{"id":173830,"date":"1993-08-18T00:00:00","date_gmt":"1993-08-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shalimar-paints-ltd-vs-collector-of-central-excise-on-18-august-1993"},"modified":"2016-12-04T17:24:37","modified_gmt":"2016-12-04T11:54:37","slug":"shalimar-paints-ltd-vs-collector-of-central-excise-on-18-august-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shalimar-paints-ltd-vs-collector-of-central-excise-on-18-august-1993","title":{"rendered":"Shalimar Paints Ltd. vs Collector Of Central Excise on 18 August, 1993"},"content":{"rendered":"
Calcutta High Court<\/div>\n
Shalimar Paints Ltd. vs Collector Of Central Excise on 18 August, 1993<\/div>\n
Equivalent citations: 1994 (70) ELT 567 Cal<\/div>\n
Author: R Pal<\/div>\n
Bench: R Pal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT
\nRuma Pal, J.<\/p>\n
1. The petitioner manufactures paints, varnishes and other
\nallied products. Prior to 1986, for the purpose of Central Excise the goods
\nproduced by the petitioner were classified under Tariff Item No. 14 of the First
\nSchedule of the Central Excises & Salt Act, 1944. Tariff Item No. 14 in so far as
\nit is relevant read :\n<\/p>\n
“14. Pigments, colours, paints, enamels, varnishes, blacks and cellulose lacquers –\n<\/p>\n
II. Varnishes and blacks –\n<\/p>\n
(i) Varnishes<\/p>\n
(ii) Bituminous and Coal-tar blacks …”\n<\/p>\n
2. Subsequent to the introduction of Central Excise Tax Tariff Act, 1985
\nwhich came into force from 28th February 1986, the petitioner filed classification lists contending that the products manufactured by the petitioner were
\n“cut back bitumen”, and as such classifiable under Tariff Heading No. 27.15 of
\nthe Schedule to the 1985 Act.\n<\/p>\n
3. Before the classification list was accepted by the Central Excise
\nAuthorities, samples were drawn from the petitioner’s products. The samples
\nwere submitted to the Chemical Examiner, Customs House, Calcutta. The
\nChemical Examiner submitted 4 (four) test Memos in respect of four of the
\npetitioner’s products. The Test Memos read as follows :\n<\/p>\n
“(1) Test Memo No. 3\/PV\/SHM\/86 dated 30-7-1987 (Air Drying Black Insulating Varnish – 70\/38\/07).\n<\/p>\n
“The sample is black coloured free flowing liquid compound of
\nbituminous matter and volatile organic solvents. Percentage of Nonvolatile Residue = 46.0 by wt. It gives a tack-free transparent adhered
\ncoating. The laboratory is not equipped to test the electrical insulation
\nproperties or varieties.”\n<\/p>\n
Sd\/- Illegible, 16-10-1986
\nChemical Examiner
\nCustoms House, Cal.\n<\/p>\n
(2) Test Memo No. 57\/SPL\/27(l)\/87, dated 29-4-1987 (IMC Bitugard Black 20\/38\/38)<\/p>\n
“The sample is black coloured free flowing liquid compound of bitumen
\nin volatile organic solvents. It gives tack-free transparent adherent
\ncoating.”\n<\/p>\n
Sd\/- Illegible, 10-9-1987
\nChemical Examiner
\nCustoms House, Cal.\n<\/p>\n
(3) Test Memo No. 58\/SPL\/27(2)\/87, dated 5-5-1987 (Black Japan 73\/38\/86)<\/p>\n
“The sample is a black solution of bituminous matter in volatile organic
\nsolvent. It gives tack-free, transparent, adherent coating.”\n<\/p>\n
Sd\/- Illegible, 26-8-1987
\nChemical Examiner,
\nCustoms House, Cal.\n<\/p>\n
(4) Test Memo No. 59\/SPL\/27(3)\/87, dated 5-5-1987 (Black Tube Protective
\nCoating-73\/38\/39).\n<\/p>\n
“The sample is a black solution of bituminous matter in volatile organic
\nsolvent. It gives tack-free transparent, adherent coating.”\n<\/p>\n
Sd\/- Illegible, 26-8-1987
\nChemical Examiner,
\nCustoms House, Cal…”\n<\/p>\n
4. On 16th May 1988 a notice to show cause was issued by the Assistant
\nCollector, Central Excise to the petitioner. The period covered by the show
\ncause notice was 1-3-1986 and 1-3-1988. According to the Respondent
\nAuthorities the petitioner’s products were classifiable under Chapter 32 of the
\nSchedule to the 1985 Act under Heading No. 32.10 and sub-heading 3210.90.
\nThe bases for this classification as stated in the show cause notice briefly
\nenumerated were:\n<\/p>\n
(a) The difference in the nature and use of ‘cut-back bitumen’ and
\n“bituminous paints and varnishes”;\n<\/p>\n
(b) The test reports of the Chemical Examiner;\n<\/p>\n
(c) The explanatory notes below Heading No. 32.10 of the Harmonised
\nCommodity Description and coding system;\n<\/p>\n
(d) The fact that the products had been classified by the petitioner all
\nalong prior to the introduction of the 1985 Act as bituminous paints
\nand varnishes although cut-back bitumen was available as Tariff
\nHeading being Item No. 11(4) of the erstwhile Tariff; and<\/p>\n
(e) The petitioner itself declared the products manufactured by it in its
\nprice list as ‘Bituminous paints and varnishes’.\n<\/p>\n
5. On 11th August 1988 the petitioner wrote to the Assistant Collector of
\nCentral Excise acknowledging the receipt of the show cause notice stating :-\n<\/p>\n
“On perusal of the test results we are very much aggrieved firstly because the
\nreport is incomplete and secondly it observed that the sample contains liquid
\ncompound of bitumen but gives tack-free transparent adherent coating. We
\nfeel that solution of bituminous matter cannot give transparent adherent coating and as such we are not in a position to accept the test report as reflected in
\nthe impugned purported notice.\n<\/p>\n
In view of above we would request you to get the sample retested from
\nCentral Laboratory, New Delhi, as provided in Sub-rule (4) of Rule 56 of the
\nCentral Excise Rules, 1944 (hereinafter be referred as the rule) and communicate the result of retesting at an early date.\n<\/p>\n
We are in receipt of the report of test on 14-7-1988 and as such this request is
\nmade within the prescribed period of time contemplated in the rules.”\n<\/p>\n
6. On 7th September 1988 the petitioner was informed by the Excise
\nAuthorities that its request for retesting of samples had been allowed. An
\nendorsement on the letter dated 7-9-1988 shows that the samples were sent for
\nretesting to the Central Laboratory, New Delhi under registered post on 10th
\nDecember, 1988.\n<\/p>\n
7. On 7th February 1990 the Central Revenue Control Laboratory
\n(CRCL) wrote to the Assistant Collector giving the results of the chemical
\nanalysis of the samples sent. The analysis reads as follows :-\n<\/p>\n
“CLR-428 – Bituguard, Black : The sample is in the form of black liquid. It is
\ncomposed of Bitumen and volatile organic solvents. It gives transparent, tackfree, adherent coating. It has the characteristic of varnish.\n<\/p>\n
CLR-429 – Black Japan : The sample is in the form of black liquid. It is composed
\nof bitumen, epoxy resin and volatile organic solvents. It gives transparent
\ntack-free adherent coating. It has the composition of bituminous varnish. It is
\nthe other than cut back asphalt.\n<\/p>\n
CLR-430 – Black tube protective coating – The sample is in the form of black
\nliquid. It is composed of bitumen, epoxy resin and volatile organic solvents. It
\ngives tack-free transparent adherent coating. It has the composition of
\nbituminous varnish. It is other than cut back asphalt.”\n<\/p>\n
8. On 20th March, 1990 a notice was issued by the Assistant Collector to
\nthe petitioner enclosing a copy of the test result of the CRCL and requesting the
\npetitioner to appear for personal hearing on 29th March, 1990 failing which the
\ncase would be decided ex parte on the basis of available records.\n<\/p>\n
9. By notice dated 2nd August, 1991, personal hearing was fixed on
\n19th August, 1991. The petitioner was present through its representative and
\nAdvocate. At the hearing the petitioner’s representative insisted that they
\nshould be provided with the detailed test results without which it was not
\npossible for them to submit any arguments.\n<\/p>\n
10. On the same date 18\/19th August, 1991 the petitioner wrote to the
\nAssistant Collector stating that the test results of the CRCL were in conformity
\nwith the Chemical Examiner’s report. It was however stated that the report did
\nnot contain the composition of the product and it was difficult for the petitioner
\nto accept such report. It was stated that the additional solvents could not bring
\nin the characteristics of varnish. As far as the ‘Black Japan’ was concerned, the
\npetitioner said that it was surprised to find the presence of Epoxy Resin. It was
\ncontended that a tack-free coating did not necessarily mean that the product
\nwas varnish. The petitioner asked for the detailed composition of the product
\nso that it could submit its detailed written reply. The letter concluded with the
\nfollowing prayers :-\n<\/p>\n
“(a) the clarification lists submitted be approved as claimed;\n<\/p>\n
(b) if further classification is considered necessary, necessary order in this
\nregard may be made;\n<\/p>\n
(c) an opportunity of being heard after consideration of our further detailed
\nwritten reply to be submitted after getting the detailed analysis report
\nfrom the Central Revenue Laboratory be granted with sufficient advance notice to enable our technical personnel to be present.”\n<\/p>\n
11. It is not clear when this letter was received by the Assistant
\nCollector.\n<\/p>\n
12. By an order dated 26th August, 1991 the prayers of the petitioner’s
\nrepresentative as made at the hearing were rejected. There is no reference to the
\nletter dated 18\/19th August, 1991. The Assistant Collector said :-
\n “This is a very old case pertaining to the year 1988. The report of the above test
\nresult has been received on 20-2-1990. The test result is very conclusive in
\nnature and it reflects the nature of the goods in details. The question of
\nComposition as insisted upon by the assessee is nothing but a dilatory tactics
\non their part. Further reasonable opportunity was also given to the assessee to
\njustify the classification of the subject goods under Chapter Heading 27 but
\nthey failed. As such I do not find any reason to make further delay by way of
\nacceding to their request.”\n<\/p>\n
13. He accordingly confirmed the classification of the petitioner’s
\nproducts under sub-heading 3210.90 of the Schedule to the Central Excise Tariff
\nAct, 1985.\n<\/p>\n
14. Being aggrieved by this order the petitioner preferred an appeal
\nbefore the Collector of Central Excise (Appeals).\n<\/p>\n
15. The petitioner contended before the Collector that the request of the
\npetitioner for detailed analysis was reasonable. It was further stated that the
\nview of the Assistant Collector that the request was made only to delay the
\nmatter was not justified. It was stated that the order of the Assistant Collector
\nhad been passed in violation of the principles of natural justice. Submissions
\nwere also made on the merits of the case. Brief notes of the main submissions
\non behalf of the petitioner were submitted by the petitioner in writing to the
\nCollector.\n<\/p>\n
16. By an order dated 8th April, 1993 the Collector dismissed the
\npetitioner’s appeal. The Collector, relying upon several decisions of the
\nTribunal as well as the decisions of the Madras High Court and Bombay High
\nCourt held that as the samples were retested at the request of the petitioner, it
\nwas bound by the result of the test particularly when the results of both the
\ntests were the same.\n<\/p>\n
17. The petitioner then moved this writ application on 24th June, 1993
\nchallenging the order of the Assistant Collector dated 26-8-1991 as well as the
\norder of the Collector dated 8th April, 1993.\n<\/p>\n
At the hearing the petitioner contended :-\n<\/p>\n
18. Classification of products under a tariff heading was a quasi-judicial function which necessitated the compliance with rules of natural justice. If
\nthere is a breach of these rules the order was void and was not curable in
\nappeal.\n<\/p>\n
19. Secondly, it is contended that, in fact, there was a breach of natural
\njustice in this case because of the failure on the part of the respondents to give
\nthe detailed analysis of the test report of the CRCL. Furthermore after rejecting
\nthe petitioner’s prayer as made in the letter dated 18\/19th August, 1991, an
\nopportunity should have been given to the petitioner to adduce evidence
\ninstead of which the matter was decided on the basis of the test report by the
\nAssistant Collector. It is said that the ground for refusal of adjournment was
\nincorrect in the circumstances of the case as it was not the petitioner but the
\nrespondents who were guilty of delay. Much emphasis has been placed on
\nparagraph 8 of the writ petition wherein it is said that the then Assistant
\nCollector had been requested to examine the production records of the
\npetitioner to satisfy himself that no epoxy resin was used in the petitioner’s
\nproducts. According to the petitioner, the then Assistant Collector said he
\nwould look into the matter but did nothing for a year.\n<\/p>\n
20. It is then contended that the test report of CRCL was no test report
\nat all because no break up by way of percentage of the components had been
\ngiven. This was a vital factor taking into consideration the definition of cutback bitumen and bituminous paints given in the show cause notice itself. The
\ntest report has also been criticised on the ground of delay. It is stated that over
\none year had been taken in submitting the report by the CRCL. There was a
\npossibility of the samples being mixed up. The test report of CRCL has also
\nbeen criticised on the ground that a Chemical Examiner could not decide
\nclassification and the CRCL had exceeded its jurisdiction in saying that the
\npetitioner’s product was not ‘cut back bitumen’.\n<\/p>\n
21. Finally, it is contended by the petitioner that the Assistant Collector
\nin his order had wrongly placed the onus on the petitioner to adduce evidence
\nin respect of the case that the petitioner’s products were cut-back bitumen. It is
\nstated that the respondents wished to change the classification and as such the
\nonus was on the respondents that the goods were classifiable as claimed by
\nthem.\n<\/p>\n
22. The respondents have submitted that the writ petition was liable to
\nbe dismissed on the ground that the petitioner had suppressed that prior to the
\n1985 Act the petitioner has chosen to classify its products as paints and varnish
\neven though cut-back bitumen was available as a tariff item. Under the old
\ntariff the rate of tariff in respect of paints and varnish was lower than cut-back
\nbitumen. After the 1985 Act came into force, it was the petitioner who sought to
\nchange the classification of its products from paints and varnish to cut-back
\nbitumen because the duty payable in respect of cut-back bitumen became
\nlower than paints and varnish under the new tariff.\n<\/p>\n
23. Secondly it is submitted that the petitioner could not complain of
\nthe lack of details in the CRCL report. The report was given strictly in accordance with the request made by the petitioner in its letter dated 11-8-1988. No
\npercentage had been asked for in that letter.\n<\/p>\n
24. Thirdly, it is submitted that there was no question of violation of
\nprinciples of natural justice which would justify this Court in interfering with
\nthe orders impugned. The disputes raised were questions of fact which could
\nbe agitated before the Tribunal.\n<\/p>\n
25. It is contended that if the petitioner were aggrieved by the Assistant
\nCollector’s order it could have approached this Court immediately after the
\norder was passed. It did not choose to do so but opted for the remedy under the
\nstatute and should not be permitted to invoke the Court’s jurisdiction under
\nArticle 226 at this stage.\n<\/p>\n
26. In my view, there is substance in the respondent’s contentions and
\nthe writ application is liable to be dismissed. There has been no violation of the
\nprinciples of natural justice in this case. The failure on the part of the respondents to give a detailed analysis may affect the merits of the test report or the
\nmerits of the factual finding of the respondent authorities but I fail to see how
\nthe non-giving of the detailed analysis of the chemical report can amount to a
\nbreach of the principles of natural justice. There may have been some substance
\nin the petitioner’s contention if the respondents had relied upon any evidence
\nwhich was not given to the petitioner. But that is not the case.\n<\/p>\n
27. The refusal to adjourn the matter on 19th August, 1991 by the
\nAssistant Collector cannot, also in the circumstances of the case be said to be
\narbitrary. The petitioner cannot complain that it was not given adequate opportunity of producing evidence in respect of its case. The show cause notice dated
\n16th May, 1988 itself called upon the petitioner to produce all evidence in
\nrespect of its contention that the products were classifiable in accordance with
\nthe classification claimed. The petitioner did not do so. The production of
\nevidence by the petitioner in respect of its claim was not dependent upon the
\nchemical examiner’s report. The petitioner was at liberty to produce independent evidence of the composition of its products. The test report of the
\nChemical Examiner, Calcutta, was made available to the petitioner in 1988
\nitself. The report of CRCL was made available to the petitioner in March, 1990.
\nThe request for the detailed analysis was made for the first time in August, 1991
\nmore than 1 year later on a date on which the hearing had been fixed by notice
\ndated 2nd August, 1991. Although the letter is not referred to in the order of the
\nAssistant Collector the oral submission of the petitioner’s representative to the
\nsame effect have been noted in the order. There is no reason why the request
\ncould not have been made earlier.\n<\/p>\n
28. The case made out in paragraph 8 of the writ petition that the writ
\npetitioner had called upon the then Assistant Collector to scrutinize the records
\nof the petitioner has not been referred to in the grounds of appeal before the
\nCollector. Assuming that to be so, that failure on the part of the Assistant
\nCollector to scrutinize the petitioner’s records cannot amount to a denial of
\nnatural justice. The respondents had never placed any embargo on the
\npetitioner in adducing evidence. If the petitioner wished to rely upon its
\nrecords it could have produced the same before the respondents instead of
\ncalling upon the Assistant Collector to visit their factory, as they allege, to
\ninspect the records.\n<\/p>\n
29. The question of onus relates to the merits of the case and not to the
\nquestion of natural justice. In any event I am unable to accept the submission of
\nthe petitioner that the onus was wrongly placed on the petitioner by the
\nAssistant Collector. Prior to the 1985 Act cut-back bitumen featured under
\nTariff Item No. 11 (4) as under :-\n<\/p>\n
 “11. Coal (excluding lignite) and coke, all sorts, including calcined petroleum
\ncoke, asphalt, bitumen and tar – (4) Asphalt and bitumen (including cut-back bitumen and asphalt) natural or
\nproduced from petroleum or shale.”\n<\/p>\n
30. The petitioner did not include its products under 11(4) then. Then
\nthe petitioner had classified its products under the Tariff Item No. 14(11) which
\nhas already been quoted above, under the General Tariff Heading of Paints and
\nVarnishes. The respondents are seeking to continue to classify the petitioner’s
\nproducts under approximately the same head under the new Tariff being Tariff
\nItem No. 32.10 which reads as follows :-\n<\/p>\n
 “32.10 Other paints and varnishes (including enamels, lacquers and distempers), prepared water pigments of a kind used for finishing leather.”\n<\/p>\n
31. It is not the respondents who are seeking to change the classification
\nof the petitioner’s products but the petitioner itself. According to the petitioner,
\nthe products manufactured by it are classifiable under Tariff Heading No.
\n2715.10.\n<\/p>\n
“27.15 Bituminous mixtures (including emulsions, suspensions and solutions)
\nbased on natural asphalt, on natural bitumen, on petroleum bitumen, on
\nmineral tar or on mineral tar pitch (for example, bituminous mastics, cut
\nbacks)<\/p>\n
2715.10 Cut-back bitumen or asphalt.”\n<\/p>\n
32. It may be so. But that is for the petitioner to establish. Assuming the
\nonus was on the respondents, they have acted on some evidence in support of
\ntheir contention. It is for the petitioner to rebut such evidence.\n<\/p>\n
33. In the circumstances, it cannot be said that the respondents had
\nacted in breach of any principle of natural justice justifying the Court in
\ninterfering in the matter under Article 226.\n<\/p>\n
34. The petitioner’s grievance regarding the correctness of the test
\nreport of CRCL relates to the petitioner’s defence on merits. The petitioner can
\ncertainly assail the correctness of the test report on such basis as it may think
\nproper before the Tribunal. I do not express any view regarding the weight to
\nbe attached to the test reports relied upon by the respondents.\n<\/p>\n
35. No violation of natural justice being involved and the dispute being
\none which is purely one of fact, and the petitioner having already chosen its
\nalternative remedy under the Act, the Court would be justified in relegating the
\npetitioner to the alternative remedy so chosen by it under the Act.\n<\/p>\n
36. For the reasons stated the writ application is dismissed. All interim
\norders are vacated. There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Calcutta High Court Shalimar Paints Ltd. vs Collector Of Central Excise on 18 August, 1993 Equivalent citations: 1994 (70) ELT 567 Cal Author: R Pal Bench: R Pal JUDGMENT Ruma Pal, J. 1. The petitioner manufactures paints, varnishes and other allied products. Prior to 1986, for the purpose of Central Excise the goods produced by […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[22,8],"tags":[],"class_list":["post-173830","post","type-post","status-publish","format-standard","hentry","category-calcutta-high-court","category-high-court"],"yoast_head":"\nShalimar Paints Ltd. vs Collector Of Central Excise on 18 August, 1993 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shalimar-paints-ltd-vs-collector-of-central-excise-on-18-august-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shalimar Paints Ltd. vs Collector Of Central Excise on 18 August, 1993 - 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