ivil Appeal No. 539 of 1976.
From the Judgment and Order dated 26.8.1975 of the Gujarat High Court in Spl.
Civil Application No. 1627 of 1972.
Soli J. Sorabjee, Attorney General, A. Subba Rao, C.V.S. Rao, P. Parmeswaran and Ms. Nisha Bache for the Appellants.
S.K. Dhingra for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
By this appeal Union Government has challenged correctness of construction by High Court of Gujarat of notification No. 163 of 1965 issued under Rule 8 framed under Central Excise and Salt Act allowing exemption to all sorts of papers by "any factory commencing produc tion" to refer "not to the production of excisable goods paper in general failing under Item 17, but to pro duction of these specified exempted categories of paper in Column 2 of this notification" and canvasses for acceptance of the construction put on it by the Collector, Central Excise "that the factory must have commenced production on or after that date and not that the production of these items must have been commenced after the date".
M/s. Arvind Boards & Paper Products Limited, Antalia, Bilimora, Gujarat State, was established in 1942.
From 1944 when it went into production till 1964 it manufactured only straw boards and mill boards.
It expanded its activities in 1965 and commenced manufacture of duplex board.
The packing and wrapping paper was manufactured 661 on experimental basis in 1966 and on commercial basis after 1967.
In December, 1971 the company wrote a letter to the Assistant Collector of Central Excise inquiring as to wheth er the company would be entitled to exemption under notifi cation No. 163/65 both in respect of the production at tributable to its installed capacity as in 1967 as well as in respect of the production attributable to its expanded capacity.
In 1972 it was informed that it would be entitled to concession under Column 5 of the Table of the notifica tion in respect of the production attributable to the en larged capacity, namely, the third machine only.
Consequent ly the claim of the petitioners for exemption on capacity as it existed in 1967 was not accepted.
The order was main tained in appeal as well.
The Appellate Collector held: "I do not agree with the appellant 's contention that the Assistant Collector erred in holding that "any factory which commenced production" related to any factory manufacturing paper falling under Item 17 of the said schedule irrespec tive of the varieties manufactured thereof.
The exemption contained in the aforesaid Notification No. 163/65 as amend ed is in respect of the goods.
Said exemption is conditional i.e. it is applicable to paper produced in a factory which commenced production on or after a specific date.
Therefore, the condition is that the factory must have commenced pro duction on or after that date and not that the production of these items must have been commenced after that date.
" The High Court did not agree with the construction of the Notification made by the Collector (Appeal) and held: "That is why the whole controversy has arisen as regards these key words "commencement of production".
On a plain literal construction, bearing in mind the context of the exemption, where only certain specified categories of paper which is excisable item as specified in Column 2 had been exempted, it is obvious that the commencement of production must refer not to the production of excisable goods paper in general falling under item 17, but to production of these specified exempted categories of paper in Col. 2 of this notification.
Any other interpretation would make the speci fication of various kinds of paper in Column 2 which alone attracted exemption redundant and would make even this condition in Cols.
3, 4 and 5 unworkable.
" Excise duty was leviable under the Act on manufacture and clearance of paper under Item 17 of Schedule 1 to the Act.
It reads as 662 "MANUFACTURED GOODS CLASSIFIED CHIEFLY BY MATERIAL 17.
PAPER, all sorts (including pasteboard, millboard.
straw board and cardboard), in or in relation to the manu facture of which any process is ordinarily carried on with the aid of power '.
XXX XXX XXX (3) Printing and writing paper, packing and wrapping paper, straw board and pulp board, including grey board, corrugated board, duplex and triplex boards, other sorts . . 35 paise per kg." In 1965 the Central Government issued notification exempting papers of all sorts, from so much of the excise duty levi able thereon under the said item read within notification for the time being in force issued by the Central Government in relation to the duty so leviable, as is specified in the corresponding entry in Columns 3, 4, 5(a), 5(b) & 5(c) of the Table as the case may be: TABLE section Des Any factory Any factory Any factory commen cription which comm which comm production for the enced pro enced pro time on or after the duction duction on 1st March, 1964, or before the or after the any factory existing 1st April, 1st April, immediately, before 1961.
1961 but the 1st March 1964 before the whose production 1st March capacity has been 1964.
enlarged and brought into operation on or after the extent such production is attributable to the enlarge capacity.
During the During During the first 12 the period months of second subsequent the com 12 mon to the first mencement mence 24 months of produc ment of of the com duction.
produc mencement of produc tion.
663 1 2 3 4 5(a) 5(b) 5(c) Entitlement of exemption depends on construction of the expression "any factory commencing production" used in the Table extracted above.
Literally exemption is freedom from liability, tax or duty.
Fiscally it may assume varying shapes, specially in a growing economy.
For instance tax holiday to new units, concessional rate of tax to goods or persons for limited period or with the specific objective etc.
That is why its construction, unlike charging provi sion, has to be tested on different touchstone.
Infact an exemption provision is like an exception and on normal principle of construction or interpretation of statutes it is construed strictly either because of legislative inten tion or on economic justification of inequitable burden or progressive approach of fiscal provisions intended to aug ment state revenue.
But once exception or exemption becomes applicable no rule or principle requires it to be construed strictly.
Truly, speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it.
When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about ap plicability is lifted and the subject fails in the notifica tion then full play should be given to it and it calls for a wider and liberal construction.
Therefore, the first exer cise that has to be undertaken is if the production of packing and wrapping material in the factory as it existed prior to 1964 is covered in the notification.
From the table extracted above it is clear that it is in two parts and exemption is allowable in the first part to the factory commencing production on or after 31st March, 1964, and in the second part to the existing factory to extent of enlarged capacity.
If the first part is read in isolation it is susceptible of construction as was adopted by the High Court.
But the notification has to be read in its entirety and constured as a whole.
Once that is done cloud of uncertainty disappears.
A close reading of both the parts together leaves no room for doubt that it was intended to be exhaustive granting exemption to all factories produc ing packing and wrapping paper whether existing or commenc ing production from 1st March, 1964.
To the former to the extent of enlarged capacity and to latter to full extent.
The ambiguity arose because of absence of words new before 'factory ' or goods after the word 'production ' in the first clause.
To harmonise it the High Court added the words 'goods '.
But what was lost sight of that the words 'commenc ing ' in the first part and 'existing ' in the second part had to be read in juxtaposition.
That is all those factories which were existing from before 664 were entitled to exemption on production of goods to the extent of enlarged capacity.
This enlargement could be as a result of installation of additional machinery.
The word 'capacity must necessarily relate to capacity of factory and not to goods.
For instance a factory with capacity of say 1 lakh kg. of paper but producing only 75 thousand kg.
achiev ing maximum after 1964 could not be covered in the clause as the production cannot be held to be due to enlarged capaci ty.
That could be only if the capacity to produce goods increased due to installation of additional machinery.
If this be true and correct, as it appears to be, then the first part presents no difficulty.
The expression 'commenc ing production ' has to be read as commencing production of goods by a factory which was not existing and has started production on or after 1st March, 1864.
Any other construc tion shall result in discrimination.
A factory like respond ent existing from 1942 producing straw board and mill board shall be entitled to exemption on production of wrapping and packing paper on construction of the expression 'commencing production ' by the High Court even though it switched over from straw board and mill board to packing and wrapping paper after the relevant date whereas another unit existing and producing wrapping and packing paper itself from before 1st March, 1964 could not be entitled to exemption except to the extent of enlarged capacity.
That is if an existing unit would have installed a new machinery it would have been entitled to exemption of production only to that extent whereas any unit producing goods other than the exempted goods would become entitled to exemption in respect of entire production.
That could not have been the intention.
A construction which results in inequitable results and is incongruous, has to be avoided.
Therefore, production of packing and wrapping paper by respondent was entitled to exemption only to the extent it was attributable to enlarged capacity and not to the existing capacity.
Hansraj Goverdhan vs
H.H. Dave, Asstt.
Collector, Central Excise & Customs, Surat and Others, relied on behalf of respondent demonstrates mis conception about interpreting an exemption provision.
It was a case where goods of third persons were manufactured by cooperative society.
But once initial hurdle was crossed and it was held that goods had been produced by cooperative society it was found squarely covered in the notification and the Court extended it to goods manufactured by third persons and repelled the submission that object of granting exemption was to encourage formation of cooperative societies and it should be confined to goods manufactured by its members and not others.
Similarly in Commissioner of Income Tax vs Madho Prasad, ; the provision 665 allowing exemption to 'such part of the income in respect of which the said tax is payable.
under the head 'property ' as is equal to the amount of rent payable for a year ', was construed liberally and it was held that the expression 'equal to the amount of rent payable for a year ' did not 'warrant the inference that the benefit of exemption ' could 'be claimed only once ' because the amount of rent which was sought to be deducted in more than one years was found squarely to fall in Item 36 of notification.
It was again a case of interpreting an exemption notification at later stage.
Recently in Tata Oil Mills Co. Ltd. vs Collector of Central Excise, ; , exemption was to soap made from indigenous rice bran oil as against edible oil.
The assessee was engaged in manufacture of soap from rice bran fatty acid which was extracted from rice bran oil, in assesses factory.
It was found rice bran oil as such could not be used unless it was converted into fatty acid.
Therefore the assessee was covered in the notification.
Once the ambiguity or about manufacture of soap from rice bran fatty acid was removed the Bench proceeded to construe the word "indigenous" in the notification liberally.
In Collector of Central Excise vs Parle Exports (P) Ltd., AIR 1989 644 this Court while accepting that exemption clause should be construed liberally applied rigorous test for determining if expensive items like Gold Spot base or Limca base or Thums Up base were covered in the expression food products and food preparations used in item No. 68 of First Schedule of Central Excise and Salt Act and held 'that it should not be in consonance with spirit and the reason of law to give exemption for non alchoholic beverage basis under the notification in question. ' Rationale or Ratio is same.
Do not extend or widen the ambit at stage of applicability.
But once that hurdle is crossed construe it liberally.
Since the respondent did not fall in the first clause of the notification there was no question of giving the clause a liberal construction and hold that production of goods by respondent mentioned in the notification were entitled to benefit.
In the result this appeal succeeds and is allowed.
The order of the High Court is set aside and the Writ Petition is dismissed with costs.
R.N.J. Appeal allowed.

Summary:
The Respondent Company which was established in 1942 went into production in 1944 manufacturing Straw Boards and Mill boards only uptil the year 1964.
In 1965 it expanded its activities by manufacturing duplex board.
In the follow ing year it started manufacturing packing and wrapping paper on experimental basis and on commercial basis after 1967.
Sometime in 1971 the Company wrote to the Assistant Collec tor of Central Excise enquiring as to whether it would be entitled to exemption from duty under Notification No. 163/1965 both in respect of production attributable to its installed capacity as in 1967 as well as in respect of production attributable to its expanded capacity.
The As sistant Collector passed an Order holding the company was entitled to concession under column 5 of the Table of the Notification No. 163 of 1965 in respect of production at tributable to its enlarged capacity namely, the third ma chine and rejected its claim for exemption on production attributable to its capacity as it existed in 1967.
Dissat isfied the company preferred appeal to the Appellate Collec tor who maintained the order of the Assistant Collector.
The Respondent Company thereupon moved the High Court by a writ petition under Article 226 of the Constitution of India.
In allowing the writ Petition the High Court held that on a plain literal construction it is obvious that the commencement of production must refer not to the production of excisable goods paper in general failing under item 17.
but to production of those specified exempted categories of paper in column 2 of the aforesaid notification.
Hence this appeal by the Union of India.
Allowing the appeal and dismissing the Writ Petition of the Company.
this Court.
HELD: When the question is whether a subject falls in the Notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is removed and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction.
[663D E] A close reading of both parts of the Notification together leaves no 660 room for doubt that it was intended to be exhaustive grant ing exemption to all factories producing packing and wrap ping paper whether existing or commencing production from 1st March.
1964 to the former to the extent of enlarged capacity and to latter to the full extent.
[663G H] As the Respondent Company did not fall in the first clause of the notification there was no question of giving the clause a liberal construction and hold that production of goods by the Respondent mentioned in the Notification were entitled to the benefit.
Production of packing and wrapping paper by Respondent was entitled to exemption only to the extent it was at tributable to enlarged capacity and not to the existing capacity.
[665F; 664F] Hansraj Goverdhan vs H.H. Dave, Asstt.
Collector, Cen tral Excise & Customs, Surat and Others, [1969] 2 S.C.R. 2.52; Commissioner of Inome tax vs Madho Prasad, ; ; Tara Oil Mills Co. Ltd. vs Collector of Central Excise, ; referred to.