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Dharti Agro Chemicals Pvt. Ltd., through its General Manager, Sanjay & Another v/s The Commissioner of Central Excise, Nagpur-II & Another

    Writ Petition No. 1176 of 2017

    Decided On, 29 August 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE R.K. DESHPANDE & THE HONOURABLE MR. JUSTICE ARUN D. UPADHYE

    For the Petitioners: Arshad Hidayatullah, Senior Advocate assisted by A.J. Bhoot, Advocate. For the Respondents: R1, S.N. Bhattad, R2, S.A. Chaudhari, U.M. Aurangabadkar, Advocates.



Judgment Text

Oral Judgment: (R.K. Deshpande, J.)

1. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.

2. The challenge in this petition is to the order dated 8-3-2018 passed by the Commissioner, CGST & CX, Nagpur, in the proceedings of show cause notice, holding that 36 products of fertilizers marketed as 'Plant Growth Promoters' (PGP) manufactured and removed by the petitioners during the period from 1-12-2011 to 6-9-2016 are classifiable as excisable goods under different items of tariff in the First Schedule to the Central Excise Tariff Act, 1985, attracting the excise duty at the rate of 12.36% to 12.50%, as shown in the order.

3. The claim of the petitioners is that all 36 products manufactured and marketed by them contain at least one of the fertilising elements of Nitrogen, Phosphorus or Potassium as an essential constituent and the products are known as 'PGP'. According to the petitioners, these products are covered by the term 'other fertilizers' in Note 6 under Chapter Heading 3105 in the First Schedule to the Central Excise Tariff Act, 1985, attracting the duty at the rate of 1%, which they have paid. According to the petitioners, the absorption of micronutrient and other elements is not possible without the presence of at least one of the elements of Nitrogen, Phosphorus or Potassium as an essential constituent called as N P K.

4. The composition of products manufactured by the petitioner is scrutinized on the basis of the Test Reports and the guidelines given in Circular No.1022/10/2016CX, dated 6-4-2016. The argument advanced by the petitioners, based on the Test Reports, that miniscule quantity of Nitrogen (N), Phosphorus (P) or Potassium (K) is sufficient to classify their product as 'other fertilizers' under Sub-Heading 3105, has been rejected by the Commissioner. The reason assigned is that the percentage of micronutrients in these products is so negligible that they can never serve as an efficacious source of micronutrients. It is held that the products bear essential character of micronutrient and, therefore, they merit classification under Chapter 28/29 alone, and if despite the negligible percentage of N or P or K in these products they were to be catogorized as commercial nutrients, then that would be an absolute travesty of logic. It is further held that the argument of the petitioners that the word 'essential' so as to mean 'predominant', lacks logic. It is held that the classification of the product by the Department on the basis of what constitutes their essential character and not on the basis of what is predominant in it.

5. The finding recorded in the order impugned is that though there is a difference between the products of 'Plant Growth Regulators' and 'Plant Growth Promoters', there is nothing on record that the products at Serial Nos.21 to 40 only promote growth in the plants and, therefore, they are liable to be classified as 'Plant Growth Regulators' only. On the basis of the data available and the provisions of the circular dated 6-4-2016, it is concluded that the PGP products are basically a source of micronutrient and bear essential character of micronutrient only. When the attention of Shri S.N. Bhattad, the learned counsel for the Department, was invited to the contents of the said circular, which clearly indicated that it is in respect of the products called as 'Plant Growth Regulators', he submitted that there is no difference between 'Plant Growth Regulators' and 'Plant Growth Promoters' so far as the definition of 'other fertilizers' employed in Note 6 under Chapter Heading 3105 is concerned.

6. According to Shri Arshad Hidayatullah, the learned Senior Advocate, assisted by Shri A.J. Bhoot, Advocate for the petitioners, the petitioners are constrained to approach this Court basically to challenge the circular No.1022/10/2016CX, dated 642016, which travels beyond the scope of the provision of Section 37B of the Central Excise Act, 1944 ('the said Act') to enlarge the definition of 'other fertilizers' by construing the 'essential constituent' means the 'essential character'. According to him, the circular offends the language employed in Note 6 under Chapter Heading 3105. The Department as well as the Appellate Authority are bound by the circular, leaving no scope to accept any other interpretation in conformity with the plain language of the provision. Reliance is placed upon the decision of Delhi High Court in the case of Vistar Construction (P) Ltd. v. Union of India, reported in 2013(31) S.T.R. 129 (Del), the decision of Punjab & Haryana High Court in the case of Vardhman Polytex Limited v. Union of India, reported in 2001(135) E.L.T. 17 (P & H), and the decision of the Apex Court delivered on 6-12-2017 in Civil Appeal No.137 of 2009 in the case of Assistant Commissioner, Commercial Taxes & Ors. v. LIS (Registered).

7. Shri Bhattad, the learned counsel appearing for the Department, submits that in terms of Proviso (b) to Section 37B of the said Act, the circular issued would not interfere with the discretion of the Commissioner of Central Excise (Appeals) in exercise of his appellate functions. He submits that the question of applicability of the circular can be considered by the Tribunal. According to him, the circular is clarificatory in nature and the Tribunal is not bound by the interpretation placed by the said circular upon the statutory provisions. He submits that all the questions can be agitated in appeal. Shri Bhattad has relied upon the decision of the Apex Court in the case of Commissioner of Central Excise, Bangalore v. Karnataka Agro Chemicals, reported in (2008) 7 SCC 343, to urge that the matter is essentially required to be decided by the Tribunal.

8. The undisputed position emerging from the findings recorded in the order impugned and the rival contentions urged before this Court appears to be that the implementation of the circular dated 6-4-2016 makes a substantial difference in the classification of the products manufactured and removed by the petitioners. In the present petition, we, therefore, propose to consider only the following two questions :

(1) Whether the circular No.1022/10/2016CX, dated 6-4-2016 issued by the Central Board of Excise and Customs travels beyond the scope of the jurisdiction under Section 37-B of the Central Excise Act, 1944 and is violative of Note 6 in Chapter Heading 3105 defining the term other fertilizers?, and

(2) Whether the Appellate Authority is bound by the circular dated 6-4-2016 having no jurisdiction to set it aside even if it is found running beyond the scope of power under Section 37B of the Central Excise Act, 1944 and violative of Note 6 under Chapter Heading 3105 in the Central Excise and Tariff Act, 1985?

9. The circular in question has been issued in exercise of the power conferred by Section 37B of the said Act and the same being relevant, is reproduced below :

'37-B. Instructions to Central Excise Officers. - The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods, issue such orders, instructions and directions to the Central Excise Officers as it may deem fit, and such officers and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the said Board:

Provided that no such orders, instructions or directions shall be issued -

(a) so as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner; or

(b) so as to interfere with the discretion of the Commissioner of Central Excise (Appeals) in the exercise of his appellate functions.'

The purpose of conferring power upon the Central Board of Excise and Customs ('CBEC') under Section 37B of the said Act to issue orders, instructions and directions is to maintain uniformity (i) in the classification of excisable goods, or (ii) with respect to levy of duties of excise on such goods. The proviso therein is crucial and couched in the negative language incorporating the important principles of administrative law to prohibit – (a) requiring any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner, or (b) interfering with the discretion of the Commissioner of Central Excise (Appeals) in the exercise of his appellate functions.

10. In our view, the proviso statutorily restrains CBEC from issuing any order, instruction or direction either requiring any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner, or to interfere with the discretion of the Commissioner of Central Excise (Appeals) in exercise of his appellate functions under the garb of maintaining uniformity in the classification of excisable goods or with respect to levey of duties of excise on such goods. Issuance of any such orders, instructions or directions would amount to making an absolute travesty of law, which cannot be sustained.

11. In the present case, Note 6 in Chapter 31 contains heading 3105, giving the description of goods as under :

'MINERAL OR CHEMICAL FERTILISERS CONTAINING TWO OR THREE OF THE FERTILISING ELEMENTS Nitrogen, Phosphorus AND Potassium; OTHER FERTILISERS; GOODS OF THIS CHAPTER IN TABLETS OR SIMILAR FORMS OR IN PACKAGES OF A GROSS WEIGHT NOT EXCEEDING 10 KG.'

The rate of duty prescribed is of 1%. Note 6 in Chapter 31 reads as under :

'6. For the purposes of heading 3105, the term 'other fertilisers' applies only to products of a kind used as fertilisers and containing, as an essential constituent, at least one of the fertilising elements Nitrogen, Phosphorus or Potassium.'

The petitioners claim that 36 products manufactured by them, which are the subject-matter of the show cause notice and the order impugned, are classifiable as 'other fertilizers' in terms of the aforesaid provision and the excise duty of 1% has been paid by them.

12. The circular dated 6-4-2016 issued by CBEC in exercise of its power under Section 37B of the said Act is on the subject of 'Classification of Micronutrients, Multi-micronutrients, Plant Growth Regulators and Fertilizers – reg.' The circular recites in Paragraph 1 that the issue of classification of micronutrients, multi-micronutrients, plant growth regulators and fertilizers has remained a disputed area in Central Excise. To bring clarity to the issue of classification thereof, it was decided to take opinion of Indian Agricultural Research Institute (IARI) on various issues relating to micronutrients such as – what constitutes micronutrients, its usage, distinction from plant growth regulator, if any, etc. in the light of the opinion received from IARI, Central Excise Tariff and explanatory notes of HSN, nature, usage and classification of micronutrients, multi-micronutrients, plant growth regulators and fertilizers is explained in the paragraphs of the circular.

13. It is thus apparent that the object of issuing the said circular is to clarify the issue of classification of micronutrients, multi-micronutrients, plant growth regulators, and fertilisers, which, according to CBEC, remained a disputed area. The classification on the issues of micronutrients, such as – what constitutes micronutrients, its usage, distinction from plant growth regulators, if any, etc., is on the basis of the opinion of Experts IARI. The said circular issues detailed guidelines to classify not only the tariff item heading in Chapter 31, but also in Chapters 28, 29 and 38.

14. Paragraph 2.1 of the said circular explains what is meant by micronutrients as essential nutrients required in small quantities for the normal growth and development of plants, which consist of Iron (Fe), Manganese (Mn), Zinc (Zn), Copper (Cu), Boron (B), Molybdenum (Mo), Nickel (Ni), and Chlorine (Cl). It states that though these elements are called as 'minor' or 'trace' elements, this does not mean that they are less important than the macronutrients. The instructions are to classify micronutrients on the basis of the details given in the reply on the subject by IARI. It states that in the trade parlance, the sale of micronutrients as microfertilizers would not lead to a classification under Chapter 31 as 'fertilizers' for the purposes of the Central Excise Tariff.

15. Paragraph 4 of the said circular dealing with the 'fertilizers' classified under Chapter 31 of the Central Excise Tariff and Tariff Act classifies Note 6 above that for any product to merit classification under CETH 3105 as 'other fertilizers', the product must have Nitrogen or Phosphorus or Potassium or their combination as an essential constituent providing the essential character to the product. It further clarifies that the chemical elements – Nitrogen, Phosphorus and Potassium are also referred as micronutrients or primary fertilizer elements and are required in higher quantity by the plants. Paragraph 4.2 clarifies that any product where the essential elements are not Nitrogen or Phosphorus or Potassium or their mixture would not merit classification under CETH 3105.

16. Paragraph 5 of the said circular clarifies that the mixtures of micronutrients/multi-micronutrients with fertilizers are also manufactured and sold. They shall be classified according to their essential characters and general rules for interpretation of the schedule to the tariff. Where the essential constituent giving character to the mixture is one or more of the three elements, namely Nitrogen, phosphorous or Potassium, the mixture shall be classified under any of the heading of Chapter 31, depending upon its composition. It clarifies that where the essential character of the product is that of mixture of micronutrients/multi-micronutrients having predominantly trace elements, it shall be classified under CETH 3824 as chemical products not elsewhere specified or included.

17. Paragraph 6 of the said circular states that the past circulars of the Board on the subject issued on 21-11-1994 and 19-5-1998 stand rescinded and the classification of micronutrients, multi-micronutrients, plant growth regulators and fertilizers shall be governed by the clarification contained in this circular to the extent the product under consideration is covered by the circular.

18. After going through the contents of the said circular and reading Note 6 in Chapter 31 in the light of it, we are of the opinion that the said circular extensively provides guidelines to classify the products covered by various headings in Chapters 28, 29, 31 and 38. Not only that, but the circular interprets, clarify and declare what is meant by the term 'other fertilizers' in Note 6 of Chapter 31, which applies only to the products of a kind used as fertilizers and containing, as an essential constituent, at least one of the fertilizing elements Nitrogen or Phosphorus or Potassium. It holds that in the trade parlance, the sale of micronutrients as 'micronutrient fertilizers' would not lead to classification thereof under Chapter 31 as 'fertilizers' for the purposes of the Central Excise Tariff. It clarifies that for any product to merit classification under CETH 3105 as 'other fertilizers', the product must have Nitrogen or Phosphorus or Potassium or their combination as an essential constituent providing essential character to the product. Thus, the circular explains the term 'essential constituent' to mean essential character, which is broader in nature than the earlier.

19. The question whether the products manufactured by the petitioners are classifiable as 'other fertilizers', defined in Note 6 of Chapter Heading 3105, need to be decided by the Adjudicating Authority where the appeal filed by the petitioners is pending. It is for the Adjudicating Authority to go into the composition of each product to find out - (i) whether it is a Plant Growth Regulator or Promoter qualifying for classification of the product as 'other fertilizers'?, (ii) whether the percentage of N P K is present in the product in a sufficient quantity to classify the product as 'fertilizer'?, (iii) whether the word 'essential' in Note 6 in Chapter Heading 3105 means 'predominant'?, (iv) whether the term 'essential constituent' in Note 6 can be construed as 'essential character'?, and (v) whether any such interpretation is legal, valid or permissible in law and so on? It is a matter of appreciation of oral and documentary evidence, the opinion of Experts, their crossexamination, if any. All these questions need to be decided in the facts and circumstances of the case. We, therefore, leave all such questions to be decided by the Adjudicating Authority, as was done by the Apex Court by its decision in the case of Commissioner of Central Excise, Bangalore v. Karnataka Agro Chemicals, reported in (2008) 7 SCC 343, relied upon by Shri S.N. Bhattad, the learned counsel for the respondent No.1, and we do not intend to comment upon it in any manner.

20. The question is whether the circular can be issued to provide an extended meaning to the term 'essential constituent' employed in Note 6 in Chapter 31. In our view, the answer would be clearly in the negative. The interpretation of the terms of the Statutes cannot be guided by the circulars, which merely represents the understanding of the statutory provisions by the Department. It is for the Court to declare what the particular provision of the Statute says and it is not for the Executive. Apart from this, to construe the term 'essential constituent' as 'essential character' by issuing circular amounts to adding the words or altering the language of the Statute, which is the function of the Legislature only. If the interpretation placed upon Note 6 in the circular is to be accepted, it would amount to foreclosing the discretion conferred upon the quasi judicial authority, leaving no scope to deal with the question and take a view different from the one contained in the circular. The circular requires the Central Excise Officers to make a particular assessment or to dispose of a particular case in a particular manner. In our view, therefore, the said circular cannot be sustained and has to be set aside on the ground that it travels beyond the scope of the authority under Section 37B of the said Act and violates the restraint or prohibition statutorily imposed under the proviso therein. The question No.(1) is, therefore, answered accordingly.

21. Now coming to the question No.(2) as to whether the Appellate Authority is bound by the circular having no jurisdiction to set it aside, we would like to refer to certain decisions, relied upon by Shri Arshad Hidayatullah. The Division Bench of Punjab & Haryana High Court in the case of Vardhman Polytex Limited v. Union of India, reported in 2001 (135) E.L.T. 17 (P & H), has held in paragraph 8 as under :

'8. In our opinion, the twofold objection raised by the respondents to the maintainability of the writ petitions deserves to be rejected. Admittedly, the petitioners have challenged the vires of circular dated 19-10-2000 on the ground that the Board does not have the power under the 1944 Act to issue such circulars and the same is ultra vires to the statutory notifications issued under Section 5A(1) of the said Act. If the Court upholds their plea, then the action for recovery of AED in respect of clearances made in DTA cannot be taken against the petitioners. Therefore, the writ petitions cannot be termed as premature. As regards the plea of alternative remedies, it is sufficient to observe that neither the appellate authority nor any other adjudicating authority appointed under the 1944 Act can grant a declaration that the circular issued by the Board is ultra vires to the provisions of the 1944 Act or the exemption notifications issued under Section 5A(1) thereof. In view of this, the petitioners cannot be non-suited on the ground that after passing of the adverse orders, they can avail remedies of appeal, etc.'

The aforesaid decision answers two objections raised by the Department in the present petition - (i) that the Appellate Authority has jurisdiction to independently interpret the statutory provisions, and (ii) that because of the existence of such alternate remedy, the writ petition is not maintainable. In the above decision, the Court has held that the writ petition cannot be said to be premature, as neither the Appellate Authority nor any other Adjudicating Authority appointed under the 1944 Act can grant a declaration that the circular issued by the Board is ultra vires to the provisions of the 1944 Act.

22. The learned Single Judge of Madras High Court in the decision in the case of Madura Coats Ltd. v. C.B.E. & C., New Delhi, reported in 2004 (163) E.L.T. 164 (Mad.), has held in paragraphs 8 and 9 thereof as under :

'8. It is well settled that by issuing circular under Section 37B of t he Excise Act, the Board cannot shut down the quasi judicial power of the Authorities under the Excise Act and the Tariff Act. (see 1978 (2) E.L.T. (J345) (S.C.) = 1969 SC 48 (Orient Paper Mills Ltd. v. Union of India), (1994) 210 ITR 129 (Kerala Finance Corporation Ltd. v. CIT), and 1994 (73) E.L.T. 25 (Indian Rayon Industries Limited v. Union of India). In such view of the matter, the Circular must be taken to be illegal and ultra vires and is hereby quashed.'

'9. In course of hearing it was also contended that since the writ petition has been filed at the stage of show cause, such writ petition is premature. Since the notice itself was issued on the basis of the circular, it is obvious that such circular is likely to be followed by the concerned Authorities, and therefore, filing of the writ petition cannot be said to be premature and such circular, which is contrary to the provisions of the Finance Act, cannot be sustained. For the aforesaid purpose, the decision of this Court in (1995) 216 ITR 240 (Mad.) (Madras Bar Association v. CBDT) is applicable.'

It is held that by issuing circular under Section 37B of the said Act, the Board cannot shut down the quasi judicial power of the Authorities under the Excise and Tariff Act, and since the notice of show cause was issued on the basis of the circular, it is obvious that such circular is likely to be followed by the concerned Authorities and, therefore, filing of the writ petition cannot be said to be premature. The circular was quashed.

23. The judgment of the Apex Court in the case of Union of India v. Karvy Stock Broking Ltd., reported in 2015 (39) S.T.R. 705 (S.C.), is short and the same is, therefore, reproduced below :

'The undisputed facts are that the Government had issued Notification No.13 of 2003S. T. whereby it exempted the 'Business Auxiliary Services provided by a commission agent' from the Service Tax leviable thereon under subsection (2) of Section 66 of the Finance Act, 1994. Thereafter, Circular dated 5-11-2003 was issued in which it is stated that having regard to some doubts that had arisen regarding application of Service Tax on the activity of mutual fund distribution,

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it was clarified that the commission received by distributors on mutual fund distribution would be liable to Service Tax as it would not fall within the expression 'Business Auxiliary Services'. This circular dated 5-11-2003 has been set aside by the High Court in the impugned judgment on the ground that it amounts to foreclosing discretion or judgment that may be exercised by the quasi-judicial authority while deciding a particular lis under particular circumstances. The High Court referred to the proviso to Section 37B of the Central Excise Act, 1944, which categorically states that such kind of circulars cannot be issued. We, thus, do not find any error in the impugned judgment. This appeal is accordingly dismissed.' It is held that the High Court was right in setting aside the circular, as it amounts to foreclosing the discretion or the judgment that may be exercised by the quasi judicial authority while deciding a particular lis. 24. From the aforesaid decisions, it is very clear to us that the issuance of circular under Section 37B of the said Act is the statutory exercise of the power which binds not only the Departmental Authorities but also the quasi judicial authorities functioning under the Act to adjudicate the disputes based upon such circular. The competency to issue such circular or the question of such circular being ultra vires the power conferred, cannot be gone into by the Tribunals constituted under the Act, even if it finds that it interfers with exercise of its discretion. It is not the question of applicability of circular which is involved in this case, but it is the question of interference with the exercise of discretion by the quasi judicial authority which is involved. The only remedy available is to challenge such circular by filing the writ petition by invoking the jurisdiction under Article 226 of the Constitution of India. The question No.(2) is, therefore, answered accordingly. 25. In the result, this petition is allowed and the order is passed as under : (1) The Circular No.1022/10/2016CX, dated 6-4-2016 issued by the Central Board of Excise and Customs in exercise of its power under Section 37B of the Central Excise Act, 1944, is hereby quashed and set aside, being ultra vires. (2) The parties are relegated back to the appellate jurisdiction where the appeal is pending for decision of the remaining questions in accordance with law. (3) The challenge on merits of show cause notice is left open to be decided by the Appellate Authority. 26. Rule is made absolute in the aforesaid terms. No order as to costs.
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