judgement:
ivil Appeal No. 3091 of 1985.
From the Judgment and Order dated 30.11.84 of the Alla habad High Court in S.A. No. 1137 of 1984.
Kapil Sibal, (N.P.), Mr. Rajiv Dhawan, R.K. Gupta, H. Sharma and Ms. Indu Sharma for the Appellant.
Satish Chandra, M.C. Goel, K.P. Singh and N.N. Sharma for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The main question before us is whether a Regional Rural Bank established by a notification under section 3 of the is "State" for the purposes of of the Constitution of India.
This appeal by special leave arises out of a suit by the respond ent No. 1, an employee of the appellant Bank, challenging the validity of a disciplinary proceeding against him and order of his dismissal from service passed therein.
The trial court decreed the suit and the decree was confirmed by the Additional District Judge in appeal and by the High Court in second appeal.
The facts briefly stated, omitting the details which are not relevant for the purpose of this judgment, are in a short compass.
The respondent No. 1 was, in 1981, served with a lengthy charge sheet containing many accusations, some of them being serious, and he was called upon to file his show cause.
A large number of documents were mentioned in the charge sheet and the respondent demanded copies thereof for the purpose of filing his reply.
According to the appellant several opportunities were given to the re spondent to inspect the documents (excepting a few in re spect of which privilege was claimed), but the respondent did not avail of them with the object of protracting and 938 frustrating the inquiry.
According to the High Court, the opportunity given by the appellant was not adequate.
Due to certain circumstances the inquiry could not make any progress for sometime.
A new inquiry officer entrusted with the proceeding took up the matter on 5.7.
1983, when the respondent No. 1 contended that he must be given an adequate opportunity of examining the relevant documents for facili tating him to file his written statement.
There is serious controversy between the parties as to the interpretation of the conduct of the delinquent servant and the approach adopted by the inquiry officer on the 5th of July and the subsequent dates, but we do not consider it necessary to deal with this aspect in detail as we agree with the view of the High Court that as the respondent was not given adequate opportunity to examine the documents, he was handicapped in filing his show cause and defending himself effectively.
The suit was filed by the respondent immediately after the order dated 5th July, 1983 was passed.
The disci plinary proceeding, however, proceeded ex parte and ulti mately the respondent was dismissed from service.
By an amendment of the plaint, the respondent was allowed to challenge the dismissal order also.
The respondent has asserted that it was the vindic tive attitude of the Bank authorities which led to the initiation of the disciplinary proceeding against him and the order of his suspension, and the inquiry have been vitiated by serious violation of principles of natural justice.
Besides denying these allegations, the appellant Bank contended that having regard to the nature of relation ship of master and servant between the parties, the decree for re instatement of the respondent was illegal and the suit as framed was not maintainable.
Even assuming that the respondent proves his case on merits, his remedy would be a suit for damages.
Alternatively, if the respondent is held to be a public servant so as to enable him to ask for re instatement in the service, the suit must be dismissed as not maintainable in view of the provisions of the U.P. Public Services (Tribunal) Act, 1976.
There has also been a stout denial of the allegations relating to violation of principles of natural justice.
Both the learned advocates representing the parties invited us to go deeply into the facts, but we have declined to do so, as all the three courts below have considered the matter in great detail and we agree with the High Court that the inquiry officer should have given adequate opportunity to the respondent to examine the relevant documents for the purpose of preparing his reply.
Not having done so, the 939 further orders in the proceeding must be held to be vitiat ed.
We, however, do not agree with the contention of Mr. Satish Chandra, the learned counsel for the respondent, that the entire proceeding from its very inception is fit to be quashed as illegal.
Now remains the issue relating to the maintainability of the suit.
So far the provisions of the U.P. Public Serv ices (Tribunal) Act, 1976 are concerned, they are wholly in applicable.
Section 6 of the Act bars the jurisdiction of the civil court to entertain a suit against the State of Uttar Pradesh and certain other authorities by a person who is or has been a "public servant" as defined in section 2(b) of the Act in the following words: "2. Definitions.
In this Act (a) . . . (b) "public servant" means every person in the service or pay of (i) the State Government; or (ii) a local authority not being a Cantonment Board; or (iii) any other corporation owned or controlled by the State Government (including any company as defined in Section 3 of the in which not less than fifty per cent of paid up share capital is held by the State Government) but does not include (1) a person in the pay or service of any other company; or (2) (a) a member of the All India Services or other Central Services;" The appellant Prathama Bank is not covered by the above definition.
It was constituted in exercise of power con ferred by section 3 of the .
It has been sponsored by the Syndicate Bank, a nationalised bank.
Although fifteen per cent of the total capital of the Bank has been contributed by the State of Uttar Pradesh, it has no controlling power, and none of the conditions mentioned in section 2(b) of the U.P. Act is satisfied.
The plaintiff respondent is, therefore, not a "public servant" within the limited meaning of the expression 940 used in the U.P. Act and the courts below are right in overruling the defence plea of the bar by the U.P. Act.
The main point pressed on behalf of the appellant is that the Bank cannot be deemed to be 'State ' for the pur poses of Part III of the Constitution, and so the decree for re instatement of the respondent is illegal.
The learned counsel cited several decisions in support of his argument, but we do not consider it necessary to refer to all of them in view of the authoritative pronouncements of this Court on this aspect.
In Ajay Hasia and others vs Khalid Mujib Shera vardi and others; , , it was held by a Consti tution Bench that the test for determining if an authority falls within the definition of State in Article 12 of the Constitution is whether it is an instrumentality or agency of the Government.
The enquiry has to be not as to how the juristic person is born but why it has been brought into existence.
It is, therefore, immaterial whether the authori ty is created by a statute or under a statute.
The Court after examining the Memorandum of Association and the Rules in that case held the Society which was registered under the Jammu & Kashmir Registration of Societies Act to be an 'authority ' within the meaning of Article 12.
It was pointed out that the composition of the Society was dominated by the representatives appointed by the Central Government and the Governments of several States with the approval of the Central Government; the cost of meeting the expenses came from the Central Government and the Government of Jammu & Kashmir; the rules to be made by the Society were required to have the prior approval of the two Governments; the accounts had to be submitted to the two Governments for their scrutiny; the Society was to comply with the direc tions of the State Government with the approval of the Central Government; and the control of the State and the Central Government was thus deep and pervasive.
Reference was also made to the provisions in regard to the appointment and removal of the members of the Society and to the consti tution and powers of the Board of Governors.
An examination of the relevant circumstances in regard to the appellant Bank in the light of this decision leads to the irresistible conclusion that it is an instrumentality of the Central Government.
As has been stated earlier, the Bank was estab lished under the provisions of the Regional Rural Banks act, 1976.
The preamble of the Act which is mentioned below clearly indicates that the Regional Rural Banks are estab lished to discharge the duties which are basically the responsibility of a welfare State. "An Act to provide for the incorporation, regulation and 941 winding up of Regional Rural Banks with a view to developing the rural economy by providing, for the purpose of development of agriculture, trade, commerce, industry and other productive activities in the rural areas, credit and other facilities, particularly to the small and marginal farmers, agricultural labourers, artisans and small enterpreneurs, and for matters connected therewith and incidental thereto.
" Section 3 says that if requested by a Sponsor Bank, the Central Government may establish a Regional Rural Bank in the manner provided therein.
The Sponsor Bank in the present case was a nationalised bank, which has been held to be under the control of the Central Government and, therefore, covered by the definition in Article 12 of the Constitution.
The share capital of a Rural Bank is to be subscribed by the Sponsor Bank which has the further duty of training the personnel of the Rural Bank and providing managerial and financial assistance during the initial stage.
The duration of such period can be extended by the Central Government.
The Central Government is also vested with power to increase or reduce the authorised capital in consultation with the Reserve Bank and the Sponsor Bank.
The burden to subscribe to the capital issued by the Rural Bank is divided amongst the Central Government, Sponsor Bank and the State Govern ment, their respective shares being fifty per cent, thirty five per cent and fifteen percent.
The general superintend ence, direction and management of the affairs of the Rural Bank vest in a Board of Directors which is constituted of two Directions to be nominated by the Central Government, one Director to be nominated by the Reserve Bank from amongst one of its Officers, one Director to be nominated by the National Bank from amongst one of its Officers, two Directors to be nominated by the Sponsor Bank from amongst its Officers and the remaining two Directors to be nominated by the State Government from its Officers.
In view of the relationship with and control of the Central Government on the Reserve Bank, National Bank and the Sponsor Bank, the Central Government gets an effective control over the Rural Bank.
The head office of the Rural Bank is to be located according to the directions of the Central Government.
The remunerations of the Officers and other employees of the Rural Bank are to be fixed by the Central Government as indicated in section 17.
Without attempting to exhaustively deal with the functions of a Rural Bank, section 18(2) mentions the following types of business within its duty: "18.(1). . (2). . 942 (a) the granting of loans and ad vances, particularly to small and marginal farmers and agricultural labourers, whether individually or in groups, and to co operative societies, including agricultural marketing societies, agricultural processing societies, co operative farming societies, primary agri cultural credit societies or farmers ' service societies, for agricultural purposes or agri cultural operations or for other purposes connected therewith; (b) the granting of loans and ad vances, particularly to artisans, small enter preneurs and persons of small means engaged in trade, commerce or industry or other produc tive activities, within the notified area in relation to the Regional Rural Bank.
" It is manifest that by establishing the Rural Banks the Central Government acts in discharge of its obligations under Articles 38 and 48 of Part IV of the Constitution through them.
To ensure that the object of establishing Rural Banks is fully achieved, sub section (2) of section 20 of the Act has brought both the houses of the Parliament also in the picture in the following words: "(2) The Central Government shall cause every auditor 's report and report on the working and activities of each Regional Rural Bank to be laid, as soon as may be after they are re ceived, before each House of Parliament." By section 24 A the Sponsor Bank is required to periodically monitor the progress of the Rural Banks and to take connect ed steps, and to cause inspection, internal audit et cetra made.
The rule making power dealt with in section 29 is vested in the Central Government and the power of the Central Govern ment to give directions is mentioned in section 24, quoted below: "24(1) A Regional Rural Bank shall, in the discharge of its functions, be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Reserve Bank, give.
(2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, the decision of the Central Government thereon shall be final.
" 943 The provisions of the Act do not leave any room for doubt that the Regional Rural Banks are under deep and pervasive control of the Central Government and have been established as its instrumentality and, are, therefore, 'State ' within Article 12 of the Constitution.
The learned counsel contended that even if the appel lant Bank is considered to be State, the courts cannot force the services of the respondent on it by passing a decree for his re instatement in service.
All that can be done is to grant a relief of way of compensation in a properly consti tuted suit.
We do not find any merit in the argument.
The learned counsel relied on the following observations in paragraph 103 of the judgment in Central Inland Water Trans port Corporation Ltd. and another vs Brojo Nath Ganguly and another reported in, [1986] 3 SCC at page 156: "The contesting respondents could, therefore, have filed a civil suit for a declaration that the termination of their service was contrary to law on the ground that the said Rule 9(i) was void.
In such a suit, however, they would have got a declaration and possibly damages for wrongful termination of service but the civil court could not have ordered reinstatement as it would have amount ed to granting specific performance of a contract of personal service.
As the Corpora tion is "the State", they, therefore, adopted the far more efficacious remedy of filing a writ petition under Article 226 of the Consti tution".
Far from helping the appellant, the observations clarify the correct position which is just contrary to the argument of the learned counsel.
In the result, the departmental proceeding against the respondent from 5.7.1983 onwards is quashed and the decree for the plaintiffs reinstatement in service with consequential benefits is confirmed.
If the Bank authorities be of the view that in spite of the delay of several years the inquiry ought to be completed, it will be open to them to proceed with it and to take further steps in the proceed ing from the stage where it stood on 5.7.
1983, but they should indicate their intention to do so to the respondent and also serve copies of the relevant document on him.
If they are of the view that any particular document is confi dential in nature and a copy thereof cannot be handed over to the respondent they may so indicate in writing to the respondent and it will be open to the inquiry officer to examine whether the denial of such a copy would amount to violation of principles of 944 natural justice.
The Bank shall also permit the respondent to join his post and receive his other benefits before he is called upon to file a show cause.
Subject to the modifica tions as indicated the decree under appeal is affirmed.
The parties are directed to bear their own costs of this Court.

summary/full:
The respondent who was an employee of the appellant bank was dismissed from service on the basis of disciplinary proceedings instituted against him.
He filed a suit chal lenging the validity of the disciplinary proceedings on the ground that the inquiry was vitiated by serious violation of principles of natural justice.
The trial court decreed the suit.
The decree was confirmed by the Additional District Judge in appeal, and by the High Court in second appeal.
Before this Court, the appellant contended that (i) having regard to the nature of relationship of master and servant between the parties, the decree of re instatement of the respondent was illegal, and the suit as framed was not maintainable because the respondent 's remedy was a suit for damages; (ii) alternatively, if the respondent was held to be a public servant so as to enable him to ask for re in statement in the service, the suit must be dismissed as not maintainable in view of the provisions of the U.P. Public Services (Tribunal) Act, 1976; and (iii) there was no viola tion of the principles of natural justice.
While confirming the decree with modifications, this Court, HELD: (1) The High Court was right in holding that as the respondent was not given adequate opportunity to examine the documents, he was handicapped in filing his show cause and defending himself effectively.
[938C] 936 (2) The appellant bank is not covered by the definition of 'public servant ' in section 2(b) of U.P. Public Services (Tribunal) Act, 1976.
It has been constituted in exercise of the power conferred by section 3 of the , and has been sponsored by the Syndicate Bank, a natio nalised Bank.
Although fifteen per cent of the total capital of the Bank has been contributed by the State of Uttar Pradesh, it has no controlling power, and none of the condi tions mentioned in section 2(b) of the U.P. Act is satisfied.
[939G] (3) The plaintiff respondent is not a "public servant" within the limited meaning of the expression used in the U.P. Act and the courts below are right in overruling the defence plea of the bar by the U.P. Act on the jurisdiction of the civil court to entertain the suit.
[939H 940A] The test for determining if an authority fails within the definition of State in Article 12 of the Constitution is whether it is an instrumentality or agency of the Govern ment.
The enquiry has to be not as to how the juristic person is born but why it has been brought into existence.
It is therefore, immaterial whether the authority is created by a statute or under a statute.
[940C] Ajay Hasia & Ors.
vs Khalid Mujib Sheravardi & Ors., ; , referred to.
(5) An examination of the relevant circumstances in regard to the appellant Bank leads to the irresistible conclusion that it is an instrumentality of the Central Government.
By establishing the Rural Banks the Central Government acts in discharge of its obligations under Arti cles 38 and 48 of Part IV of the Constitution through them.
[940G, 942C] (6) The provisions of the do not leave any room for doubt that the Regional Rural Banks are under deep and pervasive control of the Central Government and have been established as its instrumentality and, are, therefore, 'State ' within Article 12 of the Con stitution.
[943A] (7) There is no merit in the argument that the Courts cannot force the services of the respondent on the appellant bank by passing a decree for his re instatement in service and all that can be done is to grant a relief by way of compensation in a properly consti tuted suit.
[943B] Central Inland Water Transport Corporation Ltd. vs Brojo Nath Ganguly, , referred to. 937 (8) In the instant case, the departmental proceeding against the respondent from 5.7.1983 onwards is quashed and the decree for the plaintiff 's re instatement in service with consequential benefits is confirmed, subject to the modification that if the Bank authorities be of the view that in spite of the delay of several years the inquiry ought to be completed, it will be open to them to proceed with it and to take further steps in the proceeding from the stage where it stood on 5.7.1983, in accordance with the directions of the Court in this judgment.
[943F G]


judgement:
Civil Appeal No. 3955 (NCE) of 1987.
From the Judgment and Order dated 16.11.1987 of the Patna High Court in Election Petition No. 4 of 1985.
924 R.K. Garg and D.K. Garg for the Appellant.
S.N. Singh, H.L. Srivastava, B.M. Sharma and T.N. Singh for the Respondent.
The Judgment of the Court was delivered by SAIKIA, J.
This election appeal under S.116A of the Representation of the People Act 1951, hereinafter referred to as 'the Act ', is from the Judgment of the Patna High Court (Ranchi Bench) in the respondent 's Election Petition No. 4 of 1985 allowing the petition and declaring the elec tion of the appellant to the Bihar Legislative Assembly from the 286 Chandan Kyari (S.C.) Constituency to be void.
Pursuant to the Notification of Election to the Bihar Legislative Assembly, the Returning Officer of the 286 Chandan Kyari (S.C.) Assembly Constituency announced the following programme: A.
Last date for filing nomination paper 6.2.1985 B. Date of the Scrutiny of the nomination paper 7.2.1985 C.
Last date of withdrawal of candidature 9.2.1985 D. Date of Poll 5.3.1985 E. Date of counting 6.3.1985 The appellant, the respondent and 17 others filed their nomination papers; and the Returning Officer accepted the nomination papers found valid at the scrutiny.
Three of them withdrew their candidature, leaving 16 contesting candidates in the field.
The Returning Officer prepared and published the following list of contesting candidates with the allot ted symbols: section No. Name Party Symbol 1.
Ayodhya Rajak Independent Boat 2.
Uma Bawri " Horse 3.
Kokil Rajwar " Cultivator cutting crops 4.
Kiriti Bhusan Das " Fish 5.
Tilakdhari Bawri " Two leaves 6.
Dulal Das Independent Spade & Stroker 925 7.
Nakul Chandra Rajak Independent Rising Sun 8.
Panchanan Rajak " Ladder 9.
Padam Lochan Rajwar B.J.P. Lotus 10.
Mahindri Rajwar Independent Bicycle 11.
Murura Dasi Jharkhand A Woman carrying a Mukti Morcha basket on her head.
Yogendra Bawri Indian Scale Congress (J) 13.
Ramdas Ram Independent Camel 14.
Lata Devi (Mali) Indian Hand National Congress(I) 15.
Shankar Bawri Independent Swastik within the circle 16.
Haru Rajwar Marxist Bow and arrow coordination The poll was held according to schedule on 5.3.1985; and, after counting, the following result was announced on 6.3.1985 by the Returning Officer: section No. Name Party Votes secured 1.
Ayodhya Rajak Independent 187 2.
Uma Bawri " 590 3.
Kokil Rajwar " 4564 4.
Kiriti Bhusan Das " 477 5.
Tilakdhari Bawri " 1458 6.
Dulal Das " 550 7.
Nakul chandra Rajak " 387 8.
Panchanan Raj ak " 434 9.
Padam Lochan Rajwar B.J.P. 8231 10.
Mahandri Rajwar Independent 2500 926 11.
Marura Dasi Jharkhand 2228 Mukti Morcha 12.
Yogendra Bawri Indian Congress (J) 1163 13.
Ramdas Ram Independent 195 14.
Lata Devi (Mali) Indian National 8659 Congress (I) 15.
Shankar Bawri Independent 486 16.
Haru Rajwar Independent 8229 The appellant Lata Devi (Mali) was declared elected.
The respondent Haru Rajwar filed an election petition in the Patna High Court (Ranchi Bench) calling in question the election of the appellant to the Bihar Legislative Assembly on the ground, inter alia, that on 14.2.1985, he received a notice of the intention of the Returning Officer to change his allotted election symbol and though, through counsel, he objected on 15.2.1985, the Returning Officer re allotted the respondent 's 'bow and arrow ' symbol to Murura Dasi and instead allotted the symbol of 'ladder ' to him.
It was urged in the petition that he contested and won the earlier elec tion from the same constituency with the same 'bow and arrow ' symbol; the sudden change of his symbol left him with less than 20 days time for campaign and it resulted in confusion amongst his supporters as a result of which his election was materially affected by the change; that the election was liable to be declared void on the ground of violation of section 30(d) of the Representation of the People Act which, according to him, prescribed atleast 20 days time for election campaign, which he did not have after change of the symbol; and that the election was void also for viola tion of Rule 10(5) of the Conduct of Election Rules, 1961 under which, according to him, the election symbol could not be changed without permission of the Election Commission.
It is the appellant 's case that she did not receive any notice of the election petition against her.
The trial proceeded ex parte.
The respondent election petitioner examined himself at the trail.
The High Court by its impugned order dated 16.11.1987 allowed the petition and declared the appellant 's election to be void holding that the result of the election in so far as it concerned the returned candidate was materially af fected by violation of Rule 10(5) of the Conduct of Election Rules, 1961.
Hence this appeal.
927 Mr. R.K. Garg, the learned counsel for the appellant submits, inter alia, what even assuming what was stated by the respondent election petitioner to be true, there was no breach of section 30(d) of the Representation of the People Act inasmuch as the minimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll; that there was no violation of Rule 10(5) of the Conduct of Election Rules; and that even assuming that there was violation of this rule, the election petitioner dismally failed to prove by evidence that the result of the election was materially affected thereby, inasmuch as no sufficient evidence was adduced in proof of his claims, and he himself could not have proved his averments.
Mr. S.N. Singh, the learned counsel for the respondent, relying on AH Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangama, AIR 1977 SC 2 155, and Roop Lal Sathi vs Nachhattar Singh Gill, ; , strenuously argues that the violation of Rule 10(5) is itself sufficient to have materially affected the result of the election particularly in view of the fact that in the instant con stituency of backward voters, the symbol was very important, and change thereof had disastrous consequences to the re spondent candidate.
The material facts relevant to this appeal are not in dispute.
The list of contesting candidates with respective symbols was published on 9.2.1985; the election petitioner 's symbol 'bow and arrow ' was reallotted to candidate Murura Dasi and the symbol of ladder in place of 'bow and arrow ' was re allotted to the respondent; the poll took place on 5.3.1985; and the result was announced on 6.3.1985.
The respondent election petitioner in the High Court examined himself as P.W. 1 and deposed to the following effect: " . .
I was given the symbol of 'bow and arrow '.
I canvassed for my votes with the symbol of 'bow and arrow ' till Febru ary 15, 1985.
The Returning Officer changed my symbol and allotted to me the symbol of 'Sirhi ' (ladder).
The symbol of 'bow and arrow ' was given to Murura Dasi, the another candidate.
I was the sitting MLA and my symbol in the last election was also 'bow and arrow '.
I lost the election this time by a margin of 430 votes.
In the election held in the year 1980, I won the election by a margin of 9611 votes.
This time the main reason of my defeat in the election is the change of my symbol.
Due to change of my symbol, the voters were misled and they 928 could not be apprised of this change.
I could not canvass for my votes with the symbol of 'ladder ' in that constituency and in that area.
I was known largely and properly in the areas as the MLA with the symbol of 'bow and arrow '.
The candidate of Congress party was declared elected in this election.
The elec tion of my constituency was held in March 5, 1985.
I did not get 20 days time as provided in law after the change of my symbol.
" When recalled, he added that the symbol was a free symbol which had been allotted to him earlier i.e. the symbol of 'bow and arrow '.
"The last date of withdrawal of the nomination paper was February 9, 1985.
By the change of symbol 'bow and arrow ', I was materially affected and it affected the course of election and the voters were misled and they wrongly voted for Murura Dasi.
" Evidence of no other witness appears on record.
The question before us is, whether on the basis of the above evidence on record the High Court was justified in holding that the result of the election was materially affected and in declaring the appel lant 's election to be void on that ground.
Section 100 of the Representation of the People Act, 195 1 states the grounds for declaring an election to be void.
Sub section 1(d)(iv) says: (1) subject to the provisions of sub sectiOn (2) if the High Court is of opinion (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (iv) by any noncom pliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void: Sub section (2) is not relevant for the purpose of this case.
Was there in this case.
any violation of section 30(d)? Under section 30 of the Representation of the People Act, 1951, as soon as the notification calling upon a constituen cy to elect the member or members, is issued, the Election Commission shall, by notification in the Official Gazette appoint, amongst others, under clause (d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the twenti eth day after the last date for the withdrawal of candida ture.
In the instant case the last date for the withdrawal of nomination was 9.2.1985 and the date of poll was 5.3.1985.
There was, therefore, clear compliance with the requirement of S.30(d).
The respondent himself stated that on 14.12.1985 he received notice of intention of the Return ing Officer to change his election symbol and the symbol was actually changed on 15.2.1985.
We agree with the High Court that only the spirit of S.30(d) was not complied with.
In terms, this provision was 929 clearly complied with.
The submission that it was violated, has, therefore, to be rejected.
Rule 10 of the Conduct of Election Rules, 1961 deals with preparation of list of contesting candidates.
Sub rule (4) thereof requires that at an election in an assembly constituency, where a poll becomes necessary, the Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indicated their preference for the same symbol decide by lot to which of such candidates the symbol will be allotted.
Under sub rule (5) the allotment by the Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit.
The change of symbol has not been proved to be violative of Rule 10(5).
Even assuming violation, as Mr. Garg submits, was there enough evidence to show that the result of the election, in so far as it concerned the returned candidate, was materially affected? The election petitioner before the High Court deposed that he lost the election by a margin of 430 votes.
From the result sheet it appears that the appel lant secured 8659 votes and the respondent secured 8229 votes.
The difference is, therefore, of 430 votes.
Murura Dasi despite the 'bow and arrow ' symbol secured 2228 votes.
The election petitioner has not stated and proved that more than 430 voters would have voted for him, had the symbol of 'bow and arrow ' not been changed, and that they voted for Murura Dasi only for her having the symbol of 'bow and arrow '.
How could that be proved would.
of course, depend on the facts and circumstances of the case.
The result of election, in so far as it concerns a returned candidate, may be affected in various ways by various factors stated under section 100(1)(d).
So far as the burden and measure of proof of such material effect is concerned, the law has been enunciated by several decisions of this Court.
What is required to be demonstrated by evi dence will vary according to the way in which the result of the election in so far as it concerns the returned candidate is alleged to have been materially affected.
It is to be noted that in an election petition what is called in ques tion is the election and what is claimed is that the elec tion 930 of all or any of the returned candidates is void, with or without a further declaration that the election petitioner himself or any other candidate has been duly elected.
De claring the election of the returned candidate void does not, by itself, entitle the election petitioner or any other candidate to be declared elected.
Vashit Narain Sharma vs Der Chandra and Ors., ; , was a case of improper acceptance or rejection of nomination paper and the manner of proving that the result of the election had been materially affected was slightly different from that of the instant case as that involved the question of possible distribution of wasted votes.
However, this Court has stated that the result of the election being materially affected is a matter which has to be proved and the onus of proving it lies upon the petitioner.
Their Lordships observed: "It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidates.
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce satisfactory evi dence to enable the court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.
" In Inayatullah Khan vs Diwanchand Mahajan & Ors, 19, where a nominated candidate was found to have been disqualified under section 7(d) of the Act the question arose as to what had happened to the election as a result.
It was contended that the margin of votes was small and that the result of the election must be taken to have been materially affected because Nandial, a disqualified candidate, got 8,000 odd votes, which in the event of his not contesting would have gone to Mahajan.
Evidence was led to show how the votes which went to Nandial would have been divided and both sides claimed that if Nandial had not contested the elec tion, the votes would have gone to them.
The Madhya Pradesh High Court observed that the evidence on this part of the case was exceedingly general and apart from the statement by the witnesses who came forward as to their opinion, there was 931 nothing definite about it.
All the evidence which had been brought to Court 's notice was not decisive of the matter under section 100 of the Act in view of the test laid down in Vashit Narain Sharma 's case (supra).
It can, therefore, be taken as settled that the party who wishes herein to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been mate rially affected by the violation of Rule 10(5) of the Rules.
For doing this, it has to be demonstrated that the votes would have been diverted in such a way that the returned candidate would have been unsuccessful.
In the instant case there was no evidence to demonstrate the returned candidate having derived any benefit from the change of symbol of the election petitioner.
Murura Dasi, to whom the 'bow and arrow ' symbol was later allotted, was not the successful candidate.
The election petitioner was required to show that such number of votes had gone in favour of the successful candidate instead of in favour of the petitioner, simply because of the change of symbol as would, without that number of votes, make the successful candidates unsuccess ful.
The petitioner, besides making bare statement, had not produced any other satisfactory evidence in support of such a proposition.
In S.N. Balakrishna vs Fernandes, ; ; , which was a case under section 100(1)(d)(ii) and section 123(4) corrupt practice charged against an agent other than election agent, on the question of the result of the election, in so far it concerned the returned candidate, being materially affected, Hidayatullah, C.J. observed at para 58: "In our opinion the matter cannot be consid ered on possibility.
Vashit Narain 's case insists on proof.
If the margin of votes were small something might be made of the points mentioned by Mr. Jethmalani.
But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge.
There is no room, therefore, for a reasonable judicial guess.
The law requires proof.
How far that proof should go or what it should contain is not provided by the legislature.
In Vashit 's case; , , and in Inayatullah vs Diwanchand Mahajan, [1958] 15 Ele LR 219 at pp. 235 246 (MP) the provision was held to prescribe an impossible burden.
The law has however remained as be fore.
We arc bound by the rulings of this Court and must say that the burden has not been successfully discharged.
We cannot over look the rulings of this Court and follow the English rulings cited to us.
" 932 In Chhedi Ram vs Jhilmit Ram and Ors., which was also a case of improper acceptance of nomination paper, Chinnappa Reddy, J. observed that the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances, and reasonable probabilities of the case.
Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
If having regard to the facts and circumstances of the case, a reasonable probability is all one way, the Court must not lay down an impossible standard of proof and hold a fact as not proved.
As was reiterated in Shiv Charan Singh vs Chandra Bhan Singh, ; , in the absence of any proof the result of an election can not be held to be materially affected; and it is not permissible in law to set aside the election of the returned candidate on mere surmises and conjectures.
A decision in election petition can be given only on positive and affirmative evidence and not on mere speculation and suspicious, however strong they are.
Indeed, in the instant case there is no such positive and affirma tive evidence.
,Mere assertions by the election petitioner were not enough.
Nothing was alleged and proved against the successful candidate.
There could be no proposition or contention that a candidate with a particular symbol would always be successful at the hustings or that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted.
Mr. S.N. Singh relies on paragraph 29 of the Judgment in All Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangma, (supra) wherein Goswami, J. observed: "For the purpose of holding elections, allot ment of symbol will find a prime place in a country where illiteracy is still very high.
It has been found from experience that symbol as a device for casting votes in favour of a candidate of one 's choice has proved an inval uable aid.
Apart from this, just as people develop a sense of honour, glory and patriotic pride for a flag of one 's country, similarly great fervour and emotions are generated for a symbol representing a political party.
This is particularly so in a parliamentary democracy which is conducted on party 933 lines.
People after a time identify themselves with the symbol and the flag.
These are great unifying insignia which cannot all of a sudden be effaced.
" There is no dispute about the importance of the symbol in a backward constituency.
This will, however, not absolve the election petitioner of his burden of proving that the result of the election has been materially affected.
In Roop Lal Sathi vs Nachhattar Singh Gill, (supra) in the facts of that case, this Court observed that: "The symbols order was issued by the Election Commission under Article 324 of the Constitu tion in exercise of its undoubted powers of superintendence, direction and control of the conduct of all elections to Parliament and Legislature of every State.
It is also relata ble to Rules 5 and 10 of the Conduct of Elec tions Rules framed by the Central Government in exercise of their powers under section 169 of the Act.
Rule 4 of the Conduct of Elections Rules provides that every nomination paper presented under section 33 of the Act shall be in Forms 2 A to 2 E, as may be appropriate.
Forms 2 A and 2 B require the candidate to choose symbol.
Under Rule 5(1) the Election Commis sion by notification may specify the symbols that may be chosen by candidates at elections to Parliamentary and Assembly constituencies.
Under Rule 10(4) the Returning Officer shall consider the choice of symbols expressed by contesting candidates and "subject to any general or special direction issued by the Election Commission" allot different symbols to different candidates.
The allotment of symbols by the Returning Officer is final under sub rule (5) of Rule 10 except where it is inconsistent with any directions issued by the Election Commission in that behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit." Mr. Singh 's submission is as if the violation of sub rule (5) of Rule 10 would ipso facto make an election void.
That, however, is not the legal position as would be clear from the provision itself.
Section 100(1)(d)(iv) of the Act clearly says that subject to the provisions of sub section (2) if the High Court is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this 934 Act, the High Court shall declare the election of the re turned candidate to be void.
The violation of sub rule (5) of Rule loper se will not invalidate the election.
The election petitioner has also to prove that the result of the election, in so far as it concerns the returned candidate, was materially affected.
From the evidence on record considered in light of the law enunciated above, we have no doubt that the election petitioner dismally failed to discharge the burden of prov ing that the result of the election, in so far it concerned the appellant, who has been the returned candidate, was materially affected.
The High Court was in error in holding, without sufficient evidence, that it was materially affect ed.
In the result, the impugned Judgment of the High Court is set aside and this appeal is allowed with costs which we quantify at Rs.3,000 (Rupees three thousand).
Let steps be taken under Section 116C(2) of the Act.
R.S.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
In the election to the Bihar Legislative Assembly held in 1985, the appellant was declared elected from the 286 Chandan Kyari (S.C.) Constituency.
The respondent, a sitting M.L.A., who secured 430 votes less than the appellant, filed an election petition in the Patna High Court (Ranchi Bench) calling in question the election of the appellant.
The respondent 's main grievance was that the Returning Officer re allocated his 'bow and arrow ' symbol to another candidate Murura Dasi, and instead allotted the symbol of 'ladder ' to him, and this sudden change of symbol left him with less than 20 days time for campaign which resulted in confusion amongst his supporters as a result of which his election was materially affected.
On this premise the respondent contend ed that the election was liable to be declared void on the ground of (i) violation of section 30(d) of the Representa tion of People Act, 1951, which according to him prescribed atleast 20 days time for election campaign, which he did not have after change of the symbol; and (ii) violation of Rule 10(5) of the Conduct of Election Rules, 1961 under which, according to him, the election symbol could not be changed without permission of the Election Commission.
The respond ent election petitioner examined himself.
Evidence of no other witness appears on record.
The High Court allowed the petition and declared the appellant 's election to be void holding that the result of the election in so Tar as it concerned the returned candi date was materially affected by violation of Rule 10(5) of the Conduct of Election Rules, 1961.
Before this Court, it was contended on behalf of the appel lant that 922 (i) the appellant did not receive any notice of the election petition against her and the trial had proceeded ex parte; (ii) there was no breach of section 30(d) of the Representa tion of the People Act Inasmuch as the minimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll; (iii) there was no violation of Rule 10(5) of the Conduct of Election Rules; and (iv) even assuming that there was violation of this rule, the election petitioner dismally failed to prove by evidence that the result of the election was materially affected thereby, inasmuch as no sufficient evidence was adduced in proof of his claim, and he himself could not have proved his aver ments.
Allowing the appeal, this Court, HELD: (1) Under s.30 of the Representation of the People Act, 1951, as soon as the notification calling upon a con stituency to elect the member or members is issued, the Election Commission shall, by notification in the Official Gazette appoint, amongst others, under clause (d), the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal of candidature.
[928F] (2) In the instant case, the last date for the withdraw al of nomination was 9.2.1985 and the date of poll was 5.3.1985.
There was, therefore, clear compliance with the requirement of section 30(d).
The respondent himself stated that on 14.2.1985 he received notice of intention of the Return ing Officer to change his election symbol and the symbol was actually changed on 15.2.1985.
This Court agrees with the High Court that only the spirit of section 30(d) was not complied with.
In terms, this provision was clearly complied with.
[928G 929A] (3) The violation of sub rule (5) of Rule 10 per se will not invalidate the election.
The election petitioner has also to prove that the result of the election, in so far as it concerns the returned candidate, was materially affected.
[934A B] (4) The party who wishes to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been materially affected by the violation of Rule 10(5) of the Rules.
For doing this, it has to be demonstrated that the votes would have been di verted in such a way that the returned candidate would have been unsuccessfull.
[931B] 923 Vashist Narain Sharma vs Dev Chandra & Ors., ; ; lnayatullah Khan vs Diwanchand Mahajan & Ors., ; S.N. Balakrishna vs Fernandes, ; , ; Shiv Charan Singh vs Chandra Bhan Singh, ; and Chhedi Ram vs Jhilmit Ram & Ors., , referred to.
(5) A decision in an election petition can be given only on positive and affirmative evidence and not on mere specu lation and suspicion, however, strong they are.
In the instant case, there is no such positive and affirmative evidence.
Mere assertions by the election petitioner were not enough.
[932D] (6) There could be no proposition or contention that a candidate with a particular symbol would always be success ful at the hustings or that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted.
[932E] (7) There is no dispute about the importance of the symbol in a backward constituency.
This will however, not absolve the election petitioner of his burden of proving that the result of the election has been materially affect ed.
[933B] All Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangama, ; and Roop Lal Sathi vs Nach hattar Singh Gill; , , referred to.
(8) The election petitioner has not stated and proved that more than 430 voters would have voted for him, had the symbol of 'bow and arrow ' not been changed, and that they voted for Murura Dasi only for her having the symbol of 'bow and arrow '.
How could that be proved would.
of course, depends on the facts and circumstances of the case.
[929F] (9) In the instant case, the election petitioner dismal ly failed to discharge the burden of proving that the result of the election, in so far as it concerned the appellant, who has been the returned candidate, was materially affect ed.
The High Court was in error in holding, without suffi cient evidence, that it was materially affected.
[934C]


judgement:
ivil Appeal No. 3474 of 1988.
From the Judgment and Order dated 10.5.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/62/85 C. Harish N. Salve, Mrs. M. Sud, Ms. Aruna Jain and Praveen Kumar for the Appellant.
B. Dutta, Additional Solicitor General, T.V.S.N. Chari and P. Parmeshwaran for the Respondent. 894 The Judgment of the Court was delivered by OJHA, J.
This appeal under section 35L of the (hereinafter referred to as the Act) has been preferred against the order dated June 28, 1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi.
The appellant carries on the business of manufacture and sale of paper.
On the plea that in the manufacture of paper the appellant uses paper cores, exemp tion from payment of excise on such paper cores was claimed by it on the basis of a Notification No. 201/79 dated June 4, 1979 as amended by Notification No. 105/82 dated February 28, 1982 (hereinafter referred to as the Notification) The Assistant Collector, Central Excise rejected the claim of the appellant but its claim on appeal as regards exemption from duty on paper cores was allowed by the Appellate Col lector.
Aggrieved by that order the Collector of Central Excise, Meerut, preferred the appeal in which the order which is the subjectmatter of the present appeal, was passed.
The Notification on the basis of which exemption was claimed by the appellant inter alia provides: "the Central Government hereby exempts all excisable goods (hereinafter referred as "the said goods"), on which the duty of excise is leviable and in the manufacture of which any goods fall ing under Item No. 68 of the First Schedule to the (1 of 1944) have been used, as raw materials or component parts (hereinafter referred as "the inputs"), from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs." As is apparent even from the order of the Tribunal the details of the use of paper cores in the manufacture of paper as set out by the appellant on the basis whereof the exemption was claimed by it read as hereunder: "Paper cores: Paper cores are used in paper mill on re winding and cutting machines.
The full width of paper manufactured on paper machine is cut in different sizes of reel and sheets according to customer 's requirement.
To cut the parent roll of paper manufactured on paper machine which is wound on steel shell into small reels suitable for cutter machine, the paper is re wound on 'paper cores ' fitted on a shaft on re winding machine.
The reels thus re winded on paper cores can be easily cut into sheets on cutter machine into re quired size or sent to customers as 895 reels as such, there is no other use of paper cores except their use in re winding and cutting machine in paper mills".
On the basis of the details aforesaid the case of the appel lant was that the paper cores constituted "component parts" within the meaning of the Notification entitling it to the exemption granted by the said Notification.
The case of the respondent on the other hand was that paper cores were really used by the appellant as packing material after the paper had already been manufactured for taking it to the market and did not constitute component parts of paper.
Before dealing with respective submissions made by learned counsel for the parties it may be pointed out that it is not in dispute that the excise duty was payable at the relevant time separately both on paper and paper core under different tariff items of the First Schedule to the Act and it has also not been disputed by the respondent that if paper core fell under the term "component parts", the appellant would be entitled to the exemption as claimed by it and contem plated by the Notification.
The short question which, there fore, arises for consideration in the instant appeal is whether paper core is used in the manufacture of paper as component part.
Even though the term "component parts" has not been defined either by the Act or by the Notification the term "manufacture" has been defined in section 2(f) of the Act.
This definition inter alia contemplates that "manufacture" includes any process, incidental or ancillary to the completion of a manufactured product.
Section 3 of the Act which is the charging section contemplates levy and collection of duty of excise on all "excisable goods".
The First Schedule to the Act specifies the excisable goods under various tariff items.
In the absence of any definition of the term "component parts" it is permissible to refer to the dictionary meaning of the word "component".
According to the Webster Comprehensive Dictionary, International Edition the word "component" inter alia means a constitutent part.
The term "manufacture", as already indicated above, accord ing to its definition in the Act includes any process inci dental or ancillary to the completion of manufactured product.
In this context what has to be considered is wheth er in the manufacture of paper, paper core is used as a constituent part and is necessary to be used in "any process incidental or ancillary to the completion of a manufactured product" namely paper in the instant case.
In M/s J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs Sales Tax Officer, Kanpur and Another, [1965] 1 S.C.R. Page 900 while dealing with the expression "in the manufacture of goods" used in section 8(3)(b) of the Central Sales Tax Act, 1965 and Rule 13 framed 896 under the Act it was held that the said expression "would normally encompass the entire process carried on by the dealer of converting raw materials into finished goods.
Where any particular process is so integrally connected with the ultimate production of goods that but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would, in our judgment, fall Within the expression.
" It was further held: "In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process or activity manufacture may, even if theoreti cally possible, be commercially inexpedient, goods intended for use in the process or activity as specified in Rule 13 will qualify for special treatment." (Emphasis supplied) In Bhor Industries Ltd., Bombay vs Collector of Central Excise, Bombay, [1989] 1 S.C.C. Page 602 while dealing with excise duty it was held: "Therefore, the first principle that emerges is that excise was a duty on goods as speci fied in the schedule.
In order to be goods an article must be something which can ordinarily come to the market and is brought for sale and must be known to the market as such.
There fore, the marketability in the sense that the goods are known in the market or are capable of being sold and purchased in the market is essential.
" It is in this background that the use of paper core in the process of manufacture of paper has to be considered.
If it is found that the use of paper core is necessary in "any process incidental or ancillary to the completion of" paper as marketable goods and it would consequently be commercial ly inexpedient to sell paper without the use of paper core, it would certainly be a constituent part of paper and would thus fall within the purview of the term "component parts" used in the Notification.
This takes us to the process of manufacture of paper.
The process of paper manufacture is to be found at pages 230 to 235 of Part 17 of Encyclopaedia Britannica.
The process of paper manufacture by paper making machine is contained at pages 232 onwards.
After referring to the various stages of manufacture of paper it is stated: "After the drying comes the calendering and there are usually two or more sets or stacks of calendering rolls, according to the grade of surface required.
These calenders consist of vertical stacks of chilled iron rolls, generally five 897 in a stack, which revolve on one another and some of which are bored for heating by steam; pressure is applied to them at will, by ad justing levers at the top of each stack.
Finally the paper passes to cooling rolls, where the paper can be cooled by water spray if necessary and is then wound on to a reel.
" Thereafter at page 234 it is stated: "Paper, though made in the roll on the ma chine, is usually sold in the form of sheets.
A number of reels of paper, on their spindles, mounted in a stack, are fed, as a pile of webs, between two rollers: a series of revolv ing knives slits them longitudinally as they emerge from between the rollers, in effect into strips which are cut again transversely by the scissors action of a movable upper knife, working periodically against a lower fixed knife.
The cut sheets fall on 'to an endless felt for stacking.
" At the bottom of the same page it is stated: "Paper is sold in sheets of different sizes and is made up into reams containing from 480 to 5 16 sheets in Great Britain, 500 in the United States; these sizes correspond to different trade names, as foolscap, demy, royal, etc.
" It is thus apparent that paper is made (1) in the form of rolls and (2) in the form of sheets and the paper which is sold in the form of sheets is cut in desired sizes by taking recourse to the process referred to above.
Chapter XIII of the Story of Papermaking by Edwin Suter meister 1954 Edition contains the process known as calender ing and finishing.
At pages 183 and 184 it is stated: "The paper from the machine, no matter what its finish, goes next to the reels which form large rolls the full width of the machine.
The reels are so arranged that when one cylinder is full another can take its place while the paper machine is running continuously.
The full cylinder is then rewound at higher speed so that it may again be ready when needed by the paper machine.
On rewinding the paper is trimmed on the edges and if desired is slit into any number 898 of narrower rolls .
The cores on which the paper is wound will depend to some extent on what happens to the paper next.
If it is delivered to the customer in rolls as it comes from the rewinder the cores are apt to be of heavy board stock, wound and pasted on a mandrel: if the rolls of paper pass to another part of the same plant for further treatment the cores are likely to be of iron pipe, which can be used over and over.
" With regard to the use of roll paper it is stated at page 185: "Roll paper is very widely used in many lines of work.
Newspapers are printed, cut and folded direct from rolls, each of which may weigh 1400 pounds or more; much craft paper is sold to be used directly from the roll in wrapping goods, while tremendous quantities are used to feed the machines making paper bags.
Paper for the conventional coating operations is delivered to the coating plant in roll form; and considerable quantities of white paper are printed continuously from rolls.
These are only a few of the more obvi ous uses of roll paper.
All roll paper must reach the consumer in perfect condition if it is to be of the great est use.
It must be carefully wrapped and the ends of the rolls protected by stout heads to keep edges of the paper from being injured.
" As regards paper which is to be used in sheet form it is stated at pages 190 and 191: "Paper which is to be used in sheet form may be so prepared by passing directly from the reel stand of the paper machine to a cutter, layboy and sheet counter in line with the machine and attended by the paper machine crew.
This system is used for coarse papers which do not need sorting, and it is common on machines which run off pulp for chemical or papermaking use.
As a more common alternative the rolls go to independent cutters from the rewinders or the supercalenders, according to the finish the final paper is to have.
The rolls are placed on reel stands which are constructed to hold up to twelve or more.
Any one of these may be cut singly, or all may be cut together as desired.
From the reels the paper passes through a cutter 899 which has a knife on a revolving drum acting in a shearing manner against a fixed bed knife.
Each time the drum revolves the knife cuts a sheet from the web of paper being fed continuously at constant speed, and the length of the sheet cut is regulated by altering the speed at which the revolving knife tums.
Cutters are also designed to split the paper into the right width of roll, and to trim the edges, if this has not already been done at the rewinder.
The paper leaves the cutter on trav eling tapes and goes to a layboy which auto matically jogs the sheets into uniform piles.
These layboys take the place of operatives who formerly did the same work, and enable higher cutter speeds to be employed.
" In the Dictionary of Paper (Fourth Edi tion, published under the Auspices and Direc tion of the American Paper Institute, Inc.) the purpose of rewinding is stated thus at page 346: "Rewinding: The operation of winding the paper accumulated on the reel of a paper machine onto a core to a tightly wound roll suitable for shipping or for use in the finishing or converting department.
During rewinding, defective paper in the reel is usually removed and breaks in the sheet are spliced and marked.
" In Pulp & Paper Science & Technology (Vol. 2, edited by C. Earl Libby) it is stated at page 271. "The prime purpose of the paper machine re winder is to split the sheet into the required widths, to provide rolls of paper having the correct diameter, and to produce firm, tightly wound rolls of paper that can be unwound into highspeed printing presses with few tension problems.
" What becomes obvious from the processes referred to above, therefore, is that even though rewinding has to be done both for manufacturing roll paper as well as sheet paper, use of paper core in rewinding is necessary only with regard to manufacture of roll paper, inasmuch as it is the paper as rolled on paper core which is delivered to the customer in the form of rolls and unless in the process of rewinding paper core is used, paper cannot come cut of the machine in rolls so as to be sold as a marketable commodity known as roll paper.
The use of 900 paper core, however, is not 'necessary for the manufacture of paper sheets.
As stated at page 184 of the Story of Papermaking (supra), the core on which the paper is wound will depend to some extent on what happens to the paper next.
If it is delivered to the customer in rolls as it comes from the rewinder the core is apt to be of heavy board stock wound and pasted at mandrel.
If, however, the rolls of paper are not be delivered to the customer in the form of rolls as such and the rolls of paper are to pass to another part of the same plant for further treatment the core is likely to be of iron pipe which can be used over and over.
Consequently core of iron pipe is more likely to be used in the normal course for further treatment in the plant which will include the process of cutting the paper into sheets.
Inasmuch as core of iron pipe can be used over and over, it cannot be said that the use of paper core is necessary for the rewinding of paper meant to be cut into sheets.
It may be that for the sake of convenience paper core may be used by some manufacturer even for rewinding of such paper as is meant to be cut in sheets but in that case it would at best provide more convenience to such manufacturer but for that reason paper core will not become a constitutent part of paper manufactured in sheets.
In view of the foregoing discussion, we are of the opinion that use of paper core is necessary for rewinding of paper if it is delivered to the customer in rolls and would come within the purview of the expression "any process incidental or ancillary to the completion of a manufactured product" used in the definition of the term "manufacture" in section 2(f) of the Act and for the same reason paper core would also be constituent part of paper and would thus fall within the term "component parts" used in the Notification in so far as manufacture of paper in rolls is concerned.
Paper core, however, cannot be said to be used in the manu facture of paper in sheets as component part.
We are con scious that the relevant tariff item uses the word "paper" but since paper in rolls and paper in sheets are nothing but different forms of paper, both of them would be excisable goods as paper under the relevant tariff item.
In the result, this appeal succeeds and is allowed to this extent that it is held that in the manufacture of paper rolls delivered to the customers for use as roll paper, paper core is used as component part.
The orders of the authorities below are modified to this extent.
In the cir cumstances of the case, however, the parties shall bear their own costs.
R.S.S. Appeal allowed.

summary/full:
The appellant company carried on the business of manu facture and sale of paper.
It claimed exemption from payment of excise on paper core which, accordingly to the appellant, was used in the manufacture of paper.
The case of the appel lant was that the paper cores used in the manufacture of paper constituted "component parts" within the meaning of Notification No. 201/79 dated June 4, 1979 as amended.
The case of the respondent on the other hand was that the paper cores were really used by the appellant as packing material after the paper had already been manufactured for taking it to the market and did not constitute "component parts" of paper.
The Assistant Collector, Central Excise, rejected the claim of the appellant but its claim on appeal as regards exemption from duty on paper cores was allowed by the Appel late Collector.
The Customs, Excise and Gold (Control) Appellate Tribunal however allowed the appeal of the Reve nue.
Partly allowing the appeal, this Court, HELD: 1.
Even though the term "component parts" has not been defined either by the Act or by the Notification, the term "manufacture" has been defined in section 2(f) of the .
This definition contem plates that "manufacture" includes any process, incidental or ancillary to the completion of a manufactured product.
[895D] 2.
In the absence of any definition of the term "compo nent partS" it is permissible to refer to the dictionary meaning of the word "component".
Accordingly to the diction ary meaning, the word "component" inter alia means a con stituent part.
[895F] 3.
If the use of paper core is necessary in "any process incidental 893 or ancillary to the completion of" paper as marketable goods and it would consequently be commercially inexpedient to sell paper without the use of paper core, it would certainly be a constituent part of paper and would thus fall within the purview of the term "component parts" used in the Noti fication.
[896F] M/s J.K. Cotton Spinning & Weaving Mills vs Sales Tax Officer, Nagpur and another, [1965] 1 S.C.R. Page 900 and Bhor Industries Ltd. Bombay vs Collector of Central Excise, Bombay, ; , referred to.
Paper is made (1) in the form of rolls and (2) in the form of sheets and the paper which is sold in the form of sheets is cut in desired sizes.
Even though rewinding has to be done both for manufacturing roll paper as well as sheet paper, use of paper core in rewinding is necessary only with regard to manufacture of roll paper, inasmuch as it is the paper as rolled on paper core which is delivered to the customer in the form of rolls and unless in the process of rewinding paper core is used, paper cannot come out of the machine in rolls so as to be sold as a marketable commodity known as roll paper.
The use of paper core, however, is not necessary for the manufacture of paper sheets.
[897E, 899G 900A] 5.
Use of paper core would come within the purview of the expression "any process incidental or ancillary to the completion of manufactured products" used in the definition of the term "manufacture" in section 2(f) of the Act and for the same reason paper core would also be constituent part of paper and would thus fail within the term "component parts" used in the Notification in so far as manufacture of paper in rolls is concerned.
Paper core, however, cannot be said to be used in the manufacture of paper in sheets as compo nent parts.
[900E F]