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2021 Supreme(Mad) 830
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
M/s. Anguvilas, M.V. Muthiah Pillai (Firm), Partnership Firm, Rep., by its Partner, Cellamuthiah, Dindigul – Appellant
Versus
The Assistant Director, Directorate General of Central Excise Intelligence, Chennai & Others – Respondent
W.P. Nos. 26966 to 26968 of 2008 & M.P. Nos. 1 to 3 of 2008 & W.M.P. Nos. 2008 of 2016 & 30728 of 2019
Decided On : 19-04-2021
For the Appellant :M.N. Bharathy, S. Muthuvenkataraman, Advocates.
For the Respondents: V. Sundareswaran, Senior Panel Counsel, A. Srinivas, Senior Standing Counsel.
Point of Law: Excise - Refunding of central excise duty - Petitioner is to file appropriate application under Section 11B of the Central Excise Act, 1944
Headnote:
Constitution of India,1950 - Article 226 - Central Excise Act, 1944 - Section 2(f) and 11B - Refunding of central excise duty - Manufacturer of tobacco - Petitioner-firm is a manufacturer of tobacco product and there is no conversion as such in respect of selling of tobacco petitioner-firm is concerned - Petitioner-firm purchases raw tobacco from the farmers and re-packs same and sells it to the customers and there is no conversion of tobacco as any other product and manufacturing process is absent - sold in market, is not excisable and therefore, actions taken by respondents are untenable –
Finding of the Court:
Original character is not modified, then it need not be considered as a manufacturing present case such facts are to be decided only through complete adjudication by competent authority and by appellate authority - Petitioner is at liberty to exhaust appellate remedy in manner known to law - Petitioner is at liberty to approach authorities and authorities competent shall decide application, if any, filed by petitioner by following procedures on merits and in accordance with law as expeditiously as possible - Relief sought for in writ petition cannot be considered by Court, as the issues are pending before Tribunal and such issues can be adjudicated by the petitioner in the manner known to law -
Result: Writ petitions stand disposed of
JUDGMENT :
(Prayer in W.P.No.26966 of 2008: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Declaration declaring to that effect that the product “chewing tobacco” that of the petitioner does not fall within the ambit of manufacture as defined under Section 2(f) of the Central Excise Act, 1944 Section Notes, Chapter Notes and Tariff Heads and hence not an excisable product.
W.P.No.26967 of 2008 :- Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus, directing the respondents more particularly the 2nd, 3rd and 4th respondents to refund Rs.2,00,000/- which has been credited on 25.10.2008 as directed by the 1st respondent.
W.P.No.26966 of 2008 :- Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus directing the respondents more particularly the 2nd, 3rd and 4th respondents to de-register of the Registration Certification No.AAEFA 6138 XM 001 as applied on 31.10.2008.)
1. The petitioner, in all these writ petitions, is M/s.Anguvilas M.V.Muthiah Pillai (Firm), a Partnership Firm, represented by its Partner, Cellamuthiah.
2. The relief sought for in W.P.No.26966 of 2008 is to declare the product “chewing tobacco” that of the petitioner does not fall within the ambit of manufacture as defined under Section 2(f) of the Central Excise Act, 1944 Section Notes, Chapter Notes and Tariff Heads and hence not an excisable product.
3. The learned counsel appearing on behalf of the petitioner-firm mainly contended that the petitioner-firm is a manufacturer of tobacco product and there is no conversion as such in respect of selling of tobacco, as far as the petitioner-firm is concerned. The petitioner-firm purchases the raw tobacco from the farmers and re-packs the same and sells it to the customers and there is no conversion of tobacco as any other product and the manufacturing process is absent. Thus, the tobacco, being sold in the market, is not excisable and therefore, the actions taken by the respondents are untenable.
4. The learned Senior Panel Counsel appearing on behalf of the first respondent disputed the said contention by stating that Courts cannot form an opinion regarding the process of manufacturing done by the petitioner-firm and whether the tobacco product, being sold in the market by the petitioner-firm, is a manufactured product or not and the same is to be decided by an adjudication with reference to the documents, evidences and by examination. Thus, the very claim set out in the writ petition deserves no merit for adjudication. Further, the petitioner-firm has already preferred appeals before the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (Tribunal). The Tribunal by order dated 11.07.2017 closed the appeals for statistical purpose, however made it clear that the appeals along with stay order/interim orders, if any, will continue before the Tribunal. Further, the Tribunal has granted liberty to both parties to file application before it to reopen the matter as and when the cases are disposed of by this Court in case of any change of circumstance. Now, it is for the petitioner to approach the Tribunal for adjudication of these issues by filing application for reopening the matter.
5. During the course of argument, the learned counsel for the petitioner cited a judgment of the Madurai Bench of Madras High Court in the case of Tvl.M.U.Mohamed Sultan & Co. vs. Asstt. Commr. Service Tax (F.A.C.), Pudukkottai reported in 2019 (368) E.L.T. 669 (Mad.). Paragraph 4 of the judgment would be relevant, which reads as follows:-
“4.In the instant cases, the petitioners are in the business of purchasing mined tobacco on whole sale basis, add some scent, repack it in small packs and sell it. The respondent has taxed them, on the ground that adding scent and making in small packs involves manufacturing process and the tobacco is converted from raw tobacco to chewing tob
