, the Board has been right in extending the benefit of the exemption to the petitioner. The Tribunal has committed error in interfering with the Board’s order without assigning any reason of its own and finding the reason, assigned by the Board, erroneous. It is well settled that any appellate Court or authority will not interfere with the judgment/order appealed against, if the view taken by the Appellate Court or the authority is not unreasonable or perverse. No serious objection, however, can be raised about this Court’s power under Article 226 of the Constitution. Availability of an alternative remedy cannot operate as a bar to such a constitutional remedy, though we exercise the refrain as a rule of prudence that a person should ordinary first avail the internal remedy and invoke the writ jurisdiction as a last resort. In the instant case, in my view, the petitioner should not be asked to go in appeal at the final hearing stage of the case which had been admitted to hearing about six years ago. For the reasons afore-mentioned, I am inclined to interfere with the order of the Appellate Tribunal. The same is accordingly quashed. The order of the Board is restored. The Writ Petition is allowed to the extent indicated above. There will be no order as to costs.