ivil Appeal No 2106 of 1989
From the Judgment and Order dated 1571987 of the Gauhati High Court in Second Appeal No 22 of 1981
274 ND Garg and Rajeev Garg for the Appellant
Anil Dev Singh Ms Indu Goswami P Parmeshwaran and Ms Sushma Suri for the Respondents
The Judgment of the Court was delivered by RAY J
Special leave granted
Heard arguments of both the parties
This appeal on special leave is against the judgment and decree passed by the Gauhati High Court on July 15 1987 in Second Appeal No 22 of 1981 reversing the judgment and decree dated July 24 1981 made by the Additional District Judge West Tripura District Agartala setting aside the judgment and decree passed by the Munsiff Sadar Tripura in Title Suit No 33 of 1973 dismissing the Suit without costs
The plaintiff appellant was enrolled as a Constable No 66922 189 under 92 Bn BSF in Tripura and he was serving as such since 1966
He alleged to have been confirmed in the said post while so posted to BOP at Ajgar Rahamanpur being a member of the 6th platoon under B Company Commander Radhanagar
In 1971 he was granted leave from 251071 to 30101971 on account of the death of his father
As the Sradh ceremony could not be performed within the aforesaid time and he was suffering from serious illness he made an application requesting for extension of leave supported by a medical certificate
On December 12 1971 the appellant received a communication from the Commandant stating that as he was absent without leave from 31101971 so he the Commandant was of the opinion that because of this absence without leave for a long period his further retention in service was undesirable
He proposed to dismiss him from service
The appellant was asked to submit his explanation against the imposition of this penalty before December 25 1971
The appellant sent a telegram on December 21 1971 but without any redress
On January 5 1972 he received an order from the Commandant 92 Bn
BSF informing him that he had been dismissed from service
On January 10 1972 the appel lant again prayed for permitting him to join his service but he was not allowed to do so
The appellant preferred an appeal to the Inspector General BSF Police Government of Tripura on February 1 1972 which was received by him on February 3 1972
No relief was granted to him
275 The appellant as plaintiff after serving a notice under Section 80 of the Code of Civil Procedure and as no redress was given to him filed Title Suit No 33 of 1973 in the Court of Munsiff Sadar Tripura for a declaration that the order of dismissal from service was illegal and he was still in service
The defendants respondents contested the Suit and plead ed that the plaintiff was absent from duty from 31101971 without any leave at a critical time when India was at war with Pakistan
The Commandant 92 Battalion BSF by notice dated December 15 1971 intimated him that his retention in service was undesirable because of his absence for a long period and as such it was proposed to dismiss him from service
He was given opportunity to urge anything in his defence but he did not avail of it by sending any reply
He was therefore dismissed from service by the Commandant by order dated January 5 1972 in accordance with the provi sions of and the Rules flamed thereunder
The Munsiff held that the plaintiff was given reasonable opportunity before the Commandant dismissed him from serv ice
The suit was therefore dismissed
Against the said judgment and decree the plaintiff filed an appeal which was registered as Title Appeal No 7 of 1979 in the Court of Additional District Judge West Tripura District Agartala
The said appeal was allowed and the suit was decreed
It was held that the impugned order of dismiss al from service was illegal and bad as the same was not made by Security Force Court and no such Court was constituted
The order passed by Commandant under Section 112 of the Act read with Rule 177 of the Rules of 1969 cannot be up held
It was also held that the impugned order was bad as it was contrary to the constitutional mandate embodied in Article 311 of the Constitution of India as no opportunity of hearing was given and the procedural safe
guards as contained in Chapters VII to XI of the Rules were not fol lowed for arriving at a decision of guilt against the appel lant by Security Force Court
Feeling aggrieved by the said judgment and decree the respondents preferred a second appeal being SA No 22 of 1981 in the Gauhati High Court
On July 15 1987 the High Court decreed the said appeal on reversing the judgment and decree of the lower appellate court and dismissing the suit holding inter alia that the order of dismissal from service in question had been made in accordance with the 276 powers conferred on the Commandant BSF under the provi sions of Section 112 and 4 of read with Rule 177 of Border Security Force Rules 1969
It was also held that this was an independent power conferred upon the Commandant apart from the power conferred upon the Security Force Court under Section 48 of the said Act for imposition of punishment of dismissal from service in respect of the offences specified in Section 19 of the said Act
The plaintiff appellant filed the instant appeal on special leave against the said judgment and decree passed by the High Court in the said Second Appeal
The only challenge to the judgment in appeal is that the order of dismissal dated January 5 1972 passed by the Commandant is illegal and unwarranted in as much as there was no order made by the Security Force Court for passing the impugned order of dismissal for an offence made under Section 19 of the following the procedure contained in chapters VII to XI of the Rules framed under Section 141 of the 
The has been enacted with a view to provide for the constitution and regulation of an armed force of the Union for ensuring the security of the borders of India and for matters connected therewith by the Parlia ment and the same has been enforced by Notification No SO 732 dated the 20th February 1969
Section 4 of to be referred to hereinafter in short as BSF Act provides that There shall be an armed force of the Union called the Border Security Force for ensuring the security of the borders of India
 Sub Section 2 further provides that Subject to the provisions of this Act the Force shall be constituted in such manner as may be prescribed and the conditions of serv ice of the members of the Force shall be such as may be prescribed
 Section 10 says that Subject to the provisions of this Act and the rules the 277 Central Government may dismiss or remove from the service any person subject to this Act
 Section 11 which is very relevant for the decision of the instant case is quoted herein below 1 The Director General or any Inspector General may dismiss or remove from the service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer
2 An officer not below the rank of Deputy InspectorGeneral or any prescribed officer may dismiss or remove from the service any person under his command other than an officer or a subordinate officer of such rank or ranks as may be prescribed
3 Any such officer as is mentioned in sub section 2 may reduce to a lower grade or rank or the ranks any person under his command except an officer or subordinate officer
4 The exercise of any power under this section shall be subject to the provisions of this Act and the rules
 Chapter III specifies the offences under the BSF Act
Section 19 of the said Chapter states that Any person subject to this Act who commits any of the following offences that is to say a absents himself without leave or b without sufficient cause overstays leave granted to him or c being on leave of absence and having received information from the appropriate authority that any battalion or part thereof or any other unit of the Force to which he belongs has been ordered on active duty fails without sufficient cause to rejoin without delay or       etc
278 shall on conviction by a Security Force Court be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned
 All the offences incorporated in Chapter III are convictable by the Security Force Court
Chapter IV which starts from Section 48 provides for punishment to be awarded by the Security Force Courts in respect of the of fences specified therein as under a death b imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody c dismissal from the service      etc
 Section 50 further provides that A sentence of a Security Force Court may award in addition to or without any one other punishment the punishment specified in clause c of sub section 1 of Section 48 and any one or more of the punishments specified in clauses e to 1 both inclusive of that sub section Chapter VII deals with the procedure of Secu rity Force Courts
Chapter IX prescribes the procedure to be followed by Security Force Courts for thai of offences
The Central Government has framed Rules in exercise of powers conferred by sub section 1 and 2 of Section 141 of the BSF Act 1968 Act 47 of 1968
These Rules are known as BSF Rules 1969
Rule 177 prescribes that The Commandant may under sub section 2 of Section 11 dismiss or remove from the service any person under his 279 command other than an officer or a subordinate officer
 On a consideration of the provisions of the BSF Act it is evident that the services of the enrolled persons under the BSF Act are governed by the provisions of the Act as well as the Rules framed thereunder
It is also evident that Chapter III which starts with Section 14 of the said act specifies the various offences under the Act
Section 19 of the said Chapter refers amongst others the following offences a absents himself without leave or b without sufficient cause overstays leave granted to him or c being on leave of absence and having received information from the appropriate authority that any battalion or part thereof or any other unit of the Force to which he belongs has been ordered on active duty fails without sufficient cause to rejoin without delay or   etc
 All these offences are to be tried by the Security Force Court which will punish the offenders with sentences as provided in the Act
Section 48 specifically provides that the Security Force Court may inflict punishment in respect of the following offences committed by the person subject to the said Act according to the following scale a death b imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody c dismissal from service       etc
 Section 50 further provides that A sentence of a Security Force Court may award in addition to or without any one other punishment the punish 280 ment specified in clause c of sub section 1 of Section 48   A procedure has been provided by BSF Rules for trial of the offences by the Security Force Court and for awarding of punishment
The order of dismissal of the appellant from service was assailed mainly on the ground that it was not made in accordance with the provisions of the Act and the Rules framed thereunder in as
much as there was no trial by the Security Force Court nor any order of punishment was awarded by the Security Force Court as required under the provisions of the Act
Section 112 of the Act empowers the Commandant who is the Prescribed Officer to dismiss or remove from service any person under his command other than an officer or a subordinate officer of such rank or ranks subject to the provisions of the said Act and the Rules
It has been urged that unless and until the offence of absence without leave or overstaying leave granted to a member of the Service without sufficient cause is tried by the Secu rity Force Court and punishment is awarded therefore as provided in Section 48 and Section 50 of the said Act the impugned order of dismissal from service by the Commandant for absence without leave and for overstaying leave without sufficient cause is illegal and as such it is liable to be quashed and set aside
It has been further submitted that the power of the Commandant as a Prescribed Officer under Section 112 being subject to sub section 4 of Section 11 ie the exercise of this power is subject to the provisions of the Act and the Rules that is the Commandant is not competent to dismiss the appellant from service unless the Security Force Court has tried the appellant and awarded punishment in accordance with the procedure prescribed by the Act and the Rules framed thereunder
The power of the Commandant to order a member of the Force other than an Officer or Subordinate Officer from service as provided under the Act read with Rule 177 of the Rules is subject to the limitation that unless the Security Force Court passes an order of conviction and sentence on the delinquent member of the Force following the procedure prescribed such an order cannot be made and enforced
It has therefore been submitted that the impugned judgment rendered by the High Court which held that the power under Section 112 read with Rule 177 of the said Rules was an independent power conferred on the Prescribed Authority ie the Commandant is not in accordance with law and as such the same requires to be set aside
It has however been urged on behalf of the State that the power conferred on the Commandant as Prescribed Authori ty under Section 281 12 to dismiss any person under his command from the service read with Rule 177 of the said Rules is an independ ent power as held by the High Court and as such the impugned order of dismissal from service of the appellant passed by the respondent is not at all arbitrary or illegal
We have scrutinised the relevant provisions of the BSF Act as well as the BSF Rules framed thereunder and we have no hesitation to hold that the power under Section 112 of the Act empowering the Prescribed Authority ie the Comman dant to dismiss or remove from service any person under his command other than an officer or a subordinate officer read with Rule 177 of the said Rules is an independent power which can be validity exercised by the Commandant as a Prescribed Officer and it has nothing to do with the power of the Security Force Court for dealing with the offences such as absence from duty without leave or overstaying leave granted to a member of the Force without sufficient cause and to award punishment for the same
The provision of sub section 4 of Section 11 which enjoins that the exercise of the power under the aforesaid Section shall be subject to the provisions of the Act and the Rules does not signify that the power to dismiss a person from service by the Commandant for his absence from duty without leave without any reasonable cause or for overstaying leave without suffi cient cause and holding him as undesirable cannot be exer cised unless the Security Force Court has awarded punishment to that person in accordance with the procedure prescribed by law
The Prescribed Authority ie the Commandant is competent to exercise the power under Section 112 of the said Act and to dismiss any person under his command as prescribed under Rule 177 of the BSF Rules
It is also to be noticed in this connection that Rule 6 of the said Rules has specifically provided that in regard to matters not specifi cally provided in the Rules it shall be lawful for the Competent Authority to do such thing or take such action as may be just and proper in the circumstances of the case
In this case though any procedure has not been prescribed by the Rules still the Commandant duly gave an opportunity to the appellant to submit his explanation against the proposed punishment for dismissal from service for his absence from duty without any leave and overstaying leave without suffi cient cause
The appellant did not avail of this opportunity and he did not file any show cause to the said notice
Thus the principle of natural justice was not violated as has been rightly held by the High Court
No other point has been urged before us by the learned counsel appearing on behalf of the appellant
282 In the premises aforesaid we do not find any merit in this appeal which is accordingly dismissed without costs
The judgment and decree of the High Court in SA No 22 of 1981 is confirmed
NVK Appeal dis missed


Summary:
The question that arises for determination in the ap peals is whether the hydrogenated rice bran oil manufactured by the Respondents could as claimed by them be classified under Tariff Item No 12
Respondent herein manufacture hydrogenated rice bran oil which is used as raw material in the soap making and in other industries
The Respondent flied a classification list classifying the said product under Tariff Item No 12 and claimed exemption from payment of excise duty
The Asstt
Collector of Central Excise who dealt with the matter held that the said Roods was a new product after manufacture having a distinct name Character and use and u such it fell under Tariff Item 68 CET and not Item 12
The Respondent preferred an appeal before the Appellate Collec tor of Central Excise Madras
The Appellate Collector reversed the order of the Asstt
Collector and held that hydrogenated rice bran oil is classifiable under Tariff Item 12 CET and granted the consequential relief
The order of the Collector was confirmed by the Customs Excise and Gold Control Appellate Tribunal
Hence the appeal under Section 35 L of the Central Excises  Salt Act by the Department
Dismissing the appeals the Court HELD Indubitably hydrogenation of rice bran 011 Is a process
But all processes need not be manufacture
It must be such a process which transforms the old articles Into goods and changes the identity use and the purpose of use in the goods undergone by the process
By 292 the process of manufacture a new identifiable goods in the market as such must come into being
295E F The melting point of the hydrogenated rice bran oil is 45degree C and it is in the nature of extra hardened vegeta ble process which is unfit for human consumption
It was taken to be classifiable under Tariff Item 68 CET
295F Rice bran oil is extracted out of rice bran by solvent extraction method
After such extraction rice bran oil obtained is in liquid form
The parties purchase rice bran oil from the market and process it
The process is as fol lows
The oil is heated to above 80degree C and the impuri ties are removed by adding oxalic acid and caustic lye
The purified oil is then bleached by heating it to 85xC to 100xC and thereby treating with fullers earth
The processed oil is then hardened by passing it through hydrogen gas
During hydrogenation the oil absorbs two atoms of hydrogen and the unsaturated ferry acid present in the oil becomes saturated
The oil is then in a semi solid condition and its melting point is raised to 45xC or more
In the hardened state the oil looks like Vanaspati or vegetable product to use the Central Excise terminology but there is a difference in the degree of hydrogenation of the two
295H 296A C In order to differentiate between the edible hydrogenat ed oils Vanaspati and super hydrogenated vegetable oils the latter are referred to as extra hardened oil or super hardened oil
296C D This hardening of oil is necessary for soap making otherwise the soap on coming into contract with water is likely to become soggy
The Respondents use the hardened oil for soap making in their factories
Besides its use in soap making the extra hardened oil is also put to various other industrial uses such as for application as greases
296D E It is obvious that hydrogenated oil is nothing but hardened vegetable oil which would fail within Item 12 CET for the purpose of Central Excise duty
300A Item 12 is more specific than Item 68 for all hardened technical oil not fit for human consumption and as such would be covered under this category
300G  Tungabhadara Industries Ltd vs The Commercial Tax Officer 293 Kurnool   followed
Champaklal vs State of Gujarat AIR 1980 SC 1889 IVP Ltd and Anr
vs Union of India  Ors and Vital  Vital Oil Pvt Ltd vs Collector of Central Excise Bombay  referred to