Orissa Forest Corpn. Vs. Addl. Collr. of C. Ex. and Cus. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1 did not accept the stand taken by the petitioner in view of the fact that the goods in question clearly answer to the descriptions specified in heading nos. 4524, 2525, 4528 and 4529 of 1990 decided on 13-7-1993 held that railway sleeper after having gone through the process of manufacture emerges as distinctly marketable product which has been described as 'the goods' by heading no.r.k. patra, j.1. by this petition under articles 226 and 227 of the constitution of india, the petitioner m/s. orissa forest corporation seeks quashing of the order, dated 29-12-1989 made by the additional collector, central excise and customs, bhubaneswar - opposite party no. l levying central excise duty amounting to rs. 4,665.83 on wooden railway sleepers and sawn sizes manufactured and removed during the period from 1-4-1986 to 2-4-1986. the said order is at annexure-1.2 the petitioner has a saw mill called m/s. jagannathpur saw mills at jagannathpur, p.o. : jeypore, district-koraput. on the allegation that it manufactured and cleared/removed excisable goods i.e. wooden railway sleepers and sawn sizes without payment of central excise duty, the petitioner was issued notice to show cause as to why necessary excise duty shall not be levied on it. pursuant to the notice, the petitioner filed its reply contending, inter alia, that railway sleepers and sawn sizes are not excisable goods as no transformation of raw materials is involved through manufacturing process. opp. party no. 1 did not accept the stand taken by the petitioner in view of the fact that the goods in question clearly answer to the descriptions specified in heading nos. 44.02 and 44.03 of the schedule to the central excise tariff act, 1985. as already indicated, the validity of this finding arrived at by opp. party no. 1 is the subject-matter of challenge in this petition.3 a bench of this court to which one of us (hon'ble r.k. patra, j.) was a party in o.j.c. nos. 4524, 2525, 4528 and 4529 of 1990 decided on 13-7-1993 held that railway sleeper after having gone through the process of manufacture emerges as distinctly marketable product which has been described as 'the goods' by heading no. 44.02 catalogued in the schedule to the central excise tariff act, 1985. with regard to sawn timber and wooden sawn sizes, the bench further held that they answer the description of 'goods' mentioned in heading no. 44.03 of the schedule. the aforesaid findings were arrived at on the basis of the principle that when legislature intends that wooden sawn or chipped lengthwise, sliced should be taken a distinct commercial goods on which excise duty is leviable, the relevant entries cannot be construed according to the strict or technical meaning of the language contained in it. in course of hearing of the present case, shri b.k. mohanty, learned counsel for the petitioner brought to our notice a decision rendered by a coordinate bench of this court in o.j.c. nos. 3151,3153 and 3154 of 1989 decided on 11-9-1992 in which it has been held that timber brought into existence by way of sawing does not invite levy of excise duty. we may note here that in all these cases including the present one, m/s. orissa forest corporation has been the writ petitioner. as such, it should have brought to the notice the judgment of this court rendered on 11-9-1992 when o.j.c. nos. 4524, 4525, 4528 and 4529 of 1990 were being heard. in the earlier writ petitions, namely o.j.c. nos. 3151,3153 and 3154 of 1989, the bench took the view that timber brought into existence by way of sawing does not invite levy of excise duty basing on the judgment of the supreme court in collector of central excise, madras v. kutty flush doors and furniture co. (p) ltd., a.i.r. 1988 s.c. 1164. the subsequent bench (as already indicated, to which one of us was a party) also took note of the judgment of the supreme court in m/s. kutty flush doors (supra) and for the reasons recorded in paragraphs 10 to 16 of the judgment, the bench held that the findings recorded by the excise authority that railway sleepers, sawn timbers and wooden sawn sizes are distinct commercial goods on which excise duty is leviable cannot be upset. this is not a case where the later bench did not notice the judgment of the supreme court in m/s. kutty flush doors (supra). after taking note of the ratio of the supreme court in the aforesaid and other judgments of the supreme court holding the field, the later bench declined to interfere with the order of the excise authority levying excise duty. apparently, there is conflict of opinion between two coordinate benches as to whether central excise duty is leviable on wooden sleepers and sawn sizes. in order to resolve this conflict of opinion, the matter should be heard by a larger bench.accordingly the present case may be placed before the hon'ble acting chief justice for appropriate order and direction.s. chatterji, j.i agree.