Salil Kumar Datta, J.:-

(1) The petitioner in this rule is a company incorporated under the indian companies act and carries on the business of manufacturing photo flash bulbs with voltage not exceeding 3. It appears that the petitioner as required by the excise authorities took out a licence for manufacturing photo flash bulbs which are according to the department excisable goods. The petitioner was asked to pay 15% ad valorem plus 10% excise duty in respect of the photo flash bulbs manufactured by it. The duty was paid under protest. Thereafter the petitioner by a letter annexure b informed the customs authorities that the pradip lamp works, manufacturing identical type of photo flash bulbs, was paying excise duty at the rate of 2 pies for each bulb and accordingly the petitioner prayed for necessary relief. By letter dated 30. 9. 64 (annexure 'c') the petitioner was informed that the flash bulbs fell under t. C. 32 (1) (i) and thus assessable at 10 pies per bulb. The petitioner was allowed a refund on the basis of the said assessment. Thereafter by a letter dated 24. 1. 66 (annexure 'd') the petitioner was informed that the photo flash bulb was to be assessed at 2 pies per bulb as the bulb was designed for operation at a voltage not exceeding 5. On the basis of this assessment the petitioner submitted a bill to the respondents for refund of a sum of rs. 26. 708/ - being the assessed amount deposited by him on the basis of the earlier assessment. The petitioner was informed by a letter dated 23. 12. 66, annexure e to the petition, that the correct duty was 10 pies per bulb plus 10% special excise duty. Accordingly, the refund claimed was not entertained. Against this order the petitioner company being aggrieved preferred an appeal before the respondent no. 2, and this appeal is pending. It may be mentioned here that in annexure e it was stated that the bulb manufactured by the petitioner is not miniature bulb and had voltage exceeding 5 and rated capacity of 10 watts. It further appears that there was a letter issued by the assistant collector central excise, calcutta ii division to the petitioner (annexure h) wherein it was stated that although the photo flash bulbs manufactured by the petitioner conformed to certain specification laid down for miniature lamps the bulb is not known commercially as miniature lamp and is not entitled to concession provided for in the said tariff item. Accordingly the petitioner was liable to be assessed under central excise tariff item no. 32 (4) at 15% ad valorem duty. The petitioner made a representation against this and ultimately by a letter dated 24th july 1969, annexure m to the petition, the petitioner was informed as follows : - "dear sirs," i am to inform you that the photo flash bulb manufactured by you and being allowed clearance on provisional assessment has since been classified under tc 32 (4). You are, therefore, requested to take clearance of the above goods on payment of duty @ 16% ad - valorem (basis excise duty) plus 10% of the basis excise duty as special duty. You are further requested to pay duty at the appropriate rate on all the past clearances and finalise the provisional assessment. Yours faithfully, sd/ - illegible, superintendent, central excise, group cal. - ii divn. G. , inspection unit no. 1. "

(2) The petitioner challenged this older as also the earlier orders on various grounds and contended inter alia that the term "electric lighting bulb" does not include photo flash bulb as such bulbs are not designed for general illumination and in the indian custom tariff guide, tenth edition, at page 403 it is stated that the term "electric lighting bulbs" extends only to such articles as are designed for general illumination. It was further stated that the light for photo flash bulbs is not produced by electricity but by combustion of a metal foil ignited by battery cell. It was also contended that the levy of excise duty on indigenous photo flash bulb is discriminatory as no such duty is imposed on imported bulbs further the petitioner was entitled to the exemption provided for in tariff item no. 32 being commercially known as miniature lamps. The petitioner also contended that the excise duty charged from pradip lamp works was 2 pies per bulb while the petitioner was charged with much higher rate. The petitioner lastly contended that the impugned order, annexure m, is not complete order and no reasons have been given by the respondents for not treating the photo flash bulbs under central excise tariff item no. 32 (1) (i) but under item no. 32 (4) and in any event imposition of excise duty prior to 5. 11. 69 is illegal on these allegations and contentions the petitioner moved this court and obtained the present rule.

(3) This rule has been opposed by the respondents by filing affidavit - in - opposition and all material allegations made in the petition are denied. It is denied that there was any over - assessment and it is contended that the assessment made on the photo flash bulbs under excise tariff item 32 (4) is proper, legal and valid. Further the bulbs manufactured by the petitioner are not commercially known as miniature bulbs and the petitioner is not entitled to any exemption. About the rate charged on pradip lamp works the respondents stated that they had no knowledge about the assessment on pradip lamp works at the rate of 2 pies per bulb and made no admission in respect thereof. The petitioner further contended that the customs act and the tariff act on the one hand and the central excises and salts act on the other are different statutes with different objectives and the interpretation given in respect of any provision of one statute cannot be imported for interpreting any provision of the other statute. Accordingly the definition of electric bulb as given in the tariff act cannot be imported for interpreting the definition of electric bulb in excise item no. 32.

(4) Mr. Amitava choudhury, learned advocate appearing for the petitioner, has taken various points in support of the rule. At the outset, however, it may be stated that we are concerned here in this rule with annexure m while the other annexures which have been impugned in the rule being annexures c, d and e are the subject - matter of the appeal before the collector of excise. The said appeal is pending and accordingly we are not concerned here with the said annexures c. D and e in this rule. Mr. Chowdhuri's first contention is that the photo flash bulb is not electric lighting bulb and as such cannot come within excise tariff 32 (4). Consideration of the aspects involve a technical examination of the bulb, manufactured by the petitioner, through experts. Mr. Chowdhury has submitted that these aspects should be considered and disposed of by this court, but in view of the technical questions involved i do not think that it would be proper for me to decide the question nor are there any materials for arriving at any conclusion on this point.

(5) Mr. Chowdhury has next contended that the custom tariff item no. 60 (2) corresponds to central excise tariff item no. 32 and as the photo flash bulb has not been put in custom item no. 60 (2) it can not be put under central excise tariff item 32. It was further contended that the photo flash bulb comes under custom tariff item no. 73 and there is no corresponding item in central excise tariff. Accordingly there is no justification for putting it under central excise item 32. Mr. Chowdhury has also submitted that in construing one act by the language of another the principle enunciated at page 32 of maxwell "on interpretation of statutes," 11th edition, should be considered in which the dictum that "where there are different statutes in pari materia, though made at different times, or even expired and not refering to each other, they shall be taken and construed together, as one system and as explanatory of each other" was quoted as sound proposition of law. On the basis of this principle mr. Chowdhuri wants the court to interpret the provisions of item 32 with reference to the tariff act. It will, however, appear from section 12 of the excise act that the central government by notification may declare that any of the provisions of the sea customs act refering to particular matters therein mentioned shall be applicable in regard to like matters in respect of duties imposed by section 3 of the act. In my opinion, each of the two acts, namely the customs act read with tariff act and the central excises and salt act are complete code in themselves and contain separate provisions for implementation thereof. In view of the express provisions of section 12 of the excise act i do not think that it would be proper or justifiable to interpret the provisions of the excise act with reference to the provisions of the customs act read with the tariff act unless specifically provided. Accordingly i reject the contentions of mr. Chowdury asking me to interpret the provisions of the excises act with reference to the provisions of the customs act read with the tariff act in absence of any express provision.

(6) The ground of discrimination between indigenous goods and imported goods regarding levy of excise duty, even if it were so, is not acceptable as the imported goods form a separate class from the goods manufactured in india. Whether imported goods in interest of indigenous goods should be subject to excise duty is a matter of policy with which the court is not concerned.

(7) It is now to be considered as to whether the impugned order passed by the superintendent, central excise, annexure m, is an order in accordance with law. It appears from the affidavit - in opposition that there has been certain clarification made by the central board of revenue directing that photo flash bulbs are liable to be assessed to the central excise duty under item 32 (4) and it has been held that the duties leviable are 16% ad valorem plus 10% basic duty as special duty. Mr. Chowdhury has contended that these clarifications made by the board of revenue have no legal or binding force on the assessing authority. He has referred me to rule 233 of the central excise rules which gives power to the central board of revenue and collector to issue written instructions in supplementary matters arising out of the rules. In the decision in (1) orient paper mills ltd. V. Union of india, a. I. R. 1969 s. C. 48 at page 51 it was observed :

"under this rule the only instruction that the board can issue is that relating to administrative matters; otherwise that rule will have to be considered as ultra vires section 35 of the act."

This decision was followed in (2) orient paper mills ltd. V. Union of india a. I. R. 1970 s. C. 1498 in which it was observed that:

"when the assessment is to be made by the deputy superintendent or the assistant collector the collector, to whom an appeal lies against his order of assessment, cannot control or fetter his judgment in the matter of assessment. If the collector issue directions by which the deputy superintendent or the assistant collector is bound no room is left for the exercise of his own independent judgment. It is apparent from the judgment referred to above and numerous other decisions of this court delivered in respect of various taxation laws that the assessing authorities exercise quasi - judicial functions and they have duty cast on them to act in a judicial and independent manner. If their judgment is controlled by the directions given by the collector it cannot be said to be their independent judgment in any sense of the word. An appeal then to the collector becomes an empty formality."

(8) In view of the above authorities it is patent that the board of revenue can issue clarifications but they will not amount as fetter on the assessing authorities to consider any case before him on merits. In the impugned order, there is no decision by the superintendent, central excise who is the assessing authority and he has simply followed a classification made obviously by a superior authority, which action, on the principles laid down as noted above is untenable in law. In this case, there is another infirmity in the order of assessment in that the order classifying photo flash bulbs under item 32 (4) is without any disclosed reason. There is no dispute that such appealable orders must be speaking orders to enable the appellate authority to consider the judgment under appeal in proper perspective and to examine the reasonings in support. As the order does not contain any reason for classification, this order even for this reason cannot be sustained and as such has to be set aside.

(9) Mr. Chowdhuri has contended that in sending back the case to the superintendent, central excise, group calcutta - ii divn. Poddar court, 18 rabindra sarani which is the appropriate authority at present to pass the impugned order, there should be further direction on him to consider the petitioner's contentions on the following grounds: (a) whether photo flash bulbs are distinguishable from electric lighting bulbs as light from the photo flash bulbs is produced not by electricity but by combustion of a metal foil, ignited by battery cell and as such if excise tariff item 32 (4) is at all applicable. (b) when the excise duty is charged cm pradip lamp works of patna at 2 pies per bulb, why for similar bulbs the petitioner should be charged with ad valorem duty under item 32 (4). The authority will consider the grounds for such discrepancy in regard to assessment of the products of the two concerns. (c) to consider whether the petitioner is entitled to any exemption as provided for in item 32 of the excise tariff if the said item is applicable. (d) to consider in case the petitioner's products are excisable under item 32, if the assessment might as well be under excise tariff item 32 (1) (i) and not under item 32 (4). I think these grounds mentioned above are cogent grounds for consideration by the excise authority and should be considered by him at the hearing to be given to the petitioner in respect of its objection dealt by annexure 'm'.

(10) In the result, the rule succeeds and is made absolute. The order, annexure m, is to be quashed by appropriate writs and the respondents should be restrained from giving effect to the same. Let a writ in the nature of mandamus issue forbearing the respondents from giving effect to the order being annexure m to the petition and also let a writ in the nature of certiorari issue quashing the said order. The case be sent back to the said authority for proper consideration of the petitioner's case in the light of the observations made above. I further direct that the provisional assessment at 16% ad valorem plus 10% basic excise duty shall continue without prejudice to the rights and contentions of the petitioner till the decision is arrived as stated above, but the authority is directed to complete the assessment within a period of two months from thursday the 5th october 1972 and pass appropriate orders as may be called for. There will be no order for costs in this rule.