Calcutta High CourtHydro-Carbons And Chemicals vs Addl. Commr. Commercial Taxes, W.B. on 11 February, 2002Equivalent citations: 2002(142)ELT23(CAL)Author:Pinaki Chandra GhoseBench:Pinaki Chandra GhoseJUDGMENT
 

 Pinaki Chandra Ghose, J.1. The question arose in this writ application is whether Sodium Petroleum Sulphonate (hereinafter referred to as SPS) to be treated as "detergent" and whether the petitioner is entitled to a refund of 90% of the tax paid on the sale of the said SPS under the West Bengal Industrial Promotion (Assistance to Industrial Units) Schemes, 1994 (hereinafter referred to as the said Scheme).2. The petitioner is manufacturer of SPS and sold SPS within the territory of West Bengal and duly paid taxes on the sale of the said SPS. According to the petitioner, the petitioner is entitled to get a refund of the tax paid on SPS under the Scheme inter alia on the ground that the SPS is a detergent under the Serial No. 2 of Schedule 'B' appended to the said scheme. Accordingly, the petitioner applied under the said scheme for refund of tax for the quarter 1-10-1998 to 31-12-1998.3. At the time of such application under the said scheme the petitioner also approached the Directorate of Cottage & Small Scale Industries to mention that the SPS is another description of detergent. The Directorate of the Cottage & Small Scale Industries described SPS as detergent in the Permanent Registration Certificate issued by the said. Directorate to the petitioner. According to the petitioner, the State of West Bengal accepted and treated SPS as detergent.4. Learned Senior Counsel appearing on behalf of the petitioner submitted that under theCentral Excise Tariff Act, 1985"Detergent Synthetic" has been classified under the Tariff Heading No. 34.02 which speaks of "Organic Surface-active agents (other than soap), Surface-active preparations, washing preparation (including auxiliary washing preparations) and cleaning preparations whether or not containing soap." He further contended that the petitioner originally did not classify the SPS as Organic Surface-active agent. In 1983, the Excise authorities issued a show-cause notice on the petitioner and duly pointed out that the chemical test of the product of the petitioner was found to have contained the ingredients tariff item 15AA of the First Schedule of Central Excise & Salt Act, 1944and renumbered as 34.02. Therefore, according to him, the Central Government has been treating the product manufactured by the petitioner as "organic surface-active agent" under the said tariff Heading No. 34.02 and claiming duty on that basis.5. He further contended that the Customs Department of the Central Government are treating these goods as detergent and claiming customs duty under the Customs tariff item no. 34.02. He further drew my attention to theCustoms Tariff Actcommodity index at page 1252 wherefrom it appears that the Sodium Petroleum Sulphonate falls under Customs Tariff Item No. 34.02. Therefore, according to him there is no dispute of the product of the petitioner namely 'organic surface-active agent'.6. He further contended that the Department of the State of West Bengal has also accepted the said position and issued the said Registration Certificate. The other Department of the State cannot take another view in respect of the same commodity He also relied upon a judgement reported in (1948) 2 All. E.L.R. 767 (Robertson v. Minister of Pensions) in support of his contention.He also relied upon another judgment  (State of U.P. and Ors. v. Maharaja Dharmander Prasad Singhetc.) and submitted that the judicial review cannot be converted into an appeal. Judicial review is directed not against decision but is confined to examination of decision making process. He further contended that when the issues raised in judicial review is whether a decision is vitiated by taking into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors.7. He further contended that the respondent No. 1 rejected the claim of the petitioner on the ground that the said SPS manufactured by the petitioner are purchased by the Sun Oil Company Limited as raw material for use as additive for manufacturing cutting oil. According to him, if any person used the product of the petitioner, being SPS as a raw material for making some other products that cannot stand in the way of the petitioner's claim for refund under the West Bengal Industrial Promotion (Assistance to Industrial Units) Scheme, 1994.8. He further contended that all detergents are used after mixing with water. Accordingly, he submitted that whether the product of the petitioner is being used as raw material by any other company it cannot be stated that in subsistence the product of the petitioner will lose its quality.9. Learned Counsel appearing on behalf of the respondents contended that the Sodium Petroleum Sulphonate cannot be treated as detergent. He further contended that the petitioner claiming SPS to be organic surface-active agent has been described inCentral Excise Tariff Act. Therefore, it cannot be treated as a synthetic or artificial substance. But normally detergents are synthetic substances.10. He further drew my attention to the Certificate issued by the Directorate of Cottage & Small Scale Industries and he submitted that the certificate was granted on 28th January, 1997 showing that the petitioner is a manufacturer of SPS. But when the petitioner applied before the authorities to take an advantage under the scheme, further applied before the Directorate of Cottage & Small Scale Industries and obtained the said certificate on 21st May, 1999 where it has been recorded that the petitioner has been registered as a manufacturer of detergent, therefore, according to him which has been applied much after the first Permanent Registration Certificate was issued by the said Directorate to the petitioner on 28th January, 1997. He further submitted that the scheme came into force in the year 1994. Therefore, there was no bar on the petitioner to apply before the said authorities in the year 1997 and to have such certificate which shows that the steps taken by the petitioner are the afterthoughts and only to get the advantage under the said scheme.11. He further submitted that where no definition is provided in the statute itself for ascertaining the correct meaning of fiscal entry, the correct guide is the context and the Trade meaning. The Trade meaning is that which is prevalent in that particular trade where such goods are known or traded.In support of such contention he relied upon a judgment  (Collector of Central Excise, Kanpur v. Krishna Carbon Paper Co.). He also relied upon a judgment reported in 38 STC 113 (in the matter of Delhi Cloth & General Mills Co. Ltd.) and submitted that the Hon'ble Supreme Court has held that in a technical question on which two views seemed possible on apparent facts and neither of them could be rejected outright as untenable. In that case the Writ Court should not interfere a technical question passed on the facts and evidences. He further contended that in a case where the basic facts are disputed and complicated questions of law and facts are involved the writ Court should not entertain such application.In support of such contention he relied upon a judgment  (D.L.F. Housing Construction (P) Ltd. v. Delhi Municipal Corporation and Ors.). Accordingly, he submitted that this application should be dismissed. He further drew my attention to the order passed by the Additional Commissioner of Commercial Taxes and he submitted that the Additional Commissioner has specifically came to the conclusion that HC Sulpho Synth-450 being the brand name of the SPS, is used as an additive for manufacturing cutting oil, rust preventing oil i.e. to develop its emulsifica-tion and rust prevention properties and he submitted that the SPS manufactured by the petitioner is known and used as an additive in the common trade practice. Accordingly, he submitted that the order passed by the Additional Commissioner of Commercial Taxes cannot be interfered with at this stage and the said respondent came to the conclusion that after consideration of all aspects of the matter and since there is a disputed question of facts, the Writ Court should not interfere in the matter.12. After considering the facts and circumstances of this case I do not have any hesitation to accept the contention raised before me by Mr. Bhattacharjee appearing on behalf of the respondents and I do not have any hesitation to hold that the respondent authorities has the power to decide the matter and accordingly, the said authority has passed an order in the matter. The question at this stage whether the said order has been passed by the said authority in violation of the jurisdiction granted to him or has acted in excess to the jurisdiction given under the statute in favour of the said authorities. It appears that the petitioner came up before this Court earlier and the Hon'ble Court passed an order directing the authorities to give a further hearing to the petitioner and to pass a reasoned order. The said authorities pursuant to and in terms of the order passed by this High Court gave a hearing to the petitioner and came to the conclusion that the petitioners SPS are used as a lubricating agent and not as a detergent. In coming to such conclusion it appears that the authorities have discussed the case properly and passed the order. I do not find any reason to interfere with the order in view of the fact that the order is passed by the authorities with reasons and I do not have any hesitation to accept the contention of Mr. Bhattacharjee to hold that the petitioner also could not produce any evidence before the said authorities to hold the said article SPS is nothing but a detergent. Therefore, in my opinion the said authorities after giving hearing to the petitioner passed a reasoned order. There is no reason to interfere by this Court in writ jurisdiction.Accordingly, the writ application must fail and is hereby dismissed.