Shah, J.
1. This Special Civil Application is filed by the petitioner Ambalal Sarabhai Enterprises Limited which is an incorporated Company under the Companies Act for a declaration that the 'steam' generated by the petitioner and shared by the four contributing units is not liable to excise duty under the provisions of the Central Excises and Salt Act, 1944. It is also prayed that the order dated 3rd April, 1980 (Annexure 'K') passed by the Assistant Collector, Customs and Central Excise, be quashed and set aside. With regard to the other prayers ('B') & (C) of paragraph 36, the learned Advocate General appearing on behalf of the petitioner has not pressed them.
2. It is contended by the learned Advocate General for the petitioner that the steam generated by the petitioner was not 'goods' as understood in the Excise Law within the meaning of Entry 68 which requires that on all other goods, not elsewhere specified manufactured in a factory, rate of duty is 1% ad valorem. He further contended that Sarabhai Common Services is a division of the petitioner-Company - Ambalal Sarabhai Enterprises Limited and is engaged in the activity of running utility services such as supply of steam, power, telephone, guest house, ambulance room, training etc. with the funds of different divisions of the petitioner-Company as well as with the funds of Symbiotics Limited. Arrangement was made for generating steam for utilising it for the petitioner-Company, Suhrid Geigy Limited and Synbiotics Limited. It is, therefore, contended that as per the Notification No. 118/75-Central Excises, dated 30th April, 1975 even if 'steam' is considered to be 'goods' falling under Item 68 of the First Schedule to the Central Excises and Salt Act, 1944 as it is manufactured in a factory and is intended for use in the factory of the same manufacturer, then it is fully exempt from payment of excise duty.
3. It is an admitted fact that Special Civil Application No. 675 of 1976 was filed by Sarabhai Chemicals Limited which was incorporated as Private Limited Company and was subsequently deemed to be a Public Limited Company. In that petition, interim order is passed by the Division Bench of the Court on 14/18th December, 1979. On the basis of the averments made in that petition it has been specifically stated that, in the campus in which the petitioner's factory is situated, the factories of three other manufacturers, namely, (1) Symbiotics Limited, (2) Suhrid Geigy Limited and (3) Sarabhai M. Chemicals are also located. The factories of all the aforesaid concerns use steam for processing and manufacturing activities. It was the case of Sarabhai Chemicals Limited that all the four manufacturers including the petitioner united and set up an organisation known as 'Sarabhai Common Services' with a view to getting various utility services under the cost sharing arrangement and that for that purpose each of the participating units contributed different items of capital assets which continued to be shown in the books of the participating units as their own assets. One of the common utility services provided by Sarabhai Common Services is steam which is supplied by Sarabhai Common Services from its boiler-house to the participating units on cost to cost basis plus surcharge of 15% to cover the overhead expenses. By the said order the Court directed the concerned authority to proceed further with the matter on the facts and directed the authority to complete the proceeding pursuant to the show cause notice within a period of three months from the date of the receipt of the writ. The Court has observed that the question of applicability of Exemption Notification No. 118 of 1975 depended for its resolution primarily upon the interpretation of the said notification in the light of the facts set out in the petition. It should be noted that in that petition vires of Section 3(1)(a) of the Central Excise Act and of Tariff Item 68 was sought to be challenged on the ground that it is ultra vires Articles 245, 246 and 265 of the Constitution.
4. In pursuance of the direction given by this Court, the Assistant Collector, Central Excise, has passed the final order. The Assistant Collector, Central Excise, Baroda has passed the order on 3rd April, 1980 wherein he has arrived at the conclusion that 'steam' is a 'goods' for purpose of levy of Central Excise duty. He considered that the process of making steam involved conversion of water into gas/vapour by heating the water to boiling point. He held that as a liquid substance becomes a gaseous substance by the aforesaid process, it can be said that a new substance comes into existence, just as in the case of 'ice', which is manufactured by cooling the water to freezing point.
5. Further, after considering the contentions raised by the petitioner he arrived at the conclusion that Sarabhai Common Services is a company/joint venture of four participating units, namely, (1) Sarabhai Chemicals Limited, (2) Symbiotics Limited, (3) Suhrid Geigy Limited and (4) Sarabhai M. Chemicals which is a division of S.M. Chemicals and Electronics Limited. He considered the fact that it is an admitted position by the petitioner that the four contributing units have contributed capital assets in Sarabhai Common Services in different proportions as mentioned in paragraph 4 of the writ petition filed before this Court (Special Civil Application No. 675 of 1976). As Sarabhai Common Services is a joint enterprises, the Exemption Notification No. 118/76 will not be applicable. He held that it cannot be said that Sarabhai Chemicals Limited or any other participating units is a factory belonging to Sarabhai Common Services. He, therefore, directed that excise duty at the rate of 1% on the quantity of steam cleared by Sarabhai Common Services as mentioned in the show cause notice should be recovered. That order is challenged by filling this petition.
6. Mr. Thakore, learned Advocate General appearing on behalf of the petitioner, vehemently submitted that 'steam' cannot be considered as 'excisable goods' as it is not marketable. For this purpose he relied upon the decision of the Supreme Court in the case of Union of India v. Delhi Cloth and General Mills - 1977 (1) ELT (J199) (SC) = AIR 1963 Supreme Court 791. In that case the Court held that excise duty is on the manufacture of goods and not on the sale. Therefore, the fact that the substance produced at an intermediate stage is not put in the market for sale would not make any difference. If from the raw material a new substance is brought into existence by the application of processes one or more of which are with the aid of power and the substance is the same as 'refined oil' as known to the market, an excise duty may be leviable under Item 23. But on the facts of that case the Court held that as the raw oil though purified in the process of manufacturing Vanaspati, is not deodorised before its hydrogenation, it does not become at any stage 'refined oil' as is known to the consumer and the commercial community and, therefore, no excise duty is leviable on it under old Item 23 of Schedule I as 'refined oil'. The Court further considered the meaning of word 'goods'. The Court held that for the purposes of excise duty under the Central Excises and Salt Act, 1944 the word 'goods' would mean 'bringing into existence of a new substance known to the market'. The relevant discussion is in paragraphs 17 & 18 which are as under :-
'(17) These definitions make it clear that to become 'goods' an article must be something which can ordinarily come to the market to be bought and sold.'
'(18) This consideration of the meaning of the word 'goods' provides strong support for the view that 'manufacture' which is liable to excise duty under the Central Excises and Salt Act, 1944 must be the 'bringing into existence of a new substance known to the market.' 'But,' says the learned Counsel, look at the definition of 'manufacture' in the definition clause of the Act and you will find that 'manufacture' is defined thus :
'Manufacture includes any process incidental or ancillary to the completion of a manufacture product.' [S. 2(f)]. We are unable to agree with the learned Counsel that by inserting this definition of the word 'manufacture' in S. 2(f) the legislature intended to equate 'processing' to 'manufacture' and intended to make mere 'processing' as distinct from 'manufacture' in the sense of bringing into existence of a new substance known to the market, liable to duty. The sole purpose of inserting this definition is to make it clear that at certain places in the Act and word 'manufacture' has been used to mean a process incidental to the manufacture of the article. Thus in the very item under which the excise duty is claimed in these cases, we find the words 'in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power.' The definition of 'manufacture' as in S. 2(f) puts it beyond any possibility of controversy that if power is used for any of the numerous processes that are required to turn the raw material into a finished article known to the market the clause will be applicable and an argument that power is not used in the whole process of manufacture using the word in its ordinary sense, will not be available. It is only with this limited purpose that the legislature, in our opinion, inserted this definition of the word 'manufacture' in the definition section and not with a view to make the mere 'processing of goods as liable to excise duty.'
The aforesaid judgment is followed by the Supreme Court in the case of Bhor Industries Ltd. v. Collector of Central Excise, Bombay - 1989 (40) ELT 280 (SC) = AIR 1989 SC 1153. The Supreme Court has also considered other cases on the same subject. In that case the question which was considered by the Supreme Court was whether crude PVC film fell for classification under Item 15(2) of the Central Excise Tariff or not. It was contended that crude PVC sheets were not marketable and had not acquired the character and status of PVC films as known to the market. The Court held that under the Central Excise Act, as it stood at the relevant time, in order to be goods as specified in the entry the first condition was that as a result of manufacture goods must come into existence. For, articles to be goods, these must be known in the market as such or these must be capable of being sold in the market as goods. Actual sale in the market is not necessary, user in the captive consumption is not determinative but the articles must be capable of being sold in the market or known in the market as goods. This was held after referring to the judgments in the cases of Union of India v. Delhi Cloth & General Mills - AIR 1963 SC 791; South Bihar Sugar Mills Ltd. v. Union of India - 1978 (2) ELT (J 336) (SC) = AIR 1968 SC 922, and Union Carbide India Ltd. v. Union of India - 1986 (24) ELT 169 (SC) = AIR 1986 SC 1097. The Court further held that the essential ingredient for excise duty on the goods is that there should be manufacture of goods. The goods being articles which are known to those who are dealing in the market having their identity as such. Section 3 of the Act enjoins that there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or 'manufactured' in India. The Court, therefore, held that marketability in the sense that goods are sold in the market or are capable of being sold and purchased in the market is essential ingredient in order to be dutiable under the Schedule to Central Excise Tariff Act.
7. The learned Advocate General, therefore, submitted that 'steam' cannot be said to be 'goods' subject to excise duty under Entry 68 of the First Schedule as it is not marketable. It is an accepted position that gas is held to be movable property for the purpose of excise duty. If gas is considered as 'goods', in our view there is no reason why 'steam' which is one form of gas should not be considered as 'goods'. It is a property which can be weighed. Its pressure can be measured. Further, it cannot be said that the 'steam' is not known in the market as 'goods'. It is known in the market where steam is required for manufacture of numerous goods. Steam is known to the market as a source of power since several years. It is also a known fact that steam is used for manufacturing or processing numerous articles or for operation of other numerous machines.
8. In the Webster's New Twentieth Century Dictionary one of the meanings of 'steam' is power, force, energy. The steam power can be used for various purposes including the running of steam-engine, steam-boat, steam-boilers, steam-car, steam-jacket, steam-chimney, steam-cylinder, steam-gas. 'Steam-gas' is defined as super heated steam. Further, 'steam heat' is defined to mean heat obtained from a steam-boiler by a closed system of conducting pipes, coils, radiators etc. 'Steam-pipe' means any pipe which conducts steam.
9. For contending that 'steam' is 'goods' and is liable to duty under Tariff Entry 68 of the Central Excise Tariff, the learned Advocate Mr. Naik has relied upon the observation's of the Division Bench of this Court in the case of The Associated Cement Companies Ltd., Bombay v. Union of India and Others - 1980 (6) ELT 712 (Guj.), wherein the Court has observed that there is no doubt or dispute about the fact that electric light and power is produced by the petitioner-Company exclusively for captive use only. So far as steam is concerned, if it was an independent product of the petitioner, probably it would have attracted the application of residuary Item 68. But as the petitioner in that case was producing steam in order to produce electric light and power, it was held to be an intermediate or component part of electric light and power and it merely represented the process of producing electric light and power, it did not attract taxability under residuary Item 68.
10. He has also placed reliance upon the Division Bench judgment of Hyderabad High Court in the case of Nizam Sugar Factory Ltd. v. Commissioner of Sales Tax - 1957 (8) Sales Tax Cases 61, wherein the Court has considered whether 'steam', that is 'goods' for the purposes of the Hyderabad General Sales Tax Act is any property visible, tangible, corporeal or movable. The Court held as under :-
'Gas has been held to be movable property for the purposes of theft in several English cases and in that of the Privy Council in Erie County Natural Gas Co., to which we have already adverted, it has been treated as goods. If gas is 'goods' there is no reason why steam should not be considered as goods. Steam is certainly a tangible property as it is visible, it has weight and it can be felt at any rate to the detriment of the person venturing to feel it.'
Therefore, it is apparent that 'steam' is known in the market as 'goods' and it can be used for various purposes. It is marketable through steam pipes.
11. In this view of the matter, in our view 'steam' is a 'goods' which is known in the market and is also marketable. Even taking the facts of the present case, it is apparent that the four Companies established one unit for producing steam and marketed it for a limited purpose i.e. for their use or consumption as agreed between them. Hence, there is no substance in the contention that 'steam' is not a 'goods'.
12. With regard to the second submission, the learned Advocate General contended that the notification No. 118/75, dated 20th April, 1975 (Annexure 'A') would be applicable as 'steam' was manufactured in a factory and was intended for use in the factory of the same manufacturer and, therefore, whole of the duty of excise leviable thereon is exempted. In our view, this contention is without any substance. It is an admitted fact that Sarabhai Common Services was producing 'steam' and it was distributed to various Companies. Therefore, it cannot be said that Sarabhai Common Services was manufacturing 'steam' for use in its own factory. Admittedly, Symbiotics Limited is a separate Company. Further, at the relevant time, Suhrid Geigy Limited was also a separate Company. It is also stated in the petition that Sarabhai Common Services was part of Sarabhai Chemicals Limited which was a different Company from Sarabhai M. Chemicals and Electronics Private Limited, S.G. Chemicals and Pharmaceuticals Limited till the year 1977. In Special Civil Application No. 675/76 in the order passed by this Court on the basis of the averments made in the petition it has been specifically stated as under :-
'The petitioner's (Sarabhai Chemicals Ltd.) factory is located in Baroda. In the campus in which the petitioner's factory is situated, the factories of three other manufacturers, namely, (1) Symbiotics Limited, (2) Suhrid Geigy Limited and (3) Sarabhai M. Chemicals are also located. The factories of all the aforesaid four concerns use steam for processing purposes in their manufacturing activities. The case of the petitioner, briefly stated, is that all the four manufacturers including the petitioner united and set up an organization known as Sarabhai Common Services ('SCS' for short) with a view to getting various utility services under a cost-sharing arrangement and that for that purpose, each of the participating units contributed different items of capital assets which continued to be shown in the books of the participating units as their own assets. One of the common utility services provided by SCS is steam which is supplied to SCS from its boiler-house to the participating units on cost to cost basis plus surcharge of 15% to cover the overhead expenses.'
Considering the aforesaid facts stated by the petitioner, it cannot be said that the petitioner is entitled to have benefit of the Notification No. 118/75 on the ground that steam was manufactured in a factory and was used in the factory of the same manufacturer.
13. Further, in the present case the Assistant Collector of Central Excise in his judgment and order has arrived at the conclusion that considering the various conflicting contentions raised by the petitioner, it seems that steam was supplied by Sarabhai Common Services to the four participating units of joint enterprises of having common services. He has also arrived at the conclusion that Sarabhai Common Services was not a division of Sarabhai Chemicals Limited because other four participating units have contributed assets and these assets continue to be under the ownership of respective participating units. This finding is based upon facts against which the petitioner has not filed any appeal as provided under the Act. These findings of facts are not open to challenge in this petition as disputed questions of facts cannot be dealt with or decided in this petition. In the result, there is no substance in the second contention also raised by the learned Advocate General.
14. Lastly, it was contended that the demand raised in the show cause notice Annexure 'M', dated 26-7-1980 for the period from 30th April 1975 to 31st March 1980 is time-barred. For this contention, reliance is placed upon the judgment in the case of Gokak Patel Volkart Ltd. v. Collector of Central Excise Belgaum - 1987 (28) ELT 53 (SC) = AIR 1987 Supreme Court 1161, wherein the Supreme Court considered the following direction given by the Karnataka High Court by its order dated 4-6-1976 in Writ Petition No. 2632 of 1976 :
'Pending disposal of the aforesaid Writ Petition, it is ordered by this Court that collection of excise duty as a fabric be and the same is here by stayed. It is further ordered that the petitioner shall, however, continue to pay excise duty as yarn and shall further maintain an account in square metres for future clearance.'
and held that the High court had directed stay of collection and had not given any interim direction in the matter of issue of notice of levy of the duty. The Explanation to Section 11A in clear terms refers to stay of service of notice. Therefore, the Explanation to Section 11A would not be applicable. The Court, therefore, held that as no notice seems to have been issued in the case in regard to the period in question, the statutory requirement for making demand is in contravention of the statutory provision. This judgment is followed by the Supreme Court in the case of Union of India v. Madhumilan Syntax Pvt. Ltd. - 1988 (35) ELT 349 (SC) = AIR 1988 Supreme Court 236.
15. In our view, for the aforesaid principle, there cannot be any dispute. Show Cause Notice is required to be issued to the person against whom any demand on ground of short levy or non-levy of payment of excise duty was proposed to be made within the prescribed time. In the present case, the facts are entirely different. It is an admitted fact that Sarabhai Chemicals Limited (at present the petitioner Ambalal Sarabhai Enterprises Limited) filed Special Civil Application No. 675 of 1976 before this Court. At the time of admission, the following order was passed :
'Rule. Ad-interim relief in terms of para 32(d). Notice as to interim relief returnable on 3-5-1976. Notice to Attorney General.
Dt. 26-4-1976.'
Paragraph 32(d) of that petition reads as under :-
'Pending hearing and final disposal of this petition Your Lordships will be pleased to grant interim injunction restraining the respondents, their servants and agents and their successors in office, as the case may be, from taking any action against the petitioner under the provisions of the Central Excise and Salt Act, 1944.'
That order was modified by this Court on 7-5-1976 :
'Interim relief in terms of para 32(d) on condition that the petitioner will maintain and furnish true and correct accounts monthly to the Excise authorities regarding the 'steam and co-operate with the Excise authorities in keeping a proper check and on further condition that the petitioner shall pay the amount of duty with 12 per cent interest in the event the petition fails and that the petitioner shall give bank guarantee for the aforesaid amount every quarter.'
16. Subsequently the matter was heard by the Division Bench consisting of P.D. Desai & G.T. Nanavati and by the order dated 14/18th December, 1979 the Division Bench modified the interim relief given by the Court by passing the following order :
'In the light of the aforesaid discussion, the further hearing of this petition is adjourned. The ad-interim order made herein on April 26, and confirmed with some modification on May 7 is further modified and the second respondent is permitted to continue the proceedings pursuant to the impugned show cause notice dated April 14, 1976 (Annexure 'J'). The said respondent will complete such inquiry and in this proceeding the order made by him at the termination of the inquiry within a period of three months from the date of the receipt of the writ. The petitioner will extend the necessary co-operation to the second respondent to enable him to complete the aforesaid inquiry within the time limit.'
In view of the aforesaid orders of this Court directing the authority not to take any action against the petitioner under the provisions of Central Excises and Salt Act, 1944, it was not open to the authority to issue any show cause notice making the demand for excise duty. If the authority had issued any such show cause notice, it would have been contempt of the Court as it would be in violation of the interim direction. It is unfortunate that inspite of this clear position, the petitioner has sought to rely upon the aforesaid decisions of the Supreme Court which are inapplicable to the facts of the present case. Mr. Raval, learned advocate appearing on behalf of the respondents, has rightly pointed out that the aforesaid plea of the petitioner is a dishonest one and raised only with a view to take undue advantage of the various orders passed by this Court and the order passed in Special Civil Application No. 675 of 1976 filed by the petitioner. He has submitted that this plea is raised only because interim stay order was granted by this Court and the petitioner has not paid a single pie for excise duty till today. He relied upon the following paragraphs of the judgment of the Supreme Court in the case of Empire Industries Ltd. v. Union of India - 1985 (25) ELT 179 (SC) = AIR 1986 Supreme Court 662, and submitted that the petitioner be directed to pay the excise duty with 18% interest :-
'58. Good deal of arguments were canvassed before us for variation or vacation of the interim orders passed in these cases. Different Courts sometimes pass different interim orders as the Courts think fit. It is a matter of common knowledge that the interim orders passed by particular Courts on certain considerations are not precedents for other cases which may be similar facts. An argument is being built now-a-days that once an interim order has been passed by this Court on certain factors especially in fiscal matters, in subsequent matters on more or less similar facts, there should not be a different order passed nor should there be any variation with that kind of interim order passed. It is submitted at the Bar that such variance creates discrimination. This is an unfortunate approach. Every Bench hearing a matter on the facts and circumstances of each case should have the right to grant interim orders on such terms as it considers fit and proper and if it had granted interim order at one stage, it should have the right to vary or alter such interim orders. We venture to suggest, however, that a consensus should be developed in the matter of interim orders.
59. If we may venture to suggest, in fiscal matters specially in cases involved indirect taxes where normally taxes have been realised from the consumers but have not been paid over to the exchequer or where taxes are to be realised from consumers by the dealers or others who are parties before the Court, interim orders staying the payment of such taxes until final disposal of the matters should not be passed. It is a matter of balance of public convenience. Large amounts of taxes are involved in these types of litigations. Final disposal of matter, unfortunately in the present state of affairs in our Courts, takes enormously long time and non-realisation of taxes for long time creates an upsetting effect on industry and economic life causing great inconvenience to ordinary people. Governments are run on public funds and if large amounts all over the country are held up during the pendency of litigations, it becomes difficult for the governments to run and it becomes oppressive to the people. Governments' expenditures cannot be made on bank guarantees or securities. In that view of the matter as we said before, if we may venture to suggest for consideration by our learned brethren that this Court should refrain from passing any interim orders staying the realisation of indirect taxes or passing such orders which have the effect of non-realisation of indirect taxes. This will be healthy for the economy of the country and for the Courts.'
In view of the aforesaid discussion there is no substance in the contention raised by the petitioner. The decision in the case of Gokak Patel Volkart Ltd. would have no application to the facts of the present case as there was specific stay order granted by this Court to the effect that the respondents were restrained from taking any action against the petitioner under the provisions of the Central Excises and Salt Act, 1944. Interim relief granted by the Karnataka High Court which is considered by the Supreme Court is in different terms by which the Department was not prohibited from taking any action against the petitioner of that case.
17. At the time of granting ad-interim relief the Court has passed the following order on 23-11-1981 :-
'Rule. To be heard in the first week of February 1982. Mr. H. M. Mehta waives notice for Respondents Nos. 1 and 2. Notice to Attorney General returnable on 21-12-1981. Ad-interim relief on the same conditions on which it was granted in Special C.A. No. 675/76 on May 7, 1976, namely, in terms of para 36(e) on condition that the petitioner shall maintain and furnish true and correct accounts monthly to the Excise authorities regarding the 'steam' and co-operate with the Excise authorities in keeping a proper check and on further condition that the petitioner shall pay the amount of duty with twelve per cent interest in the event the petition fails and that the petitioner shall give bank guarantees for the aforesaid amount every quarter.'
18. In view of the aforesaid order and considering the fact that the petitioner has not paid excise duty for 10 years, the petitioner is directed to pay excise duty with 12% interest. Rule discharged with costs.
19. At this stage, learned Advocate General submits that the order passed by this Court be stayed for a period of six weeks. Considering the facts as they are and the contentions raised by the petitioner, in our view this would not be a fit case for continuing the stay order even for a day as the petitioner has not paid the excise duty payable by him for more than 10 years. Hence the prayer is rejected.