Asia Tobacco Company Limited v. Union of India — 1991 DIGILAW 761 (MAD)

Judgment :- W.P. No. 997 of 1983 is filed for issue of Writ of Certiorari calling for the records comprised in the letter of the fourth respondent dated 23-8-1982 and to quash the same while W.P. No. 1153 of 1983 is for a Writ ofmanda musdirecting the respondents 2 and 4 to exempt the outer shells and inner slides from the whole of duty of excise under Notification No. 66/82 C.E., dated 28-2-1982 in so far as the petitioner company is concerned. W.P. No. 1154 of 1985 is also for the issue of Writ of Certiorari calling for the records comprised in the letter of the second respondent dated 7-4-1982 and to quash the same. 2.The case of the petitioner as disclosed in the affidavit and which are necessary for the disposal of these writ petitions is briefly as follows :- The petitioner-company was incorporated in the year 1973 and is a Joint Sector limited company with 50% shareholding by Tamil Nadu Industrial Development Corporation Limited, a wholly owned State Government undertaking and the remaining 50% of the shares are held by private persons. The said company is engaged in the manufacture of cigarettes at its factory in Hosur, Dharmapuri District and for this purpose, he has taken out necessary licence in form L 4 etc., under the Central Excises and Salt Act, 1944, hereinafter called the Act. The cigarettes are subjected to levy of excise duty under Item 4 II(2) of the Central Excise Tariff. The cigarettes at the time of excise levy are packed in what are commonly known as cigarette packets. It is further stated that a packet of cigarette consists of two components. One is called the outer shell (also called the cigarette packet shell) and the other component is called the slide which is inserted into the shell to make a cigarette packet. The petitioner manufactures, the outer shell and the inner slide at its own factory in Hosur for the purpose of marketing its own brand. With respect to ITC brands, the inner slides are made at the petitioner's factory to be used along with the outer shells supplied by the ITC. By virtue of the Finance Bill of 1982, a new sub-item 4 was added to Tariff Item 17 of the First Schedule to the Act. By that entry, boxes, cartons and other packing containers were brought under Tariff Item 17(4). By virtue of the Finance Bill of 1982, a new sub-item 4 was added to Tariff Item 17 of the First Schedule to the Act. By that entry, boxes, cartons and other packing containers were brought under Tariff Item 17(4). Item No. 17 is under the head "Paper and Paper Board and Articles thereof. The further case of the petitioner is a Notification No. 66/82 C.E., dated 28-2-1982 was issued by the Central Government exempting articles of Paper and Paper board, falling under sub-item 4 of Item 17 of the First Schedule to the Act from the whole of the excise duty leviable thereon provided that no such exemption would apply to printed boxes and cartons (including flattened or folded printed boxes and flattened or folded printed cartons) whether in assembled or unassembled condition. According to the petitioner, the purport of the notification is, apparently, to levy duty only on boxes and cartons and not on any other packing containers or bags. While such being the case, the fourth respondent after the introduction of the Finance Bill of 1982, issued the impugned letter dated 23-8-1982 informing the petitioner that outer shells are in the nature of printed boxes and accordingly are classifiable under Tariff Item 17(4) and that they would not be eligible for exemption under Notification No. 66/82. Further as the slides are manufactured and cleared by the petitioner along with the outer shells, duty would be chargeable on the value of both. Hence he required the petitioner to apply for an L 4 licence for manufacture of such shells in the petitioner's factory before commencement of manufacture of such goods. The second respondent also issued a directive to all Collectors of Central Excise to that effect and thereby created confusion in the matter instead of clearing doubts. According to the petitioner, the outer shell is not a container since it is open of both sides. Even assuming without admitting that the said components fall under Item 17(4) the outer shell with or without the inner slides are exempted from duty of excise by virtue of Notification No. 66/82, dated 28-2-1982. The said exemption notification grants exemption to articles made of paper and paper board falling under Item 17(4) from the whole of the duty of Excise except in the case of printed boxes and printed cartons. The said exemption notification grants exemption to articles made of paper and paper board falling under Item 17(4) from the whole of the duty of Excise except in the case of printed boxes and printed cartons. A cigarette packet can in no way be described or called a printed box or a printed carton within the meaning of the proviso to the said notification. According to the petitioner in accepted commercial and common parlance a container for packing cigarettes is known only as "packets' and are never described as" carton"or" box" * of cigarettes. The petitioner also submitted that the dictionary meaning of the words, "boxes", " cartons"and" containers" is fully consisteant with the stand taken by the petitioner. According to him, "boxes" and "cartons" are used to describe big containers and the public at large are also aware of the articles answering to such description. While the cigarette packet cannot be called a cigarette box or a cigarette carton and that a box or a carton cannot be equated with a packet. Hence the cigarette packet can only be a container or an article made of paper and wholly exempted from duty under the said Notification and will not fall within the exception relating to printed cartons or printed boxes. It is pointed out that prior to the introduction of Tariff Item 17(4) by the Finance Bill of 1982 the outer shells and the inner slides were classified under Tariff Item 68. These two items were exempted from the whole of duty by virtue of Notification No. 118/75 C.E., dated 13-4-1975 under which the goods intended for use in the factory were exempted. A cigarette packet cannot be subjected to duty twice over inasmuch as duty of excise is paid on cigarettes along with the packet which is being treated by Excise Authorities as essential packing constituting manufacture of cigarettes. Even otherwise, the outer shells and inner slides cannot be subjected to any separate assessment. Cigarettes are assessable to duty on value determined in accordance with Section 4. The cost of outer shells and slides are already included in the selling price of the cigarettes which are essential part of the same. Hence it is already covered by the excise duty on the price of cigarettes. Cigarettes are assessable to duty on value determined in accordance with Section 4. The cost of outer shells and slides are already included in the selling price of the cigarettes which are essential part of the same. Hence it is already covered by the excise duty on the price of cigarettes. It is the further case of the petitioner that the Central Board of Excise has no jurisdiction to add to or amend or alter the notification issued under the Act and Rules thereunder and has no jurisdiction to interfere with quasi judicial functions of Statutory Excise Authorities. Hence the directive and decision of the Board dated 7-4-1982 to all Collectors, Central Excise, is illegal and without jurisdiction. Consequently the directive issued by the second respondent to the petitioner is illegal, arbitrary and without jurisdiction. Hence these writ petitions. 3.In the common affidavit filed on behalf of the respondents by the Assistant Collector of Central Excise, Coimbatore, it is averred that the petitioner-company are the manufacturers of cigarettes falling under Tariff Item No. 411(2) of the Central Excise falling under the jurisdiction of Hosur Division. They are using the outer shells and slides manufactured at their own factory, for packing the cigarettes manufactured by them. In respect of ITC brands, the inner slides are made at the petitioner's factory, to be used along with the outer shells supplied by ITC. Prior to the Finance Bill of 1982, these shells and slides were classified under Tariff Item 68 and assessed under Tariff Item 68. After 28-2-1982, under the Central Excise Tariff as per Section 49 of Finance Act 1982, shells and slides were classified under Tariff Item 17(4). The Superintendent of Central Excise, Range I Hosur in his letter O.C. No. 603/82, dated 25-8-1982, requested the assessee to take out a licence and pay duty for shells and slides of cigarettes manufactured in their factory under Tariff Item 17(4). These writ petitions are preferred against the said letter referred of the Superintendent of Central Excise, Range I Hosur, and stay was obtained and the goods were allowed to be cleared without payment of duty on production of 25% of the amount of duty involved before clearance as per the order of this Court. These writ petitions are preferred against the said letter referred of the Superintendent of Central Excise, Range I Hosur, and stay was obtained and the goods were allowed to be cleared without payment of duty on production of 25% of the amount of duty involved before clearance as per the order of this Court. It is further stated that the cigarette packets, outer shells and inner slides are in the nature of printed boxes whether in assembled or unassembled condition and hence they are not entitled to claim exemption under the Notification No. 66/82, dated 28-2-1982. It is further submitted that the cigarette packet is known only as a packet and not as a box in the Trade parlance. When we consider the analogy of the Match industry, whether the unit containers of Match sticks are in commercial parlance called as "boxes" and the inner and outer slides of the said boxes as 'Inner box' and the 'outer box'. In the said juncture, the reference to the dictionary meaning of words "boxes", "cartons", " containers" cited by the petitioner are not relevant. It is also submitted that cigarette packet outer shell and inner shell are in the nature of printed boxes (slide type boxes) included flattened or folded printed boxes whether in the assembled or unassembled condition as described under Notification No. 66/82. The manufacture of cigarette is such that the packet comes into existence at the time of filling up of cigarettes only. It does not mean that the shells and slides combined together do not make a packet. Even if the shells and slides are manufactured separately and packet comes into existence only at the time of filling up of cigarettes and the assessment of shells and slides have to be made as a packet. Further, ISI Glossary of terms says that shells have to be treated as packets and hence the department has adopted the ISI norms for charging duty on shells. Once an item is specifically covered by tariff, the excise duty become chargeable in terms of Section 3 of the Central Excises and Salt Act, 1944. In the process duty may be charged twice. Hence the fact of duty paid on cigarettes do not take away the liability of the packets to be levied with excise duty. Once an item is specifically covered by tariff, the excise duty become chargeable in terms of Section 3 of the Central Excises and Salt Act, 1944. In the process duty may be charged twice. Hence the fact of duty paid on cigarettes do not take away the liability of the packets to be levied with excise duty. The shells and slides are subject to duty under Tariff Item 17(4) which is now classified as Tariff Item 17(3) and the cigarettes are charged to duty under Tariff Item 411(2). This cannot be considered as double taxation. It is submitted that the letter of the Superintendent of Central Excise, above referred, cannot be called as directive. The directive can be issued in the Central Excise Rules only after following the principles of natural justice and issue of the speaking orders by a proper authority. The said letter is only an information to the petitioners of the legal requirements in the case to be followed. According to the petitioner, the question of exercising quasi-judicial function arises only after the classification list is filed and only when the department and the assessee are not in agreement with regard to the valuation. After assessment on the filing of the classification lists, the assessing authority on hearing the petitioner has to pass a speaking order and the petitioner if aggrieved should have followed the statutory appeals provided under the Acts and Rules of Excise law. As such these writ petitions are not maintainable and liable to be dismissed on that score. The petitioner should have called for valuation finding from the proper officer after filing classification list and if he is aggrieved by the order passed by the authorities they should prefer the statutory remedies provided under the Act. The averment that there is no other alternative remedy except to approach this Court is only an attempt to create prejudice against the department. It is also submitted that it is not relevant whether the containers of the cigarette is called a box/container/packet for duty liability. Lastly it is stated that since the containers/packing cigarette is covered by the separate tariff heading and in view of the legislature had decided the duty should be collected on packet separately the proposal to levy duty on cigarette packets/containers is justifiable and the action of the Department is well within its jurisdiction. Lastly it is stated that since the containers/packing cigarette is covered by the separate tariff heading and in view of the legislature had decided the duty should be collected on packet separately the proposal to levy duty on cigarette packets/containers is justifiable and the action of the Department is well within its jurisdiction. Further, the cigarette packet outer shells and inner slides are in the nature of printed boxes (slide type boxes) including flattened or folded printed box whether in assembled or unassembled condition and hence they are not eligible to claim exemption under the Notification No. 66/82, dated 28-2-1982. Hence they pray for dismissal of all the writ petitions. 4.The points that arise for consideration in these writ petitions are :- 1) Whether the cigarette packets are covered under Item No. 17 of the First Schedule liable for duty and whether the same is exempted from duty in view of the Notification No. 66 of 1982, dated 28-2-1982 ? 2) Whether the present writ petitions are not maintainable for the reasons stated in the counter affidavit ? 3) Whether the petitioner is entitled to the relief prayed for in the writ petitions? 5. Point No. 1:As regards this point, it is not in dispute that as per Section 3 of the Central Excises and Salt Act, 1944, the duties of Excise shall be leviable on all excisable goods as set forth in the First Schedule. The power to grant exemption from payment of duty as a special case as set out in Rule 8 of the Central Excise Rules. Under the said Rule, Notification No. 66 of 1982, dated 28-2-1982 was issued wherein the Central Government exempts articles of paper or paper board, falling under sub-item (4) of Item No. 17 of the First Schedule to above Act, from the whole of the duty of excise leviable thereon, provided that no such exemption shall apply to printed boxes and printed cartons (including flattened or folded printed boxes and flattened or folded printed cartons) whether in assembled or unassembled condition. A clarification was issued by the second respondent, Central Board of Excise and Customs, of the exemption Notification No. 66 of 1982 on 7-4-1982 in F. No. B. 11/1/82 regarding the classification of the printed cigarette packet shells wherein it has been stated as follows :- "The matter has been examined and the Board is of the view that these printed shells are in the nature of printed boxes (slide type of boxes) and are accordingly classifiable under Item 17(4); they would not be eligible for the exemption granted under Notification No. 66/82-C.E. The Board is also of the view that if the inner slides are manufactured and cleared along with the outer slides, duty would be chargeable on the value of the outer shell and the inner slide. However if the shells are cleared from a factory on payment of duty under Tariff Item 17(4) and if the inner slides are inserted into these shells, along with cigarettes in the cigarette factory, no further duty liability would be attracted under Tariff Item 17(4).'It is clear from the above notification that the intention was to exempt all containers and boxes except printed cartons and printed boxes. The question to be considered is whether the cigarette packet can be described as a printed box or a printed carton within the meaning as proviso to the said notification. According to the learned Counsel for the petitioner that it is a settled law that for the purpose of classification of goods for levy of excise, that the description of the article is to be determined in accordance with the understanding prevalent in the trade and only such description of the article is relevant as is given in detail with the particular trade. He would submit that in accepted common parlance a container for packing cigarettes is known only as "packets" and are never described as" * carton"or" box. "of cigarettes. In this connection, the learned Counsel also drew the attention of this Court to the counter-affidavit filed by the respondents in paragraph 6.0 wherein it has been categorically stated as follows :-" With regard to the 12th paragraph of the affidavit, I submit that the cigarette packet is known only as a packet and not as a box in the Trade parlance. "The learned Counsel also drew the attention of this Court to the meaning of the words given in the Oxford Advance Dictionary of Current English 1974 edition such as boxes, cartons, containers and packets. Boxes - containers usually with a lid made of wood, card board, plastic, metal etc., used for holding solids. Cartons - Card board box for holding goods; 200 cigarettes, with 10 packets of 20. Containers - One designed for such containers, containers traffic, containers depot e.g., where containers are loaded and unloaded. Packets - Small parcel or bundle, a packet of letters, a postal packet, a packet of 20 cigarettes. The learned Counsel for the petitioner rightly submitted that the words" carton"or" box. "cannot be in any way used to describe as a packet of cigarettes. As admitted in the counter-affidavit, it is seen that the cigarette is only known as "packet" in the trade parlance and not as a "box". According to the learned Counsel, the cigarette packet can only be a container or an article made of paper and wholly exempted from duty under the said notification and in any event it would not fall within the exception relating to printed cartons or printed boxes. 6.It is the case of the respondents that the cigarette packet outer shell and inner slides are in the nature of printed boxes (slide type boxes) including flattened or folded printed box whether in assembled or unassembled condition and hence they are not eligible to claim exemption under the Notification No. 66/82. Even if the shells and slides are manufactured separately and packet comes into existence only at the time of filling up of cigarettes and the assessment of shells and slides have to be made as a packet yet is covered by tariff and the excise duty become chargeable. Even though in the process duty may be chargeable twice, yet it is not open to the petitioner to challenge the same. Per contra, the learned Counsel for the petitioner submitted that when once it is found that the cigarette packet is a container made of paper and wholly exempted from duty and is not a printed box or carton certainly they are entitled to exemption in view of the notification already referred to above. 7.The learned counsel for the petitioner relied on the decision reported inCollector of Customsv. K. Mohan & Co. 7.The learned counsel for the petitioner relied on the decision reported inCollector of Customsv. K. Mohan & Co. Exports 1989 AIR(SC) 2250, 1989 (25) ECR 1, 1989 (2) Scale 712 , 1989 (S2) SCC 337, 1989 (S1) SCR 231, 1990 (1) UJ 110 , 1989 (43) ELT 811 , 1989 (24) ECC 416 (S.C.)] wherein it has been observed in paragraph 4 as follows :-" * There is no dispute before us that the goods in question are articles made of plastics. This being so, the assessee is entitledc to the exemption conferred by the notification unless the goods answer the description of one or other of the specific items set out in the table. The onus of showing this is clearly on the Revenue. "Learned Counsel submitted that it is for the Revenue to show that the disputed items does not come under exemption and duty is leviable. But on the other hand, there is absolutely nothing on the side of the Revenue to show that the particular item does not come under the exemption but even in the exemption notification it comes under the proviso which includes certain articles claiming exemption. In this connection, the attention of this Court was also drawn to certain decisions by the learned Counsel appearing for the petitioner. In the decision reported inIndian Aluminium Cables Ltd., v. Union of India and Others 1985 AIR(SC) 1201, 1985 ECR 1465, 1985 (21) ELT 3 , 1987 (64) STC 180, 1985 (1) Scale 976 , 1985 (3) SCC 284 , 1985 (S1) SCR 731, 1985 UJ 1070 , 1985 TaxLR 2551, 1985 SCC(Tax) 383 (SC)] in paragraph 12, their Lordships have observed as follows :-" * The affidavits to which we have referred assert, particularly those of the two dealers, that in commercial parlance Prospers Rods are not called wire rods and the two are treated as distinct species of goods. Shri Venugopal places strong reliance upon these affidavits and argues that whether a particular item falls under a particular entry must be determined with reference to its description in commercial parlance. Shri Venugopal places strong reliance upon these affidavits and argues that whether a particular item falls under a particular entry must be determined with reference to its description in commercial parlance. This Court has consistantly taken the view that, in determining the meaning or connotation of words and expressions describing an article in a Tariff Schedule, One principle which is fairly well-settled is that those words and expressions should be construed in the sense in which they are understood in the trade, by the dealer and the consumer. The reason is that it is they who are concerned with it and, it is the sense in which they understand it which constitutes the definitive index of the legislative intention. (SeeCommissioner of Sales Tax, Madhya Pradeshv.Jaswant Singh Charan Singh- 1967 AIR(SC) 1454, 1967 (2) SCR 720 , 1967 (19) STC 469, 723;Minerals & Metals Trading Corporation of India Ltd.v.Union of India- 1972 AIR(SC) 2551, 1989 (25) ECR 278, 1983 (13) ELT 1542 , 1972 (2) SCC 620 , 1973 (1) SCR 997 , 1973 TaxLR 201002; Dunlop India Ltd.v. Union of India- 1977 AIR(SC) 597, 1983 (13) ELT 1566, 1976 (2) SCC 241 , 1976 (2) SCR 98 (SC) = 1977 AIR(SC) 597, 1983 (13) ELT 1566, 1976 (2) SCC 241 , 1976 (2) SCR 98 , 113;State of U.P.v.Kores (India) Ltd.-1977 AIR(SC) 132, 1977 (1) SCR 837 , 1976 (4) SCC 477 , 1990 (26) ECR 464, 1977 (39) STC 8, 1976 UJ 876 , 1977 TaxLR 1601, 1977 (6) CTR 7, 1977 UPTC 46, 1977 SCC(Tax) 40839 undDelhi Cloth and General Mills Co. Ltd.v. State of Rajasthan- 1980 AIR(SC) 1552, 1981 ECR 51, 1980 (6) ELT 383 , 1980 (46) STC 256, 1980 (4) SCC 71 , 1980 (3) SCR 1109 , 1980 TaxLR 1756, 1980 SCC(Tax) 348 (SC) - 1980 AIR(SC) 1552, 1981 ECR 51, 1980 (6) ELT 383 , 1980 (46) STC 256, 1980 (4) SCC 71 , 1980 (3) SCR 1109 , 1980 TaxLR 1756, 1980 SCC(Tax) 348, 1115. "8.InAtul Glass Industries Ltd.v. Collector of Central Excise 1986 AIR(SC) 1730, 1986 CrLR(SC) 363, 1986 (8) ECR 513, 1986 (25) ELT 473 , 1986 JT 41 , 1986 (63) STC 322, 1986 (2) Scale 15 , 1986 (3) SCC 480 , 1986 (3) SCR 126 , 1986 CRLR 363, 1986 TaxLR 2084, 1986 (10) ECC 1, 1986 SCC(Tax) 620, 1986 (8) ETR 513 (SC)], it has been observed in paragraph 8 as follows :-" * The test commonly applied to such cases is : How is the product identified by the class or section of people dealing with or using the product ? That is a test which is attracted whenever the statute does not contain any definition.Porritts and Spencer (Asia) Ltd.v.State of Haryana 1979 AIR(SC) 300, 1979 (1) SCR 545 , 1979 (1) SCC 82 , 1989 (25) ECR 443, 1983 (13) ELT 1607 , 1978 (42) STC 433, 1978 UJ 697 , 1979 TaxLR 1692, 1979 UPTC 866, 1979 SCC(Tax) 38, 1980 Supp(SCC) 174 = 1979 AIR(SC) 300, 1979 (1) SCR 545 , 1979 (1) SCC 82 , 1989 (25) ECR 443, 1983 (13) ELT 1607 , 1978 (42) STC 433, 1978 UJ 697 , 1979 TaxLR 1692, 1979 UPTC 866, 1979 SCC(Tax) 38, 1980 Supp(SCC) 174 (SC). It is generally by its functional character that a product is so identified. InCommissioner of Sales Tax, U.P.v. Macneill & Barry Ltd., Kanpur 1985 2 SCALE 1093 = 1986 AIR(SC) 386, 1986 (1) CCC 254, 1986 (7) ECR 266, 1986 (23) ELT 5 , 1986 (61) STC 76, 1985 (2) Scale 1093 , 1986 (1) SCC 23 , 1985 (S3) SCR 739, 1986 (1) UJ 142 , 1985 (2) SCALE 1093 , 1986 TaxLR 2249, 1986 ALJ 252 SC), this Court expressed the view that amonia paper and ferro paper, used for obtaining prints and sketches of site plans could not be described as paper as that word was used in common parlance. On the same basis the Orissa High Court held inState of Orissav.Gestetner Duplicators (P) Ltd. 1974 (33) STC 333, 1977 AIR(SC) 32, 1974 TaxLR 2051 that stencil paper could not be classified as paper for the purposes of the Orissa Sales Tax Act. It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer buys an article, he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer between the article and the need it supplies in his life. It is the functional character of the article which identifies it in his mind. "9.InDunlop India Ltd.v. Union of India 1977 AIR(SC) 597, 1983 (13) ELT 1566, 1976 (2) SCC 241 , 1976 (2) SCR 98 (SC) 1977 AIR(SC) 597, 1983 (13) ELT 1566, 1976 (2) SCC 241 , 1976 (2) SCR 98 ] it has been observed in paragraph 31 and 36 as follows :-" * 31. It is well established that in interpreting the meaning of words in a taxing statute, the acceptation of a particular word by the Trade and its popular meaning should commend itself to the authority. 36. We are, however, unable to accept the submission. It is clear that meanings given to articles in a fiscal statute must be as people in trade and commerce, conversant with the subject, generally treat and understand them in the usual course. But once an article is classified and put under a distinct entry, the basis of the classification is not open to question. Technical and scientific tests offer guidance only within limits. Once the articles are in circulation and come to be described and known in common parlance, we then see no difficulty for statutory classification under a particular entry.' 10.InAjay Electrical Industries Ltd.v. Collector of C.E. 1988 (37) ELT 426 (Tribunal)] the head note runs as follows :- "Paper and paper board - Container made from paper board which holds, restrains or encloses any article or commodity to be stored or transported. The plea that paper corrugated drum is a carton after the bulb is put into it and the ends of the drum are folded is not correct because it was only a paper drum with ends open. The disputed goods are not cartons classifiable under Item 17(3) of the Central Excise Tariff (Tribunal). The question as to what constitutes a 'container' was considered by the Bombay High Court in 1977 (Vol. The disputed goods are not cartons classifiable under Item 17(3) of the Central Excise Tariff (Tribunal). The question as to what constitutes a 'container' was considered by the Bombay High Court in 1977 (Vol. 1977 (6) CTR 281, 1977 (39) STC 409 The principle emerging from this judgment is that for an article to be called a container it must have already come into existence and must answer to the description of a container. It cannot be called a container if it assumes the shape of a container after some other goods are put into it. According to the Indian Standard Glossary of Terms relating to paper and pulp-based packaging materials (IS : 7196-1973), 'Carton' means a container for merchandising consumer quantities of products and is made from Paper Board usually of thickness between 0.30 mm and 1.10 mm. These definitions would also point to the conclusion that a container must already be something which can hold or contain other goods or articles. A container cannot be said to come into existence after the contents are put in. It was not a carton before the bulb was put in because it was admittedly only a paper drum with both ends open. If that is so, it cannot be called a carton in that condition. It is not correct to hold as the Collector has held, that before insertion of the bulb into it, the paper drum is a flattened condition which is not the condition of the paper drum. In this view the disputed goods are not carrtons falling within the mischief of item 17(3) of Central Excise Tariff." * 11.InCollector of Central Excisev. Punjab Anand Lamps Industries 1989 (S2) SCC 490, 1990 (28) ECR 1, 1989 (S) JT 251, 1991 (81) STC 454, 1989 (2) Scale 657 , 1989 (S1) SCR 123, 1990 (1) UJ 95 , 1989 (43) ELT 816 , 1989 (24) ECC 402(SC)j, the question before the Supreme Court was whether the bulb sleeves and tube light sleeves manufactured by the respondent for the purpose of packing the electric bulbs and electric tube lights are 'printed boxes and cartons' and are subject to excise duty or whether the respondent is entitled to exemption under Notification No. 66/82, dated 28-2-1982 as amended by Notification No. 151/83, dated 13-5-1983. That was an appeal filed by the Revenue. That was an appeal filed by the Revenue. The respondent-assessee was manufacturing printed bulb carton and printed tube carton falling under erstwhile Tariff Item No. 17(3) of the Central Excise Tariff. It is alleged by the revenue that the sleeve rolls had a width of 17.5 cms. consisting of corrugated kraft paper on one side and plain paper on the other side having printed thereon the name, monograms and so on pertaining to the lamps from the corrugated paper manufacturer. The rolls are mounted on a packing machine and are cut to adequate length to circumscribe the lamps and the joint is automatically covered by gum tapes. The sleeves are conveyed automatically to a conveyor on which the lamps are inserted manually. Further the ends of the above sleeve are folded to prevent lamps from falling out. The tube lamp is manually put in and the sleeve eldges folded over manually and gum tape is also applied manually. It is the case of the revenue that the respondent manufactured printed cartons for bulbs by way of printing on papers (printed and writing) and pasting the printed paper on the corrugated board and thus converting the said corrugated board to printing cartons. Hence the Notification No. 66/82 is not applicable as the notification exempted articles of paper and paper board. Tribunal was of the view that the boxes and cartons have a definite understanding. While referring, reference was made to Shorter Oxford English Dictionary Vol. I where 'box' has been defined as "a case of receptacle usually having a lid". In that view of the matter, according to the Tribunal, the product drums or sleeves manufactured by the respondent could not be called 'box' or 'carton'. Therefore, the Tribunal held that these will be exempt from excise duty under the aforesaid Notification even assuming that the product is a container. This was uphold by Their Lordships of the Supreme Court. While doing so, Their Lordships observed as follows :- "In our opinion, the Tribunal approached the question from the literal meaning as well as the functional use of the expressions employed. This was uphold by Their Lordships of the Supreme Court. While doing so, Their Lordships observed as follows :- "In our opinion, the Tribunal approached the question from the literal meaning as well as the functional use of the expressions employed. As these sleeves and tube sleeves manufactured by the respondent had no independent market as such, and as these were utilised for captive consumption for the end-product manufactured by the respondent, in our opinion, in the absence of any positive and reliable evidence that there was either a market for these goods manufactured by the respondent and in that market these bulb sleeves and tube sleeves are known and marketable as corrugated boxes and cartons, a fact of which in the record, there is no positive evidence either way, in our opinion, the Tribunal proceeded on a correct basis." * According to the learned Counsel, the said decision is in all fours applicable to the facts of this case. In view of the ratio laid down in the above decision and in view of the fact that there is absolutely nothing to show that the shells and slides that would come to the carton and that packet or packing container is only a packet of cigarette therein and it cannot be said that the said items are also liable for duty and are not entitled to exemption as per the Notification. It is not in dispute that prior to the introduction of Tariff Item 17(4) by the Finance Bill of 1982, the outer shells and inner slides were classified under Tariff Item 68 and they were exempted from the whole of the duty. Even while considering the process of packing of cigarettes, it is seen that the packet is completed only after cigarettes have been put in it. Cigarettes are put first in the bundling paper and then placed in the slide. The slide along with the cigarettes is then inserted into the outer shell. The packet of cigarettes is thus completed at a stage when cigarettes are already in it. It is not in dispute that at this stage of assembly, it is not only the packet which is assembled but a packet of cigarettes containing cigarettes therein. Thus if this assembly is to be treated as manufacture, the manufacture is not of a packet but of a cigarette packet containing cigarettes. It is not in dispute that at this stage of assembly, it is not only the packet which is assembled but a packet of cigarettes containing cigarettes therein. Thus if this assembly is to be treated as manufacture, the manufacture is not of a packet but of a cigarette packet containing cigarettes. Thus a cigarette packet cannot be subjected to duty twice over. Even otherwise it is submitted that the outer shells and inner slides cannot be subjected to any separate assessment. Whatever it may be, there is absolutely nothing to show that the outer shells are to be called thus as packets and liable to excise duty. Hence there is no difficulty in finding point No. 1 in favour of the petitioner and against the revenue. 12. Point No. 2 :As regards the second question, it is the contention of the respondents that the impugned letter dated 23-8-1982 of the Superintendent, Central Excise, Hosur, the fourth respondent, is only an information to the petitioner of the legal requirements to be followed and it cannot be called as directive and that the respondents 2 and 3 are the proper authorities to take decision since there is no directive from the second respondent, the relief asked for in these petitions is not maintainable as only after the ascertainment of the filing of the classification lists, the assessing authority on hearing the petitioner have to pass a speaking order and the petitioner, if aggrieved, should have followed the Statutory appeals provided under the Acts and Rules of Excise law.Per contra, the learned Counsel for the petitioner drew the attention of the communication from the fourth respondent wherein it is stated " since you propose to manufacture shells for your brand of cigarettes in the same factory, I am to confirm you that your contention that such shells are exempt from duty under T.I. 17(4) is incorrect. These printed shells are in the nature of printed boxes (slide type of boxes) and are accordingly classifiable under T.I. 17(4) and they would not be eligible for the exemption under Notification 66/82. Please also note that inasmuch as the inner slides are manufactured and cleared by you along with the outer shells, duty would be chargeable on the value of the outer shell and the inner slide. Please also note that inasmuch as the inner slides are manufactured and cleared by you along with the outer shells, duty would be chargeable on the value of the outer shell and the inner slide. You are advised therefore to apply for an L. 4 licence for manufacture of such shells in your factory before commencement of manufacture of such goods.' This was issued in pursuance of the clarification done by the Board to the exemption notification No. 66/82 and it is not in dispute that the Board is the highest authority and the other authorities are bound to follow the direction issued by the Board and they are only executing the Board's direction. As seen from the communication received from the Board which is a clarifying exemption Notification dated 17-4-1982 in F. No. B. 11/1/82-TRU wherein it has been definitely stated that the matter has been examined and the Board is of the view that these printed shells are in the nature of printed boxes (slide type of boxes) and are accordingly classifiable under Item 17(4); they would not be eligible for the exemption granted under Notification No. 66/82-C.E. The Board is also of the view that if the inner slides are manufactured and cleared along with the outer shells, duty would be chargeable on the value of the outer shell and the inner slide. On the face of the clear directive issued by the Board and on the face of the communication by the fourth respondent the impugned letter is nothing but a directive, the petitioner has no other remedy except to approach this Court for getting clarification with regard to the exemption for the goods in question and to quash the direction to obtain licence for the same. There is every force in the contention of the learned Counsel in this connection in view of the stand of the respondent taken in their counter filed in this case and also in the various communications with regard to the interpretation of the exemption clause in respect of the disputed items viz., the outer shells and inner slides of the cigarette packets as to whether they are liable to duty or whether they are entitled to exemption. It is not open to them to contend that the said point could have been canvassed before the Authority and then approach this Court by way of writ petitions. It is not open to them to contend that the said point could have been canvassed before the Authority and then approach this Court by way of writ petitions. Hence in that view it has to be held that the writ petitions are all maintainable. 13. Point No. 3 :In view of the finding on point Nos. 1 and 2, these writ petitions are to be allowed as prayed for. In the result, these three writ petitions are allowed. However, there will be no order as to costs.