{"id":215054,"date":"1966-02-25T00:00:00","date_gmt":"1966-02-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/orient-paper-mills-ltd-vs-union-of-india-on-25-february-1966"},"modified":"2017-10-23T11:58:12","modified_gmt":"2017-10-23T06:28:12","slug":"orient-paper-mills-ltd-vs-union-of-india-on-25-february-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/orient-paper-mills-ltd-vs-union-of-india-on-25-february-1966","title":{"rendered":"Orient Paper Mills Ltd vs Union Of India on 25 February, 1966"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Orient Paper Mills Ltd vs Union Of India on 25 February, 1966<\/div>\n
Equivalent citations: 1966 AIR 1754, \t\t 1966 SCR (3) 657<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Sikri, S.M.<\/div>\n
           PETITIONER:\nORIENT PAPER MILLS LTD.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA\n\nDATE OF JUDGMENT:\n25\/02\/1966\n\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nWANCHOO, K.N.\nHIDAYATULLAH, M.\nSHAH, J.C.\nSIKRI, S.M.\n\nCITATION:\n 1966 AIR 1754\t\t  1966 SCR  (3) 657\n\n\nACT:\nSupreme\t Court Rules, 1950, Schedule III, Part 11, Entry  2-\nClaim  for  refund  of a definite  amount  of  excise  duty-\nDisallowed  by\tExcise authorities-Appeal to  Supreme  Court\nunder Art. 136-Court fee payable.\n\n\n\nHEADNOTE:\nThe appellant claimed refund of a specific amount as  excess\namount\tof  excise duty recovered from it  by  assessing  it\nunder a wrong item, but the excise authorities rejected\t the\nclaim  and  the\t appellant's  revision\tapplication  to\t the\nrespondent was also dismissed.\tIn its application for leave\nto  appeal  to\tthis Court under  Art.\t136,  the  appellant\nchallenged  the\t order of the respondent on  the  assumption\nthat  the  order  under\t appeal\t had  been  passed  by\t the\nrespondent  acting as a Tribunal, and reiterated  its  claim\nfor the specified amount.  The appellant contended that only\nfixed  court fee of Rs. 250 was payable because it  was\t not\npossible to estimate at a money value the subject matter  in\ndispute\t and  not  fee on an ad valorem basis  at  the\trate\nprescribed  in\tEntry  2 in Schedule 111,  Part\t 11  of\t the\nSupreme Court Rules.\nHELD  : The claim made by the appellant was for a  definite,\nascertained  amount and therefore it is not a case where  it\nis  not\t possible to estimate at a money value\tthe  subject\nmatter\tin dispute.  Nor can it be said that if\t the  appeal\nbefore this Court succeeds, it would still be necessary\t for\nthe  appellant\tto  take any further steps  to\trecover\t the\namount\tof  refund,  because,  this  Court  can\t direct\t the\nappropriate authorities to grant the refund.  Therefore, the\nappellant  should pay court fee as prescribed by Entry 2  in\nPart 11 of Schedule III of the Supreme Court Rules, on an ad\nvalorem basis. [661 G-H; 662 E, F]\nOrder in Civil Appeal No. 212 of 1956, explained.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 659-664  of
\n1965.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nOctober\t 5,  1963 of the Government of\tIndia,\tMinistry  of
\nFinance, Department of Revenue, New Delhi in Central  Excise
\nRevision Applications Nos. 720-725 of 1963.
\nA.   K. Sen, B. P. Maheshwari and M. S. Narasimhan, for\t the
\nAppellant.\n<\/p>\n
N. S. Bindra and B. R. G. K. Achar, for the respondent.
\nThe Judgment of the Court was delivered by
\nGajendragadkar,\t C.  J. What is the  appropriate  amount  of
\ncourt-fees  payable on the petition of appeal filed  by\t the
\nappellant, Orient Paper Mills Ltd., under Schedule III, Part
\nII  of\tthe  Supreme Court Rules, 1950, that  is  the  short
\nquestion  of  law  which arises for  our  decision  in\tthis
\nmatter.\n<\/p>\n
The  appellant carries on the business of manufacturing\t and
\nselling\t paper\tand paper board, and is registered  as\tsuch
\nunder the 657
\n658<\/span>
\nCentral\t Excise\t and  Salt  Act,  1944\t(No.   I  of   1944)
\n(hereinafter  called ‘the Act’).  The respondent, the  Union
\nof  India,  charges excise duty under Rule 9  of  the  Rules
\nframed\tunder  the  Act on the\tpaper  manufactured  by\t the
\nappellant  before the manufactured goods are cleared out  of
\nthe  appellant’s ware-house.  Among various kinds  of  paper
\nwhich  the  appellant manufactures and sells,  are  included
\n‘Packing  and  Wrapping’ and ‘Printing and  Writing  Paper’.
\nThe  aforesaid\t‘Printing and Writing Paper’ is\t of  various
\nvarieties  and it includes Machine Glazed  Poster  popularly
\nknown as M.G. Posters.\n<\/p>\n
Prior  to the Finance Act of 1961, the printing and  writing
\npaper  was  classified and charged under item 17(3)  of\t the
\nSchedule to the Act and the wrapping paper was charged under
\nitem  17(4) of the Schedule; even so, the duty on  both\t the
\nitems was the same, viz., 0 . 22 P. per kilogram.  The\tduty
\nunder  item 17(4) was, however, enhanced by the Finance\t Act
\nof  1961 -and increased to 0 – 35 P. per kilogram  from\t the
\n1st  March, 1961.  About six months after the enhanced\tduty
\ncame  into  force, the Excise authorities decided  that\t the
\nM.G. Poster manufactured by the appellant should be  charged
\nunder item 17(4) and demand notices were issued\t accordingly
\nfor  the  different months during which the said  paper\t was
\nmanufactured.  In consequence of this demand, a total sum of
\nRs.  2,79,175-27  P.  was collected from  the  appellant  as
\ndifference  in the duty leviable for the assessment  periods
\ncovered\t by  the several appeals which are pending  in\tthis
\nCourt  and  with  which\t we are\t concerned  in\tthe  present
\nproceedings.\n<\/p>\n
As  a result of these demands, the appellant had to pay\t the
\nduty  which it did under protest.  Thereafter, it claimed  a
\nrefund\tunder  Rule II of the Rules framed  under  the\tAct.
\nThis Rule prescribes a period of three months within which a
\nclaim  for  refund can be made “in consequence\tof  the\t sum
\nhaving\t been\tpaid   through\t inadvertance,\t error\t  or
\nmisconstruction”.  The appellant urged that the duty on\t the
\ngoods  in question was chargeable under item 17(3)  and\t not
\nunder  item 17(4) of the Tariff Rules.\tOne of\tthe  reliefs
\nclaimed by the appellant in its petitions of appeal was that
\nthe  Excise  authorities be directed to\t assess\t the  poster
\npaper under item 17(3) and not under item 17(4) and to\tmake
\na direction as to the refund of the excess amount  recovered
\nfrom  the appellant.  The excess amount of which refund\t was
\nthus  claimed came to Rs. 84,928-84 P. This application\t was
\nrejected  by  the  Assistant Collector\tof  Central  Excise,
\nCuttack Division, Cuttack.\n<\/p>\n
Against the said decision, the appellant preferred an appeal
\nto  the Collector of Central Excise under s. 35 of the\tAct.
\nIn  its\t appeal\t memo to the Collector,\t the  appellant\t had
\nclaimed\t that the order under appeal should be\trevoked\t and
\nRs. 84,928-84 P. should be refunded to it.  A further  claim
\nwas made by the appellant that the excise authorities should
\nbe directed to assess the poster paper
\n659<\/span>
\nunder item 17(3) and not under item 17(4).  The said  appeal
\nwas rejected by the Collector of Customs on 28-7-1962.
\nThe  appellant then moved the respondent by way of  revision
\nunder  S. 36 of the Act.  In its revision  application,\t the
\nappellant  made prayers similar to those which it  had\tmade
\nbefore\tthe Appellate Authority.  This revision\t application
\nwas  also  dismissed.  It is against this  revisional  order
\nthat  the appellant has come to this Court by special  leave
\nunder Art. 136 of the Constitution.  It appears that in\t the
\nvarious\t paragraphs  of\t its  application  for\tleave,\t the
\nappellant  has\treiterated  its claim for  refund  of  money
\nrecovered  from it in excess of the amount legitimately\t due
\nfrom  it  and  has  challenged\tthe  order  of\tthe   Excise
\nauthorities  rejecting its claim in that behalf.   On  these
\nfacts,\tthe question which arises is: can the  appellant  be
\npermitted to pay a court-fee of Rs. 250 on its petitions for
\nappeal,\t or is it necessary that it ought to pay  court-fees
\nat  the\t rate  prescribed by sub-clause (2) of\tentry  2  in
\nSchedule III, Part II of the Supreme Court Rules?
\nThis  question was referred by the Deputy Registrar of\tthis
\nCourt  to the Hon’ble Judge in Chambers.  The learned  Judge
\nreferred to the respective contentions raised before him  by
\nthe  parties  and considered the practice in regard  to\t the
\nlevy of court-fees in allied matters.  He took the view that
\nthe  practice  with regard to levy of court-fees  was  in  a
\nstate  of flux and it required full consideration.  That  is
\nwhy  he directed that the matter be adjourned to Court.\t  It
\nis  as a result of this direction made by the Hon’ble  Judge
\nin Chambers that this matter has come before us for disposal
\non the question of court-fees.\n<\/p>\n
Let  us\t cite the relevant provisions of the  Supreme  Court
\nRules in relation to court-fees in this matter.\t Enrty 2  in
\nPart 11 of Schedule III reads thus:-\n<\/p>\n
“Lodging and registering Petition of Appeal:
\nWhere the amount or value of the
\nsubject-matter in dispute is Rs.\n<\/p>\n
20,000 or below that sum\t  ..Rs. 250-00
\nFor every Rs. 1,000 in excess of Rs. 5 . 00 for every
\n     Rs. 20,000\t\t\t    thousand rupees or
\n\t\t\t\t     part thereof.<\/p>\n
In cases where it is not possible to
\nestimate at a money value the
\nsubject-matter in dispute\t    Rs. 250 . 00″\n<\/p>\n
There is a proviso to this entry which reads thus:
\n“Provided:\n<\/p>\n
(1)  that  the\tmaximum fee payable in any  case  shall\t not
\nexceed Rs. 2,000 and
\n660<\/span>
\n(2)  that  where  an  appeal is\t brought  by  special  leave
\ngranted by this Court credit shall be given to the appellant
\nfor the amount of court-fee paid by him on the petition\t for
\nspecial leave to appeal”.\n<\/p>\n
Mr.  Sen for the appellant contends that it is not  possible
\nto  estimate at a money value the subject-matter in  dispute
\nin  the present appeals; and so, court-fee of Rs. 250  would
\nbe adequate and appropriate for each one of them.  According
\nto him, the controversy between the parties has relation  to
\nthe  proper classification of the goods and this  being\t the
\nsubject-matter of the appeals, it is incapable of valuation.
\nMr.  Sen presented his argument in an alternative form.\t  He
\nurged that even if the appeals are allowed, this Court\twill
\nmerely determine the proper classification of the goods\t and
\nmake  a\t declaration that on the basis of  the\tsaid  proper
\nclassification,\t the  appellant should be  entitled  to\t the
\nrefund.\t  Even\tafter  such  a\tdeclaration  is\t made,\t the
\nappellant would be required to adopt some other procedure to
\nmake a claim for actual recovery of the said refund.  It  is
\non  these two grounds that Mr. Sen rests his case  that\t Rs.
\n250  would  be the appropriate and adequate  court-fees\t for
\neach one of these appeals.\n<\/p>\n
In support of this contention, Mr. Sen has also referred  to
\nthe practice prevailing in this Court in respect of  certain
\ncategories  of appeals where court-fee of Rs. 250  has\tbeen
\nconsistently accepted as adequate and appropriate.  In Civil
\nAppeal No. 212 of 1956 (The State of Madras v. Messrs.\tTata
\nIron and Steel Co. Ltd.)<\/a> an appeal was filed by the State of
\nMadras\ton a certificate granted by the High Court  from  an
\norder passed by it under S. 12-B of the Madras General Sales
\nTax  Act, 1939 allowing the assessee’s claim for  refund  of
\nthe  amount  of\t sales tax computed on the  turn-over  of  a
\nstated\tsum  of money.\tOverruling the stand  taken  by\t the
\noffice\tthat  court-fees  should be paid on  an\t ad  valorem
\nbasis,\tBhagwati,  J.  who was then  the  Hon’ble  Judge  in
\nChambers  directed that “it is not possible to estimate\t the
\nvalue of the claim in this case and the record does not show
\nit.  Therefore, the court-fee should be paid on that basis”.
\nAccordingly Rs. 250\/- was accepted as proper court-fee.
\nSimilarly, in Civil Appeal No. 54 of 1958 (Indian Hume Pipes
\nv. Its Workmen)<\/a> though the appeal related to a definite\t and
\nascertainable  sum of money in respect of payment of  bonus,
\ndearness  allowance, etc.  Bhagwati, J. directed that “I  am
\ninclined  to think that Rs. 250\/- fixed court-fee should  be
\ncharged.  ,  The  award\t merely\t determines  the  liability;
\nrecovery of the dues requires other procedure to be  adopted
\nfor the purpose; vide section 33(c)”.\n<\/p>\n
In accordance with the directions thus given by the  Hon’ble
\nJudge in Chambers in these two matters, the practice in this
\nCourt
\n661<\/span>
\nconsistently  has been that in matters coming to this  Court
\nin  reference proceedings under the relevant  provisions  of
\nthe  Sales Tax Acts and the Indian Income-tax Act,  1922  as
\nwell  as against awards made under the\tIndustrial  Disputes
\nAct, 1947, Rs. 250 has been accepted as proper court-fee.
\nIn Civil Appeal No. 148 of 1954 (Mls.  Bhatnagar & Co. Ltdv.
\nUnion of India), similar court-fee of Rs. 250\/- was accepted
\nwhere  the appellant challenged the order of the High  Court
\npassed under Art. 226 refusing the appellant’s prayer for  a
\ndirection  for\tamendment of the period of the\tvalidity  of
\nimport\tlicences.   This plea was accepted even\t though\t the
\nappellant  had estimated his loss at Rs. 6,00,000\/-  if\t the
\nrelief claimed in that behalf by him was not granted.  It is
\non  these precedents and the practice which they  show\tthat
\nMr.  Sen  has  relied in support of his\t argument  that\t the
\ncategory of’ cases in which the present appeals fall  should
\nbe  similarly  treated\tand Rs. 250\/-  should  be  taken  as
\nadequate and proper court-fee.\n<\/p>\n
 Reverting  then to the first contention raised by Mr.\tSen,
\ncan it be said that the present appeals fall in the class of
\ncases where it is not possible to estimate at a money  value
\nthe  subject-matter in dispute.\t In our opinion, the  answer
\nto  this question must clearly be in the negative.  We\thave
\nalready\t set  out the nature of the relief claimed  by’\t the
\nappellant in its application before the Assistant  Collector
\nof  Central  Excise, as well as in  subsequent\tappeals\t and
\nrevision  application.\tThe claim clearly and  unambiguously
\nis  for\t a refund of Rs. 84,928 . 84 P. It is  true  that  a
\nclaim for this refund is sought to be justified on the basis
\nthat  the assessment should be levied under item  17(3)\t and
\nnot  under item 17(4); but the decision of the point  as  to
\nwhich  item  applies  to the paper in  question,  serves  to
\nsupport the appellant’s claim for a refund; and so, the fact
\nthat  the issue as to which item applies cannot be  said  to
\ndetermine  the character of the present\t proceedings  before
\nthe  Appellate Authority or that of the appeals before\tthis
\nCourt.\tThe proceedings, in terms, are to recover the stated
\namount of refund and since the said claim has been  rejected
\nby  the Excise authorities, in the present appeals the\tsame
\nclaim\tis  made  by  the  appellant  before   this   Court.
\nTherefore,  we\tthink it is impossible to  hold\t that  these
\nappeals are cases where it is not possible to estimate at  a
\nmoney value the subject-matter in dispute.
\nBesides,  Mr.  Sen is not right in contending  that  if\t the
\nappeals.  filed by the appellant before this Court  succeed,
\nit would be necessary for the appellant to take some further
\nsteps  to  recover the amount of refund claimed by  it.\t  In
\ncase this Court holds that the basis on which the assessment
\nhas  been made in respect of the paper manufactured  by\t the
\nappellant is erroneous in law, the necessary consequence  of
\nthe  said  decision  would be to issue a  direction  that  a
\nrefund of the appropriate amount should be allowed.  These
\n662<\/span>
\nappeals\t have been brought to this Court under Art.  136  of
\nthe  Constitution  on the assumption that the  orders  under
\nappeal\thave been passed by the respondent which acted as  a
\nTribunal  in entertaining the revision\tapplications  within
\nthe meaning of the said Article; and so, it would be open to
\nthis  Court  to\t direct, if the appeals\t succeed,  that\t the
\nappropriate  authorities should grant the appellant’s  claim
\nfor refund.\n<\/p>\n
Then as to the precedents on which Mr. Sen relies, the posi-
\ntion with regard to appeals brought to this Court in  Sales-
\ntax or Income-tax matters, such as the case in the State  of
\nMadras\tv.  Messrs.   Tata Iron and Steel  Co.\tLtd.<\/a>(1),  is
\nentirely  different.   In such proceedings, the\t High  Court
\nwhich  entertains the reference ,acts purely in an  advisory
\ncapacity  and  when  the appeal is  brought  to\t this  Court
\nagainst\t the decision of the High Court on  such  reference,
\nthe  capacity of this Court is exactly the same as  that  of
\nthe High Court.\t The proceedings continue to be\t proceedings
\nin  which either the High Court or this Court  expresses  an
\nadvisory  opinion,  and\t so, it can well be  said  that\t the
\nsubject-matter in such cases cannot be estimated at a  money
\nvalue.\tWhether or not similar considerations will apply  to
\nthe  appeals brought to this Court by special leave  against
\nawards\tmade  under the Industrial Disputes Act\t or  against
\norders passed by the High Court in writ jurisdiction, it  is
\nunnecessary for us to decide in the present proceedings.
\nSo  far\t as the present appeals are concerned,\twe  feel  no
\ndifficulty  in holding that the claim made by the  appellant
\nis  for\t a  definite,  ascertained  amount  and\t it  is\t the
\nrejection of the said claim by the respondent in exercise of
\nits revisional jurisdiction when it rejected the appellant’s
\nrevision  applications, that has given rise to\tthe  present
\nappeals.   This is a claim which in terms has  already\tbeen
\nestimated at a money value, and therefore, there is no basis
\nfor the appellant’s plea that court-fee of Rs. 250\/-  should
\nbe held to be adequate and proper in each of these  appeals.
\nWe accordingly ,direct that the appellant should pay  proper
\ncourt-fees as prescribed by Entry 2 in Part II of the  Third
\nSchedule of the Supreme Court Rules, subject, of course,  to
\nthe  maximum  prescribed  by  clause  (i)  -of\tthe  proviso
\nthereto.\n<\/p>\n
(1) C.A. No. 212 of 1956.\n<\/p>\n
663<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Orient Paper Mills Ltd vs Union Of India on 25 February, 1966 Equivalent citations: 1966 AIR 1754, 1966 SCR (3) 657 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Shah, J.C., Sikri, S.M. PETITIONER: ORIENT PAPER MILLS LTD. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 25\/02\/1966 BENCH: […]<\/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":[30],"tags":[],"class_list":["post-215054","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nOrient Paper Mills Ltd vs Union Of India on 25 February, 1966 - 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\/orient-paper-mills-ltd-vs-union-of-india-on-25-february-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Orient Paper Mills Ltd vs Union Of India on 25 February, 1966 - 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