Case: Orient Paper Mills Ltd Vs. Union of India

2. The facts and circumstances relating to C. A. 976 of 1966 may alone be stated. The appellant carries on business, inter alia of manufacturing and selling various kinds of paper and boards at its factory at Brajrajnagar in the district of Sambalpur in the State of Orissa. It manufactures various types and qualities of paper. It is stated that there are three types of paper which are principally manufactured. Those are Creamwove paper, map litho paper and writing paper. In the appeal the facts of which are under consideration we are concerned with creamwove paper on which excise duty was levied. From the year 1960 till July 1961 creamwove paper was being assessed as printing and writing paper under item 17 (3) of the First Schedule to the Act, the rate being 35 np. per Kg. Sometimes in July 1961 the Central Excise authorities required the appellant to send samples of the said paper to the Chemical Examiner of the Central Excise authorities for the purpose of chemical test. The appellant received a letter dated August 10, 1961 from the Superintendent, Central Excise. In a footnote it was stated that this paper of gram weight 116 and above per sq. metre was to be assessed under item 17 (10) in view of the Chemical Examiners report. It is not disputed that the rate under that item would be the same as under item 17 (1). The Collector of Customs issued instructions to the Deputy Superintendent whose duty was to make assessment of the appellant directing him to assess creamwove paper of a certain weight under item 17 (1) of the tariff at the rate of 50 np. per kg. with effect from September 5, 1961. By means of a letter dated September 7, 1961 the Deputy Superintendent informed the appellant that in accordance with the decision of the competent authority creamwove paper of the weights mentioned in the latter would be assessable as cartridge paper under item 17 (1) of the tariff in the Schedule. It was further stated that"I have also been directed to serve demands for short levy of excise duty on past clearances of creamwove paper, where due."The Deputy Superintendent addressed another letter dated September 13, 1961 to the same effect. It was added therein that map litho paper weighing 85 grams per sq. metre and above was also to be taken as cartridge paper for the purpose of assessment under item 17 (1) as per the decision of the competent authority. On September 19, 1961 the appellant made an inquiry from the Deputy Superintendent as to the basis on which classification in the matter of assessment of duty had been made. The Deputy Superintendent sent the following reply on September 20, 1961 :" ............. I am to inform you that the classifications as intimated to you in respect of thed varieties of paper are as per decision of the competent authority"It was further admitted in the letter of the Asstt. Collector Cuttack to the Collector. Central Excise dated April 7, 1962 that the classification of the paper in question was made under item 17 (1) of the tariff as cartridge paper in accordance with instructions contained in the Collectors letter of September 5, 1961. The Deputy Superintendent had made the assessment accordingly. As regards the copy of the Chemical Examiners Report it was stated that the matter had been referred to the higher authorities3. The Deputy Superintendent, Central Excise, had collected the excise duty on creamwove paper in accordance with item 17(1) of the tariff for the months of June and July 1962. The appellant lodged a claim with the Assistant Collector of Central Excise for refund of Rs. 38,809.81 being the sum assessed in excess. The Assistant Collector rejected the claim on the ground that no overcharge had been made. The appellant then appealed under S. 35 of the Act to the Collector of Central Excise and Customs which was rejected by him. The Central Government was thereafter approached under S. 36 on the revisional side. The revision petition was dismissed by an order made in the following terms :"The Government of India have carefully considered all the points made by the applicants, but they regret that they do not find any justification for interfering with the, which in correct in law and based on facts. The revision petition is accordingly rejected."

Reasoning:
In the present case, when the assessment is to be made by the Deputy Superintendent or the Assistant Collector, the Collector, to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the Collector issues directions by which the Deputy Superintendent or the Assistant Collector is bound no room is left for the exercise of his own independent judgment5. According to the learned Attorney General the assessment proceedings are not of al nature nor is the assessing authority al authority. We are unable to agree.It is apparent from the judgment referred to above and numerous other decisions of this court delivered in respect of various taxation laws that the assessing authorities exercisel functions and they have duty cast on them to act in a judicial and independent manner. If their judgment is controlled by the directions given by the Collector it cannot be said to be their independent judgment in any sense of the word. An appeal then to the Collector becomes an empty formality.In the previous decision of this court mentioned above the appeal and the revision had been rejected by the Collector and the Central Government on the ground that a direction had been issued by the Central Board of Revenue to the effect that the paper in question be treated as belonging to a particular classification. This court entertained no doubt that the direction given by the Board was invalid and it vitiated the proceedings before the Collector as well as the Government.Similarly in the present appeal the direction given by the Collector was invalid and the proceedings before the Deputy Superintendent or the Assistant Collector were vitiated. This position obtains in all the appeals although the type and quality of paper are different.The Central Government merely affirmed the order made by the Collector in each case and did not give any independent reasons for upholding the levy of duty made in accordance with the directions of the Collector6. It is unnecessary to deal with other points raised on behalf of the appellant because, in our opinion, these appeals must succeed on the ground that the impugned orders were vitiated for the reasons given and deserve to be set aside. We accordingly quash these orders. The assessing authorities, namely, the Deputy Superintendent or the Assistant Collector shall make fresh assessment of duty in accordance with law and thereafter the question of refund will be decided by the appropriate authorities.