Organic Chemical Industries Limited Vs. Collector of Central Excise, Bombay  INSC 7 (6 January 1997)
BHARUCHA, K. VENKATASWAMI BHARUCHA,
proper construction of the word "derived from" will determine this
appeal against a judgment and order of the Customs, Excise & Gold (Control)
appellants are a refinery, recognised to be such by the Union of India. They
manufacture ethylene, butylene and propylene (" the said products").
It is their contention that the said products fall within item 11AA of the
Excise Tariff and that they are entitled to the benefit of an Exemption
Notification issued in respect of that item on 21st December, 1967, as amended from time to time, under Rule & of
the Central Excise Rules. The Revenue contends, basing itself on a Trade Notice
dated 24th November,
1984, that the said
products are manufactured from raw naphtha and, therefore, are not classifiable
under Item 11AA but under the residuary Item 68.
11AA deals with petroleum gases. Sun-item 2 thereof, which is relevant, reads
petroleum gases and gaseous hydrocarbons derived from refining of crude
petroleum or shale." ( Emphases supplied.) The said Exemption Notification
applies to goods falling, inter alia, under Item 11AA if they are
"produced in any premises (other than the premises wherein refining of
crude petroleum or shale or blending of non-duty paid petroleum or shale or
blending of non-duty paid petroleum products is carried on) declared under sub-rule
(2) of rule 140 of the Central excise Rules, 1944, to be a refinery". If
the said products are held to fall under Item 11AA, the said Exemption
Notification, it is not in dispute, will apply.
Tribunal noted the argument on behalf of the Revenue that the said products
were "not derived directly from refining crude petroleum. Refining of
crude petroleum means the first product obtained by refining of petroleum.
products in dispute in this case are derived from cracking raw naphtha"
which was Tariff Advice upon which the Revnue sought to change the
classification of the said products from item 11AA(2) to Item 68 took the
ground that the said products were not "derived directly" from crude
petroleum. The Tribunal stated that the point for decision was whether, for the
purpose of classification under Item 11AA(2), a product should be derived
directly from the refining of crude petroleum. Relying on a judgment of the
Gujarat High Court, it held that be the immediate result of refining of crude
petroleum". The said products but were obtained from raw naphtha purchased
from oil refineries.
the Tribunal accepted the contention of the Revenue that the said products were
not excitable under the said Item but under the residuary Item 68.
counsel for the appellants placed reliance upon the judgment of the is Court in
The Tata oils Mills Co, Ltd. vs. Collector of Central Excise, 1987 (43) E.L.T.
183 (S.C.). The question before this Court related to an Exemption
Notification; it exempted "soap as is made from indigenous rice bran oil
or from a mixture of such oil with any other oils" from a certain part of
the excise duty laviable thereon. This Court held that the requirement of the
notification was that the soap manufacture should be from rice bran oil as
contrasted with other types of oil.
was the ordinary meaning of the words used. The word might be construed
literally, but they had to be given their fullest amplitude and interpreted in
the context of the process of soap manufacture. There were no words in the
notification to restrict it only to cases were rice bran oil was directly used
in the factory claiming exemption and to exclude cases were soap was made by
using rice bran fatty acid derived from rice bran oil. The whole purpose and
object of the notification was to encourage the utilisation of rice bran oil in
the process of manufacture of soap in praforence to various other kinds of oil
used in such manufacture and this should not be defeated by an unduly narrow interpretat
on of the language of the notification even when it was clear that rice bran
oil could be used for manufacture of soap only after its conversion into fatty
acid or hydrogenated oil.
counsel submitted that the aforesaid judgment applied to the Tacts of this
case. It made no difference that the raw naphtha was procured by the appellants
from other factories. The point was that the said products were derived from
the refining of crude petroleum, and raw naphtha was an inter-mediate product
in such refining.
counsel drew attention to the judgment of the Gujarat High Court, upon which
the Tribunal had relied (New Bharat Industries (P) Ltd. vs. Collector of
Customs. Madras. 1983 E.L.T. 1134). Upon the
assumption contended on behalf of the Revenue that processed oil ceased to bear
the character of lubricating oil and become a new chemical compound. it was
there observed that the product derived from refining crude petroleum would be
covered by Item 11A, but if a different commodity was produced of made by
subjecting the "products derived from refining of crude petroleum" to
a process, it would not fall within the plain language of Item 11-A (now Item
11AA). Learned counsel submitted that the raw naphtha, produced from refining
crude petroleum, was not subjected by the appellants to a process to produce
the said products. The said products were the result of further refining.
counsel for the Revenue submitted that the raw naphtha was a separate
commercial commodity. It was the raw material from which the finished product,
that is, the said products, was manufactured by the appellants. It could not,
therefore, be said in a commercial sense.
the said products had been derived from cruds petroleum.
dictionaries state that the word "derive" is usually followed by the
word "from" and it means get or trace from a source; arise from,
originate in; show the origin or formation of.
use of the words "derived from" in Item 11AA(2) suggests that the
original source of the product has to be found. Thus, as a matter of plain
English, when it is said that one word is derived from another, often in
another language, what is meant is that the source of that word is another
word, often in another language. As an illustration, the word "democracy"
is derived from the Greek word "demos", the people, and most
dictionaries will so state. That is the ordinary menaing of the words
"derived from" and there is no reason to depart from that ordinary
petroleum is refined to produce raw naphtha. Raw naphtha id further refined, or
cracked, to produce the said products. This is not controverted. It seems to us
to make no difference that the appellants buy the raw naphtha from others. The
question is to be judged regardless of this, and the question is whether the
intervention of the raw naphtha would justify the finding that the said
products are not "derived from refining of crude petroleum". The
refining of crude petroleum produces various products at different stages. Raw
naphtha is one such stage. The further refining, or cracking, of raw naphtha
results in the said products.
source of the said products is crude petroleum. The said products must,
therefore, be held to have been derived from crude petroleum.
judgment of the Tribunal is erroneous on the basic question before it, and it
is therefore, not necessary for us to consider the aspect of limitation.
appeal is allowed and the judgment and order under appeal in set aside.
order as to costs.