Travancore Rayon Ltd. Vs. Union of
India [1969] INSC 314 (28 October 1969)
28/10/1969 SHAH, J.C.
SHAH, J.C.
HEGDE, K.S.
CITATION: 1971 AIR 862 1970 SCR (3) 40 1969
SCC (3) 183
CITATOR INFO:
E 1977 SC 567 (23,24) RF 1988 SC1737 (82) RF
1990 SC1984 (28)
ACT:
Speaking Order-Central Excise and Salt Act,
1944, s. 36Revisional jurisdiction of Central Government-Necessitv of speaking
order while rejecting application-oral hearing--When advisable.
HEADNOTE:
The appellant company was assessed to excise
duty on the consumption of "nitro-cellulose lacquer" produced by it.
The company denied that the chemical compound
Produced and utilised by it was "nitrocellulose lacquer" within the
meaning of the Central Excise and Salt Act, 1944. The Assistant Collector of
Customs confirmed the assessment.
The Collector of Customs, in appeal, gave the
company a personal hearing and rejected the company's claim by a detailed
order. Against this order the company invoked the revisional jurisdiction of
the Central Government under s.
36 of the Act. The petition was entertained
but no personal hearing was girven to the company. The Government rejected the
petition by an order which read :
"The Government of India have carefully
considered the points made by the applicant(s), but see no justification for
interfering with the order in appeal. The revision application is accordingly
rejected." The Company appealed to this Court.
HELD : The case must be remanded to the
Central Government to be disposed of according to law.
(i)The Central Government is by a. 36
invested with the judicial power of the State. A party who approaches the
Government in exercise of a statutory right for adjudication of a dispute is
entitled to know at least the official designation of the person who has
considered the matter, what was considered by him, and the reasons for
recording a decision against him. To enable the High Court or this Court to
exercise its constitutional powers, not only the decision, but an adequate
disclosure of materials justifying an inference that there has been a judicial
consideration of the dispute by an authority competent in that behalf in the
light of the claim made by the aggrieved party, is necessary. The Court insists
upon disclosure of reasons in support of the order on two grounds : one, that
the party aggrieved in a proceeding before the High Court or this Court has the
opportunity to demonstrate that the reasons which persuaded the authority to
reject his case were erroneous, the other, that the obligation to record
reasons operates as a deterrent against possible arbitrary action by the
executive authority invested with the judicial power.
[43 E-H; 46 D] Madhya Pradesh Industries Ltd.
v. Union of India, [1966] 1 S.C.R. 466 held overruled by Bhagat Raja v. Union
of India, [1967] 3 S.C.R. 302.
State of Madhya Pradesh & Anr. v. Seth
Narsinghdas Jankidas Mehta, C.A. No. 621 dated 29-4-69, State of Gujarat v.
Patel Raghav Natha & Ors. [1970] 1 S.C.R. 335 and Prag Das U mar Yaishva v.
Union of India, C.A. No. 723 of 1965 decided on 21-4-69referred to.
In this case the communication from the
Central Government gave no reasons in support of the order; it did not disclose
the "points" which 41 were considered, who considered the points, and
the reasons for rejecting them [46 B] (ii) Where complex and difficult
questions requiring familiarity with technical problems, as in the present
case, are raised, it would conduce better administration and mote satisfactory
disposal of the grievances of the citizens if personal hearing is given. [43
B-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 2252 of 1966.
Appeal by special leave from the order No.
543 of 1966 dated July 16, 1966 of the Government of India, Ministry of
Finance, New Delhi in Central Excise Revision Application.
S. Mohan Kumaramangalam, Soli J. Sorabji, A.
K. Varma, Ravinder Narain, J. B. Dadachanji, and O. C. Mathur, for the
appellant.
V. A. Seyid Muhammad and S. P. Nayar, for the
respondents.
B. R. Agarwala, for intervener No. 1.
Soli J. Sorabji, Ravinder Narain and j.
B.Danchanji, for entervener No. 2.
The Judgment of the Court was delivered by
Shah, J. The appellant Company is engaged in the production of cellulose film.
The Central Excise Inspector reported that the appellant Company was producing
in its factory nitro-cellulose acquer falling under tariff Item No. 22 (iii)
(i) No. 14 (iii) (i) of the First Schedule to the Central Excise & Salt
Act, 1944, read with the Finance Act, 1955]; without obtaining a central excise
licence as required by the rules and was also removing nitroillulose lacquer
for "internal use" without payment of duty. The appellant Company
denied that the chemical compound utilised by to render plain film
moisture-proof was "nitro-cellulose lacquer" within the meaning of
the Central Excise & Salt Act, 1944.
The Deputy Superintendent of Central Excise,
determined that the appellant Company was liable to pay, for the period between
March 1, 1955 and September 19, 1962, Rs. 4,88,79734 as cise duty on the
consumption of nitro-cellulose lacquer proceed by the Company. The Deputy
Superintendent issued a mand notice, but the appellant Company failed to pay
the duty.
The Assistant Collector of Customs required
the appellant company to show cause why penalty should not be imposed on it the
failing to obtain a licence for production of nitrocellulose licquer. The
appellant Company contended that what was proceed by it was not nitro-cellulose
lacquer. The Assistant Colloctor rejected the contention and confirmed the
order of assessment and imposed a penalty of Rs. 25/-.
In appeal to the Collector, the appellant
Company raised a range number of contentions-including the following 170-4 42
(1) that nitro-cellulose lacquer which is clear as well as pigmented falls
within the purview of Item 14 of the First Schedule to the Central Excise &
Salt Act, 1944, and that clear and white, or murky and pigmented lacquer is not
subject to duty;, (2) that a certificate of test issued by the Silk Mills
Research Association, Bombay showed that the nitro-cellulose lacquer content of
a sample of surface-coating compound produced by the appellant Company was only
4.7% and it could not be considered nitro-cellulose lacquer within the meaning
of the Act; and (3) that the failure to levy duty on the product from 1955 to
1962 was proof of the fact that the Excise Department was itself of the view
that the product was not excisable.
The. Collector of Customs consulted the
Chemical Examination and was of the view that the opinion expressed by the Silk
Mills Research Association, Bombay, was not correct. In considering the,
question about the reason for not levying duty for nearly several years, the
Collector thought it necessary to give a fresh hearing to the appellant
Company. Additional arguments were advance at the second hearing. After
considering the arguments advanced by the appellant Company the Collector wrote
a detailed judgment setting out the "points" on which he held against
the claim of the appellant Company, and expressed the view that the appellant
Company was not right in contending that only that chemical which is
"clear and pigmented" falls within the purview of Item 14 of the
First Schedule.
Against the order dismissing the appeal, the
appellant Company moved a petition invoking the revisional jurisdiction of the
Central Government under s. 36 of the Central Excise & Salt Act 1944. The
petition was entertained, but no -personal hearing was given to the appellant
Company. By order dated July 11 1966, communicated by the Joint Secretary to
the Government of India, Ministry of Finance, the petition was rejected. The
order read :
"The Government of India have carefully
considered the points made by the applicant(s), but see no justification for
interfering with the order in appeal. The revision application is accordingly
-rejected." Against the order passed by the Central Government this appeal
preferred with special leave.
43 The question raised before the Collector
of Customs was of a complicated nature and for its proper appreciation required
familiarity with the chemical composition and physical properties of
nitro-cellulose lacquer and of the substance produced by the appellant Company.
The Collector in deciding the appeal wrote an order running into 18 typed
pages. There were before the Collector conflicting opinions of the Chemical
Examiner and the Silk Mills Research Association, Bombay. The Collector gave
two personal hearings to the appellant Company. No personal hearing was given
by the Government of India to the appellant Company even though the matter
raised complex questions. It is true that the rules do not require that
personal hearing shall be given, but if in appropriate cases where complex and
difficult questions requiring familiarity with technical problems are raised,
personal hearing is given, it would conduce to better administration and more
satisfactory disposal of the grievances of citizens. The order does not
disclose the name or designation of the authority of the Government of India
who considered "the points made by the applicants", and it is
impossible to say whether the officer was amiliar with the subject-matter so
that he could decide the dispute without elucidation a.-id merely on a perusal
of the papers. The form in which the order was communicated is apparently a
printed form. There is a bare assertion by the Joint Secretary to the
Government of India in his communication that the Government of India had
"carefully considered the points made by the applicant(s)". 'there is
no evidence as to who considered the "points" and what was
considered. The Central Government is by s.36 invested with the judicial power
of the State Orders involving important disputes are brought before the
Government. The orders made by the Central Government are subject to appeal to
this Court under Art. 136 of the Constitution. It would be impossible for this
Court, exercising jurisdiction under Art.
136, to decide the dispute without a speaking
order of the authority,. setting out the nature of the dispute the arguments in
support thereof raised by the aggrieved party and reasonably disclosing. that
the matter received due consideration by the authority competent to decide the
dispute. Exercise of the right to appeal to this Court would be futile, if the
authority chooses not be disclose the reasons in support of the decision
reached by it. A party who at broaches the Government in exercise of a
statutory right for Adjudication of a dispute is entitled to know at least the
official designation of the person who has considered the matter, what was
considered by him, and the reasons' for recording a decision against him. To
enable the High Court or this Court to exercise its constitutional powers, not
only the decision, but an adequate disclosure of materials justifying an
inference that there has been a judicial consideration of the dispute, by an
authority competent in 44 that behalf in the light of the claim made by the
aggrieved party, is necessary. If the Officer acting on behalf of the
Government chooses to give no reasons, the right of appeal will be devoid of
any substance.
Dr. Seyid Muhammad appearing for the Union of
India contended that where the Central Government dismisses the petition, it is
not obliged to give any reasons, for, it must be assumed that the Government
had accepted every reason given by the Collector, and by dismissing the
petition the Officer acting on behalf of the Government must be deemed to have
incorporated the reasons given by the Collector in the judgment. Counsel relies
in support of this contention on the decision of this Court in Madhya Pradesh
Industries Ltd. v. Union of India and Others(1). In that case, Bachawat, J., on
behalf of himself and Mudholkar, J., refused to accept the contention that the
order passed by the Government of India rejecting a. revision application under
the Mineral Concession Rules was liable to be quashed, because it did not give
any reasons. Bachawat, J., observed at p. 477 "There is a vital difference
between the order of reversal by the appellate authority in that case for no
reason whatsoever and the order of affirmance by the revising authority in the
present case. Having stated that there was novalid ground for interference, the
revising authority was not bound to give fuller reasons. It is impossible to
say that the impugned order was arbitrary, or that there was no proper trial of
the revision application." On the other hand, Subba Rao, J., observed at
p. 472 "The least a tribunal can do is to; disclose its mind. The
compulsion of disclosure guarantees consideration. The condition to give
reasons introduces clarity and excludes or at any rate minimizes arbitrariness;
it gives satisfaction to the party against whom the order is made: and it also
enables an appellate or supervisory court to keep the tribunals within bounds.
A reasoned order is a desirable condition of judicial disposal.
"The conception of exercise of
revisional jurisdiction and the manner of disposal provided in r. 55 of the
Rules are indicative of the scope, and nature of the Government's jurisdiction.
If tribunals can make order,-, without giving reasons, the said power in the
hands of unscrupulous or dishonest officers may turn out to be a (1) [1966] 1
S.C.R. 466.
45 weapon for abuse of power. But if reasons
for an order are given, it will be an effective restraint on such abuse, as the
orders, if it discloses extraneous or irrelevant considerations , will be
subject to judicial scrutiny and correction. A speaking order will at its best
be a reasonable and at its worst be at least a plausible one. Tile public should
not be deprived of this only safeguard.
cannot be expected to change from function to
function or from act to act. So it is essential that some restrictions shall be
imposed on tribunals in the matter of passing orders affecting the rights of
parties; and the ,least they should do is to give reasons for their
orders....... Ordinarily, the appellate or revisional tribunal shall give its
own reasons succinctly; but in a case of affirmance where the original tribunal
gives adequate reasons, the appellate tribunal may dismiss the appeal or the
revision, as the case may be, agreeing with those reasons.
What is essential is that reasons shall be
given by an appellate or revisional tribunal expressly or by reference to those
given by the original tribunal. The nature and the elaboration of the reasons
necessarily depend upon the facts of each case." In a later judgment
Bhagat Raja v. The Union of India and Others(1), the Constitution Bench of this
Court in effect overruled the judgment of the majority in Madhya Pradesh
Industries Ltd's case(1). The Court held that the decisions of tribunals in
India are subject to, the supervisory powers of the High Court under Art. 227
of the Constitution and of appellate powers of this Court under Art. 136. The
High Court and this Court would be, placed under a great disadvantage if no
reasons are given and the. revision is dismissed by the use of the single, word
'rejected' or 'dismissed'. The Court in that case held that the order of the
Central Government in appeal, did not set out any reasons of its. own and on
that account set aside that order. In our view, the majority judgment of this
Court in Madhya Pradesh Industries Ltd's case(1) has been overruled by this
Court in Bhagat Raja's. case(1).
In later decisions of this Court it was held
that where the Central Government exercising power in revision gives no
reasons, the. order will be regarded as void : see State of Madhya Pradesh and
Another v. Seth Narsinghdas Jankidas Mehta;(3); The State of (1) [1967] 3.
S.C.R. 302.
(2) [1966] 1 S.C.R 46 (3) C.A. No. 621 of
1966 decided on April 29, 1969.
46 Gujarat v. Patel Raghav Natha and
Others(1); and Prag Das Umar Vaishya v. The Union of India and Others (2).
In this case the communication from the
Central Government gave no reasons in support of the order : the appellant
Company is merely intimated thereby that the Government of India did not see
any reasons to interfere "with the order in appeal". The
communication does not disclose the "points" which were considered,
and the reasons for rejecting them. This is a totally unsatisfactory method of
disposal of a case in exercise of the judicial power vested in the ,Central
Government. Necessity to give sufficient reasons which disclose proper
appreciation of the problem to be solved, and the mental process by which the
conclusion is reached, in cases where a non-judicial authority exercises
judicial functions, is obvious. When judicial power is exercised by an
authority normally performing executive or administrative functions, this Court
would require to be satisfied that the decision has been reached after due
consideration of the merits of the dispute, uninfluenced by extraneous
considerations of policy or expediency. The Court insists upon disclosure of
reasons in support of the order on two grounds : one, that the party aggrieved
in a proceeding before the High Court or this Court has the opportunity to
demonstrate that the reasons which persuaded the authority to reject his case
were ,erroneous : the other,, that the obligation to record reasons operates as
a deterrent against possible arbitrary action by the ,executive authority
invested with the judicial power.
The appeal is allowed and the order passed by
the Central Government is set aside. The -case is 'remanded to the Central
Government with the direction that it be disposed of according to law. In this
case, we are of the view, having regard to the -complicated and technical
questions involved, that the Central Government may be well-advised to give an
oral hearing to the appellant Company. The Union of India will pay the costs of
this appeal to the appellant Company.
Y.P.
Appeal allowed.
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