# ORIENT PAPER MILLS LTD v. UNION OF INDIA

- **Citation:** [1966] 3 S.C.R. 657
- **Court:** Supreme Court of India
- **Decided:** 1966-02-25
- **Case number:** Civil Appeal No. 212 of 1956
- **Bench:** P. B. Gajendragadkar C.J, K.N. Wanchoo, M. Hidayatullah, J. c. SHAH, S. M •. Sjkri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/orient-paper-mills-ltd-v-union-of-india-3646
- **Pages:** 6

## Headnote

Supreme Court Rules, 1950, Schedule III, Part II, Entry 2-Claim for
refund of a definite amount of excise duty-Disallowed by Excise authorities-Appeal to Supreme Court under Art. 136-Court fee payable.
The appellant claimed refund of a specific amount as excess amount of
excise duty recovered from it by assessing it under a wrong item, but the'
excise authorities rejected the claim and
the appellant's revision applicatron to the respondent was also dismissed.
In its application for leave
to appeal to this Court under Art. 13 6, the appellant challenged the order
of the respondent on the assumption that the order under appeal had been
passed by the respondent acting as a Tribunal, and reiterated its claim for
the specified amount. The appellant contended that only fixed court fee
of Rs. 250 was payable because it was not poosible to estimate at a money
value the subject matter in dispute and not fee on an ad valorem basis
at the rate prescribet! in Entry 2 in Schedule III, Part II of the Supreme
Court Rules.
HELD : The claim made by the appellant was for a definite, ascertained amount and thereiore it is not a case where it is not possible to
estimate at a money value the subject matter in dispute.
Nor can it be
said that if the appeal before this Court succeeds, it would still be necessary for the appellant to take any further steps to recover the amount of
refund, because. this Court can direct the appropriate authorities to grant
the refund. Therefore, the appellant should pay court fee as prescribed
by Entry 2 in Part II of Schedule III of the Supreme Court Rules, on an
ad valorem basis.
[661 G-H; 662 E, Fl
Order in Civil Appeal No. 212 of 1956, explained.

## Text

-,
'
~
•
B
~
'
c
I
D
F
G
H
ORIENT PAPER MILLS LTD.
v.
UNION OF INDIA
February 25, 1966
[P. B. GAJENDRAGADKAR C.J., K.N. WANCHOO,
M. HIDAYATULLAH, J. c. SHAH AND
S. M •. SJKRI, JJ.]
Supreme Court Rules, 1950, Schedule III, Part II, Entry 2-Claim for
refund of a definite amount of excise duty-Disallowed by Excise authorities-Appeal to Supreme Court under Art. 136-Court fee payable.
The appellant claimed refund of a specific amount as excess amount of
excise duty recovered from it by assessing it under a wrong item, but the'
excise authorities rejected the claim and
the appellant's revision applicatron to the respondent was also dismissed.
In its application for leave
to appeal to this Court under Art. 13 6, the appellant challenged the order
of the respondent on the assumption that the order under appeal had been
passed by the respondent acting as a Tribunal, and reiterated its claim for
the specified amount. The appellant contended that only fixed court fee
of Rs. 250 was payable because it was not poosible to estimate at a money
value the subject matter in dispute and not fee on an ad valorem basis
at the rate prescribet! in Entry 2 in Schedule III, Part II of the Supreme
Court Rules.
HELD : The claim made by the appellant was for a definite, ascertained amount and thereiore it is not a case where it is not possible to
estimate at a money value the subject matter in dispute.
Nor can it be
said that if the appeal before this Court succeeds, it would still be necessary for the appellant to take any further steps to recover the amount of
refund, because. this Court can direct the appropriate authorities to grant
the refund. Therefore, the appellant should pay court fee as prescribed
by Entry 2 in Part II of Schedule III of the Supreme Court Rules, on an
ad valorem basis.
[661 G-H; 662 E, Fl
Order in Civil Appeal No. 212 of 1956, explained.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 659-664 of
1965.
Appeals by special leave from the judgment and order dated
October 5, 1963 of the Government of India, Ministry of Finance,
Department of Revenue, New Delhi in Central Excise Revision
Applications Nos. 720-725 of 1963.
A. K. Sen, B. P. Maheshwari and M. S. Narasimhan, for the
Appellant.
N. S. Blndra and B. R. G. K. Achar, for the respondent.
The Judgment of the Court was delivered by
Gajendragadkar, C. J, What is the appropriate amount of
court-fees payable on the petition of appeal filed by the appellant,
Orient Paper Mills Ltd., under Schedule III, Part II of the Supreme
Court Rules, 1950, that is the short question of law which arises
for our decision in this matter.
The appellant carries on the business of manu!acturing and
Selling paper and paper board, and is registered as such under the
657
658
SUPUKB OOUJ.T
llEPOl.1'8
(1966] 3 S.C.R.
Central Excise and Salt Act, 1944 (No. I of 1944)
(hercinaft~'I'
called 'the Act'). The respondent, the Union of India, charges
excise duty under Rule 9 of the Rules framed under the Act on the
paper manufactured by the appellant before the manufactured
goods are cleared out of the appellant's ware-house. Among
various kinds of paper which the appellant manufactures and sells,
are included 'Packing and Wrapping' and 'Printing and Writing
Paper'. The aforesaid 'Printing and Writing Paper' is of varioui;
varieties and it includes Machine Glazed Poster popularly known
as M.G. Posters.
Prior to the Finance Act of 1961, the printing and writing
paper was classified and charged under item 17(3) of the Schedule
to the Act and the wrapping paper was charged under item 17{ 4)
of the Schedule; even so, the duty on both the items was the same,
viz., 0 · 22 P. per kilogram. Th.z duty under item 17(4) was, however,
enhanced by the Finance Act of 1961 and increased to 0·35 P. per
kilogram from the !st March, 1961. About six months after the
enhanced duty came into force, the Excise authorities decided that
the M.G. Poster manufactured by the appellant should be charged
under item 17{4) and demand notices were issued accordingly for
the different months during which the said paper was manufactured.
In consequence of this demand, a total sum of Rs. 2,79,175-27 P.
was collected from the appellant as difference in the duty leviable for
the assessment periods covered by the several appeals which are
pending in this Court and with which we are concerned in the
present proceedings.
As a result of these demands, the appellant had to pay the
duty which it did under protest. Thereafter, it claimed a refund
under Rule 11 of the Rules framed under the Act. This Rule
prescribes a period of three months within which a claim for refund
can be made "in consequence of the sum having been paid through
inadvertance, error or misconstruction''. The appellant urged
that the duty on the goods in question was chargeable under item
17(3) and not under item 17(4) of the Tariff Rules. One of the
reliefs claimed by the appellant in its petitions of appeal was that
the Excise authorities be directed to assess the poster paper under
item 17(3) and not under item 17(4) and to make a direction as
to the refund of the excess amount recovered from the appellant.
The excess amount of which refund was thus claimed came to
Rs. 84,928-84 P. This application was rejected by the Assistant
Collector of Central Excise, Cuttack Division, Cuttack.
Against the said decision, the appellant preferred an appeal to
the Collector of Central Excise under s. 35 of the Act. In its appeal
memo to the Collector, the appellant had claimed that the order
under appeal should be rexoked and Rs. 84,928-84 P. should be
refunded to it. A further claim was made by the appellant that the
excise authorities should be directed to assess the poster paper
A
B
I'
•
j
,l
c '
D
I ,
F
G
H
•
B
D
E
I'
G
H
ORIENT MILLS v. UNION (Gajendragadkar, C.J.)
659
under item 17(3) and not under item 17( 4). The said appeal was
rejected by the Collector of Customs on 28-7-1962.
The appellant then moved the respondent by way of revision
under s. 36 of the Act. In its revision application, the appellant
made prayers similar to those which it had made before the Appellate
Authority. This revision application was also dismissed. It is
against this revisional order that the appellant has come to this
Court by special leave under Art.
136 of the Constitution. It
appears that in the various paragraphs of its application for leave,
the appellant has reiterated its claim for refund of money recovered
from it in excess of the amount legitimately due from it and has
challenged the order of the Excise authorities rejecting its claim in
that behalf. On these facts, the question which arises is: can the
appellant be permitted to pay a court-fee of Rs. 250 on its petitions for appeal, or is it necessary that it ought to pay court-fees
at the rate prescribed by sub-clause (2) of entry 2 in Schedule III,
Part II of the Supreme Court Rules ?
This question was referred by the Deputy Registrar of this
Court to the Hon'ble Judge in Chambers. The learned Judge
referred t? the respective c_ont~mtions raised before him by the parties
and considered the practice m regard to the levy of court-fees in
allied matters. He to~k the view that the practice with regard to
levy ?f court-fee~ was m a s.tate of flux and it required full consideratwn. That rs why he duected that the matter be adjourned to
~ourt. It is as a res.ult of this direction made by the Hon'ble Judge'
in Chambers that this matter has come before us for disposal on the
question of court-fees.
..
.
Le~ us cite the relevai;it pr~visions of the Supreme Court Rules
m relatwn to court-fees m this matter. Enrty 2 in Part II of
Schedule III reads thus:-
"Lodging and registering Petition of Appeal:
Where the amount or value of the
subject-matter in dispute is Rs.
20,000 or below that sum
.. Rs. 250 ·00
For every Rs. 1,000 in excess of
Rs. 20,000
.
In cases where it is not possible to
estimate at a money value the
subject-matter in dispute
.. Rs. 5 · 00 for every
thousand rupees or
part thereof.
.. Rs. 250 . 00"
There is a proviso to this entry which reads thus:-
"Provided:
(!) that the maximum fee payable in any case shall not
exceed Rs. 2,000 and
660
SUPREME
COURT
REPORTS
[1966] 3 s.c.a.
(2) that where an appeal is brought by special leave
granted by this Court credit shall be given to
the appellant for the amount of court-fee paid by
him on the petition for special leave to appeal".
Mr. Sen for the appellant contends that it is not possible to
estimate at a money Yalue the subject-matter in dispute in the
present appeals; and so, court-fee of Rs. 250 would be adequate
and appropriate for each one of them. According to him, the
controversy between the parties has relation to the proper classification of the goods and this being the subject-matter of the
appeals, it is incapable of valuation. Mr. Sen presented his argument
in an alternative form.
He urged that even if the appeals are
allowed, this Court will merely determine the proper classification
of the goods and make a declaration that on the basis of the said
proper classification, the appellant should be entitled to the r~fund.
Even after such a declaration is made, the appellant would be
required to adopt some other procedure to make a claim for actual
recovery of the said refund. It is on these two grounds that
Mr. Sen rests his case that Rs. 250 would be the appropriate and
adequate court-fees for each one of these appeals.
In support of this contention, Mr. Sen has also referred to
the practice prevailing in this Court in respect of certain categories
of appeals where court-fee of Rs. 250 has been consistently accepted as adequate and appropriate. In Civil Appeal No. 212 of
1956 (The State of Madras v. Messrs. Tata Iron and Steel Co. Ltd.)
an appeal was filed by the State of Madras on a certificate granted by
the High Court from an order passed hy it under s. 12-B of the
Madras General Sales Tax Act, 1939 allowing the assessee's claim
for refund of the amount of sales tax computed on the tum-over of
a stated sum of money. Overruling the stand taken by the office
that court-fees should be paid on an ad valorem basis, Bhagwati, J.
who was then the Hon'ble Judge in Chambers directed that "it is
not possible to estimate the value of the claim in this case and the
record does not show it. Therefore, the court-fee should be paid
on that basis". Accordingly Rs. 250/- was accepted as proper
court-fee.
Similarly, in Civil Appeal No. 54 of 1958 (Indian Hume Pipes
v. Its Workmen)
though the appeal related to a definite and
ascertainable sum of money in respect of payment of bonus, dearness allowance, etc. Bhagwati, J. directed that "I am inclined to
think that Rs. 250/- fixed court-fee should be charged. The award
merely
determines the liability; recovery of the dues requires
other procedure to be adopted for the purpose;
vide section
33(c)".
In accordance with the directions thus given by the Hon'ble
Judge in Chambers in these two matters, the practice in this Court
B
c
D
E
F
G
H
•
r
\'
I •
•.-
•
T
•
•
•
---..._
' r-1 •
A..
B
c
D
E
F
G
B
ORIENT MILLS v. UNION (Gajendragadkar, C.J.)
661
consistently has been that in matters comingtotbis Courtin reference
proceedings under the relevant provisions of the Sales Tax Acts and
the Indian Income-tax Act, 1922 as well as against awards made
under the Industrial Disputes Act, 1947, Rs. 250 has been accepted
as proper court-fee.
In Civil Appeal No. 148of1954 (M/s. Bhatnagar & Co. Ltd.v.
Union of India), similar court-fee of Rs. 250/- was accepted where
the appellant challenged the order of the High Court passed under
Art. 226 refusing the appellant's prayer for a direction for amendment of the period of the validity of import licences. This plea was
accepted even though the appellant had estimated his loss at Rs.
6,00,000/- if the relief claimed in that behalf by him was not granted.
It is on these precedents and the practice which they show that Mr.
Sen has relied in support of his argument· that the category of
cases in which the present appeals fall should be similarly
treated and Rs. 250/- should be taken as adequate and proper
court-fee.
Reverting then to the first
contention raised by Mr. Sen,
can it be said that the present appeals fall in the class of cases where
it is not possible to estimate at a money value the subject-matter
in dispute. In our opinion, the answer to this question must
clearly be in the negative. We have already set out the nature
of the relief claimed by the appellant in its application before the
Assistant Collector of Central Excise, as well as in subsequent
appeals and revision application. The claim clearly and unambiguously is for a refund of Rs. 84,928 · 84 P. It is true that a claim
for this refund is sought to be justified on the basis that the assessment should be levied under item 17(3) and not under item 17( 4);
but the decision of the point as to which item applies to the paper
in question, serves to support the appellant's claim for a refund;
and so, the fact that the issue as to which item applies cannot be
said to determine the character of the present proceedings before
the Appellate Authority or that of the appeals before this Court.
, The proceedings, in terms, are to recover the stated amount of
refund and since the said claim has been rejected by the Excise
authorities, in the present appeals the same claim-is made by the
appellant before this Court. Therefore, we think it is impossible
to hold that these appeals are cases where it is not possible to estimate at a money value the subject-matter in dispute.
Besides, Mr. Sen is not right in contending that if the appeals
filed by the appellant before this Court succeed, it would be necessary for the appellant to take some further steps to recover the
amount of refund claimed by it. In case this Court holds that the
basis on which the assessment has been made in respect of the paper
manufactured by the appellant is erroneous in law, the necessary
consequer,ce of the said decision would be to issue a direction that
a refund of the appropriate amount should be allowed. These
•f62
SUl'llEMI! COUJ.T llBPOl.TS
[1966) 3 S.C.R.
a.ppc:aJs have been brought to this Court under Art. 136 of the CoruUtutton on the assumption that the orders under appeal ha~·e been
passed .~Y the r~popdent ~hich acted as a Tribunal in entertaining
the reVJS~on applications withm the meaning of the said Article;
and so, 11 would be open to this Court to direct, if the appeals
succeed, that the appropriate authorities should
grant the
appellant's claim for refund.
Then as to the precedents on which Mr. Sen relies, the position with regard to appeals brought to this Court in Sales-tax. or
·Income-tax. matters, such as the case in the State of Madras v.
Messrs. Tata lro11 and Steel Co. Ltd.(I), is entirely different.
In such proceedings, the High Court which entertains the reference
acts purely in an advisory capacity and when the appeal is brought
to this Court against the decision of the High Court on such reference, the capacity of this Court is exactly the same as that of the
High Court. The proceedings continue to be proceedings in which
either the High Court or this Court expresses an advisory opinion,
and so, it can well be said that the subject-matter in such cases
cannot be estimated at a money value. Whether or not similar
considerations will apply to the appeals brought to this Court by
special leave against awards made under the Industrial Disputes
Act or against orders passed by the High Court in writ jurisdiction,
it is unnecessary for us to decide in the present proceedings.
So far as the present appeals are concerned, we feel no difficulty
in holding that the claim made by the appellant is for a definite,
ascertained amount and it is the rejection of the said claim by the
respondent in exercise of its revisional jurisdiction when it rejected
the appellant's revision applications, that has given rise to the
present appeals. This is a claim which in terms has already been
~timated at a money value, and therefore, there is no basis for the
appellant's plea that court-fee of Rs. 250/- should be held to be
adequate and proper in each of these appeals. We accordingly
direct that the appellant should pay proper court-fees as prescribed
by Entry 2 in Part II of the Third Schedule of the Supreme Court
Rules, subject, of course, to the maximum prescribed by clause (i)
of the proviso thereto.
(t} C.A. No. 212of t956.
A
B
c
D
J'