TaxTMI 
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1981 (2) TMI 230
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....age in Chingleput District. 3. The first defendant is the Assistant Collector of Central Excise, Vellore. The second defendant is the Superintendent of Central Excise, Kancheepuram and the third defendant is the Union of India, represented by the Secretary, Ministry of Finance, New Delhi. 4. The plaintiff had been manufacturing at its factory at Chettipuram village Chingleput district, asphalted roofing sheets (final product) for which the intermediate product is fibre mat. The factory has been in operation since 1969 and is working under l. 4 licence openly subject to excise supervision. 5. In the first stage of manufacture the plaintiff utilises the road picked waste paper, card board, craft paper, paper board, newsprint etc. which had been disposed of as waste. The plaintiff used to purchase these wastes from the contractors. These pickings so purchased are wetted and converted into pulp and thereafter made into sheets by rolling the same in the machine, then dried in sun and cut into requisite size. The sheet's normal size is 122 X 94 or 95 cm. and the weight thereof would be 1.6 kg. or 1.7 kg. At this stage the product is called 'fibre mat' but the authoritie....
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.... liberty to urge his contentions before the first defendant and the writ petition No. 6287 of 1975 relating to earlier order had become infructuous and the same may be dismissed. The first defendant issued a notice to show cause dated 13-2-1978, to the plaintiff which was served on the plaintiff at its factory at Chettipunyam village on 16-2-1978. In paragraph 4, it is stated that - "The Government of India have classified light roofing under Tariff item 17(4) as could be seen from exemption notification No. 25/76; dated 9-2-1976" and paragraph 5 thereof is as follows - "Messrs. Light Roofing Ltd., Chettipunyam village are therefore required to show cause as to why the dutiability nature of the light roofing sheets cleared from their factory prior to 9.2 1976 i.e. the date of issue of Notification No. 25/76, dated 9.2.76 should not be decided." 8. Item 17 of the Central Excises and Salt Act (Act I of 1944) as amended by the substitution of a new item therefore by the Finance Act, 1976, having effect from 1-3-1976. Since the present show cause notice relates only to goods, cleared from the factory prior to 9-2-1976, the item relevant to the period before 29-3-1976 applied t....
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....te the matter in court. There were no counter affidavits filed in the writ petition. It was for the first time by the show cause notice dated 5-8-1977, issued to the plaintiff by first defendant that the claim was made by the defendants that roofing sheets cleared prior to 9-2-1976 were liable to excise duty under Item 17(4). 10. The plaintiff is entitled to a determination by the Civil Courts as to whether asphalted roofing sheets were 'paper' falling under Item 17(4) prior to 9-2-1976 on evidence oral and documentary. The plaintiff is also entitled to a declaration that asphalted roofing sheets were not covered by Item 17(4) prior to 9-2-1976 and to a permanent injunction restraining the defendants from claiming, imposing, levying or collecting any excise duty on roofing sheets cleared prior to 9-2-1976. 11. The action of the first defendant in issuing the show cause notice dated 13-2-1978 is mala fide and without good faith or honesty. The entire matter was pending in this court in W.P. 6287 and 6858 of 1975, which were filed in September and November, 1975. The defendants never filed any counter affidavits at all and kept the threat of the remanded proceedings befor....
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....o to be quashed in toto. Clause (3) of Article 226 has no application to nullities such as orders violating natural justice. (b) The direction in the Appellate order to re-examine the applicability of item 17(2) to roofing sheets is null and void and without jurisdiction and must be set aside. (c) If a legal proceeding has been initiated by a show cause notice like the show cause notice dated 21-9-1974, to adjudicate liability of mats-intermediate product to duty under item 17(2)-then there would be a pending proceeding. If the final order therein is set aside then the authority can continue the pending proceeding on the basis that it was yet to be disposed of. In the instant case, there was no show cause notice to adjudicate liability of roofing sheets under item 17. The order dated 22-9-1975 was a direction to clear roofing sheets on payment of duty under item 17 for the future, that is, clearances made after 22-9-1975, when it is found that the order dated 22-9-1975 is a nullity, there is no proceeding pending which could be continued before the Assistant Collector. Hence the appellate direction is illegal and void and is liable to be quashed. (d) The show caus....
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....of being heard and also could not question the decision as it was an exemption order. If and when the question of liability is properly raised in a proceeding for recovering alleged short levies for any period before 9-2-1976, the assessee is entitled to question the liability on the basis that roofing sheets do not fall and never fell under item 17(4)/(2) and to have the question determined either in a suit or if permitted in proceedings under Article 226. (j) The show cause notice dated 5-8-1977 raises the matter of recovery of alleged short levy prior to 9-2-1976, for the first time. Under Rule 10 under which only such action can be taken, the demand can be only in respect of a period of one year immediately preceding 5-8-1977, i.e., for any duty due but not levied or short levied in respect of clearances on or after 6-8-1976. Starting from 9-2-1976 the exemption notification was in operation and there is no scope for any short levy determination on the basis of the show cause notice dated 5-8-1977. (k) The notice is vague as to period in para 5 by merely referring to duty on sheets cleared prior to 9-2-1976. The petitioner has reason to believe it is deliberately va....
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....ndition having about 55 to 60 per cent moisture. These mats are then spread in the open yard to dry under the sun. At this stage, the mats are very flexible and porus which allow quick easy absorption of asphalt at a later process of impregnation. The sun dried mats are trimmed and corrugated and dipped in asphalt solution. After the sun drying and before the boards are trimmed, the completion of the commodity 'paper' takes place. It is later that these boards are impregnated with asphalt solution and finally aluminium paint is coated over the surface and the product is called light roofing material. The name given by the plaintiff after rolling and cutting the paper pulp, as fibre mats is immaterial, irrelevant and not germane for the purposes of the Excise Act. They are paper board within the meaning of the Central Excise Tariff even after drying and more so when it is marketed as roofing material. It is liable to duty under item 17(3) or 17(4) of the Central Excise Tariff. On 24-3-1970, the Assistant Collector of Central Excise, Madras, after referring to a letter written by the plaintiff to the Range Officer, Central Excise, Kancheepuram, informed the plaintiff that the goods ....
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....Appellate authority the plaintiff contended that the intermediary product called by them fibrous mat or board is not at all goods and has no market by itself. The Appellate Authority observed that the process of manufacture and marketing of finished goods has not been gone into in detail and remanded the appeal. The plaintiff thereupon filed writ petition No. 6858 of 1975, against the appellate order dated 19/23-9-1975 in App. No. 319/75 before the Appellate Collector, Central Excise, Madras, for issue of writ of certiorarified Mandamus quashing the order. The plaintiff also filed a writ petition No. 6287 of 1975 against the order which was made on 22-9-1975, by the first defendant that the light roofing sheets themselves are paper boards within the meaning of the Central Excise Tariff and calling upon the plaintiff to pay duty after the clearance of the finished product. The order dated 22-9-1975, against which W.P. 6287 of 1975 was filed was made in pursuance of the appellate order dated 19-9-1975. The appellate order dated 19-9-1975 set aside the order dated 18-8-1975 and directed the first defendant to examine afresh the issue after giving proper opportunity to the plaintiff ....
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.... Central Government on investigation and the general representation of manufacturers and after considering the manufacturing process. It is decision taken by the Central Government and is within the scope of its powers. The allegation that the exemption notification is contrary to natural justice or that it is illegal or ultra vires are not correct. The allegation that the exemption notification should be with notice to manufacturers generally or to the plaintiff in particular is not correct. If the plaintiff wants to contend that the goods that it manufactures do not fall within the scope of the excise tariff the plaintiff must raise its contentions before the authority concerned. It is not correct to state that the show cause notice dated 5-8-1977 for the first time claimed that roofing sheets cleared prior to 9-2-1976 were liable to excise duty under item 17(4). The Civil court has no jurisdiction to entertain the suit since it relates to the matters of revenue and hence the suit is not maintainable. The decision on such classification of Excise Tariff and item under which any excisable goods fall is solely under the jurisdiction and power of the statutory authorities. The all....
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....ed to the declaration that the show cause notice dated 13-2-1978 is illegal? 4. Whether the claim by the defendant is in time? 5. To what relief the plaintiff is entitled ? W.P. 774 of 1980 : In the affidavit in support of the writ petition No. 774 of 1980, sworn to by one Mr. Santhanakrishnan, Chief Accountant of the plaintiff company, the allegations in the plaint are repeated. The reasons for filing of the writ petition are given in paragraphs 12, 13 and 14 of the affidavit in addition to the repetition of the allegations made in the plaint. The respondents in the writ petition filed a written statement in the above suit after a dealy of nearly 500 days contending inter alia that the Civil court has no jurisdiction to entertain the above suit which pertains the matters of revenue and that it was for the authorities under the Act to decide the various issues raised by the plaintiff. 15. At that time, when the suit was filed, Article 226 of the Constitution of India was amended by the 42nd amendment of the Constitution. Now, from 1-8-1979, the old Article 226 was restored by the 44th Amendment to the Constitution of India. The case for the plaintiff to file the ....
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....r clearly stated that the very question whether or not asphaltic roofing sheets fell under item 17 should be decided by the Assistant Collector after hearing the petitioner. (e) The show cause notice in para 5 requires the petitioner to show cause as to why the duty should not be demanded on the light roofing sheets cleared from the factory prior to 9-2-1976 i.e. from the date of the issue of the notification No. 25/76, dated 9-2-1976. (f) Right upto 19/23-9-1975 and even thereafter under the very order, the department was claiming duty under item 17 on the mats and not on the roofing sheets. The 10-10-1975 order directed an enquiry whether or not roofing sheets are liable under item 17 and the plaintiff has already made the submission that this direction was illegal and void. But in any event this direction does not justify a show cause notice for re-assessment on the basis of short levy for a prior period. (g) The show cause notice has pre determined the very question in issue whether at all roofing sheets fall under item 17 by the assertion in paragraph 4, that the Government of India have classified light roofing under Tariff Item No. 17(4) as could be seen fr....
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....that statement and the remanded enquiry for duty on mats, the Excise department cannot say that there was non-levy or short levy of duty on roofing sheets as to which there was never any claim by the department till the void order dated 22-9-1975. (l) The proposed re-assessment violates Article 226 of the Constitution of India, because it is without authority of law. The Act and Rule s do not permit re-assessment after 3 months or 6 months, as the case may be, vice Rule 10 of the Central Excises and Salt Act. The petitioner (the plaintiff in the above suit) therefore prays for the issue of a writ of certiorarified mandamus or any other appropriate writ quashing the proceedings of the second respondent dated 30-1-1978/13-2-1978 in C. No. V/17/30/6/76 T.2 and restraining the respondents (the defendants in the above suit) from levying or collecting the Central Excise duty on the finished product of the roofing sheets of the petitioner prior to 9-2-1976. 17. In the counter affidavit filed by the second respondent on behalf of the respondents the following averments are made: The second respondent adopts the written statement filed on behalf of the defendants in C. S. 199 o....
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....t basis. The allegation that the order of the Assistant Collector was quashed as a nullity and therefore the order dated 10-10-1975 is a nullity is denied. The reference to Article 226(3) has no relevance. The allegation that the appellate order to re-examine the applicability of the item 17 of the Central Excise Tariff is not null and void as the writ petition thereon has been dismissed. The allegation in paragraph 14(c) that the order dated 22-9-1975 calling upon the petitioner to clear the goods on payment of duty is not a nullity for the writ petition thereon has been dismissed The allegation in paragraph 14(e) that the show cause notice dated 13-2-1978 seeks to levy duty prior to 9-2-1976 and this is not justified is denied. There was no pre-determination of any question as is stated in paragraph 14(g). The allegation that the Assistant Collector and his authorities (whatever is meant by that) including the Government of India have disqualified themselves is incorrect. The performance of a statutory authority is not like a game or sport and no statutory authority by office can disqualify himself, except in cases when there is a personal interest in favour of the incumbent w....
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....g to the notification made by the second defendant bearing the date 30-1-1978 and signed on 3-2-1978, marked as Ex. P. I, directing the plaintiff to show cause why the excise duty should not be levied on the product of light roofing manufactured and cleared by the plaintiff prior to 9-2-1976, the details regarding the manufacture of light roofing material and the several attempts made by the second defendant to levy excise duty on the material will have to be set out for a better under, standing of the case. 21. A Commissioner was appointed as per the orders of this court in Appln. No. 208 of 1979 to inspect the factory premises of the plaintiff located in Chettipunniyam village, Chingleput district, and submit a report about the details of the manufacture of the light-roofing sheets. The resort of the Commissioner is marked as Ex. C. 1. The manufacturing process is set out in the Commissioner's report and in the several statements filed by the plaintiff before the second defendant in earlier proceedings. 22. Road pickings of waste paper forms the raw material, this includes various types of paper products like card board, newsprint etc. The paper is separated from plas....
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....dant informed the plaintiff that the mill boards manufactured by M/s. Light Roofings Ltd. at Chettipunniam village are assessable to Central Excise duty at the board stage itself under Tariff Item No. 17(3) applicable to mill boards. The manufacturer of mill board without the 'Central Excise licence is in contravention of the Central Excise Rules and the plaintiff was requested to apply for the Central excise licence. The plaintiff was also directed by the second defendant to make available the records to the Central Excise Range Officer at Kancheepuram to enable him to collect duty involved on the mill boards manufactured so far and cleared by the factory without payment of Central Excise duty. 25. As against this registered notice P. 4, the plaintiff filed the writ petition W.P. No. 1873 of 1970 on the file of this court for issue of a writ of certiorari calling for the records on the file of the second defendant in his O C. No 397/70, dated 20-2-1970, and for quashing the same. In the said writ petition the plaintiff herein contended that 'mill board' under the notification of the Central Excise Act means 'any unbleached homogeneous board having a thickness exceeding 0.50 ....
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....eference to the show cause notice Ex. P. 6 is marked as Ex. P. 7. The main contentions of the plaintiff in its objections are as follows :- 1. The term mill board under which the intermediary product is sought to be classified means hard board rolled with high pressure used for binding and the intermediary produce cannot be called a mill board; 2. The following differences in the meaning between mill board and straw board in several dictionaries were pointed out : Mill Board Straw Board Webster Third New International Dictionary Strong heavy paper board suitable for lining book covers and for panelling in furniture Board made of straw pulp and commonly used for packing and box making In Funk and Magnalis Standard dictionary Heavy paste board used for the covers of books, invitation press board Coarse board made of straw used for paper boxes and book covers Shorter Oxford English dictionary A kind of stout paste board rolled with high pressure, used for binding etc. as piece of this Coarse yellow mill board from straw pulp Compact edition of the Oxford English dictionary A kind of stout board made of pulp of old rope sacking, paper and other coarse m....
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....endant. Ex. P. 9 is the objection statement made by the plaintiff to the first defendant in respect of the above said notice of the first defendant marked as Ex. P. 8. In Ex. P. 9, the plaintiff submitted the following for the consideration of the first defendant. 1. All along the first defendant was trying to classify the unimpregnated mat as a mill board and now the first defendant is trying to classify the product as 'paper board' falling under sub-item (4) of Item No. 17, and this classification is also not correct. 2. The intermediary product is not known in the market either as paper or paper board and the same can have no value and use unless it is stiffened by impregnation with asphalt. Only after that process, it can be used as roofing material. Such a product can never be sold or purchased in the market as paper or paper board. 3. There is a specific technical and commercial meaning for the words 'paper board' as mentioned in the several dictionaries and the intermediary product cannot the termed as paper or paper board. 4. The definition of paper board occurring in Item 17(4) of the Central Excises and Salt Act, First Schedule, relates only to pro....
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....arked as Ex. P. 13. The operative portion of the order of the Appellate Collector is as follows :- "The appellants contend that the fibrous mat or board is not at all goods and has got no market by itself. It appears that this issue of the process of manufacture and marketing of finished goods had not been gone into in detail by the original authority. I hereby direct that the Assistant Collector will re-examine the issue afresh and decide the case after giving proper opportunity to the appellants to explain their view point." 30. Ex. P. 14 is the letter of the second defendant to the plaintiff stating that the intermediary product, viz. paper board manufactured in the factory of the plaintiff is allowed to be cleared without payment of duty on provisional basis pending decision on the appeal by the plaintiff. However, the plaintiff was informed that the finished product, viz. Light roofing sheets is to be cleared from the factory only on payment of Central Excise duty leviable under Tariff Item No. 17 (4) of the Central Excise Tariff. 31. While the appeal before the Appellate Collector, Central Excise, was pending, the plaintiff also filed a writ petition No. 6287 of ....
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....t position of light roofing is that they stand exempted under Notification No. 2/76 dated 9-2-1976, read with the Notification No. 72/76, dated 16-3-1976. The Assistant Collector from the abovesaid notification had taken note of the fact that the Government of India have classified the light roofing under Tariff Item No. 17(4) as could be seen from exemption Notification No. 25/76, dated 9-2-1976 and consequent on the amendment to the Finance Bill and the change of tariff description of the paper it was classifiable under Tariff Item No. 17(2) and this also stand exempted vide Notification No. 72/76, dated 16-3-1976. Asphaltic roofing sheets manufactured by M/s. Light Roofing Ltd. are exempted and this exemption under Rule 8 of the Central Excise Rules, 1944 is effective from 9-2-1976 that is from the date of issue of Notification No. 25/76, dated 9-2-1976. The plaintiff was therefore required to show cause as to why the duty should not be demanded on the light roofing sheets cleared from the factory prior to 9-2-1976, that is from the date of issue of Notification No. 25/76, dated 9-2-1976. This was followed by the revised show cause notice dated 30-1-1978 in C. No. V/17/30/6/76 ....
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....ty under Tariff Item 17, the above writ petition has become infructuous and has to be dismissed." Hence, on the strength of the abovesaid two memos, viz. Ex. P. 2 and P. 3, both the writ petitions were dismissed. Now we will have to consider whether the plaintiff is entitled to a declaration that the show cause notice dated 30-1-1978 marked as Ex. P. 1 is illegal and void for a consequential permanent injunction restraining the defendants from levying excise duty on the finished product of light roofing produced by the plaintiff. 33. Issue No. 1 : Whether the plaintiff is entitled to the declaration that asphalted roofing sheets were not covered by Tariff Item No. 17(4) ? Sec. 3 of the Central Excises and Salt Act, 1944, provides for the levy of duty and collection of the same. Section 3 reads as follows :- "3. (1) There shall be levied and collected in such manner as may be prescribed duties of excise or all excisable goods other than salt which are produced or manufactured in India and a duty on salt manufactured in, or imported by land into, any part of India as, and at the rates, set forth in the First Schedule. (1A) The provisions of sub-sec. (1) shall apply in ....
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....sorts (including paste board, mill board straw board, card board, and corrugated board) in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power- (1) Uncoated and coated printing and writing paper (other than poster paper) Twenty five per cent ad valorem (2) Paper board and all other kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating, corrugation, creping and design printing), not elsewhere specified." Forty per cent ad valorem. The article in question, viz. light roofing is made from street pickings of waste paper, which is subjected to a process and finally immersed into asphalt or bitumen, which is a petroleum product. The process of manufacture is set out in the Commissioner's report the details of which are extracted above. The material is only paper with about 50 per cent of bitumen. An attempt was made by the Central Excise authorities to bring the intermediary product before immersion into bitumen as mill board and accordingly a show cause notice was issued as per Ex. P. 4, asking the plaintiff to show cause as to why the intermediary product sho....
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....far as the final product is concerned, viz. the light roofing sheets, the second defendant issued an order as per Ex. P. 14, dated 22-9-1975 that the finished product is to be cleared from the factory only on payment of Central Excise duty leviable under Tariff Item No. 17(4) of the Central Excise Tariff. As against this order, the plaintiff filed a writ petition No. 6287 of 1975 for a writ of certiorarified mandamus declaring the above order as void and for quashing the same. 35. Thus from the abovesaid proceedings it is seen that the Central Excise authorities were not in a position to make up their mind whether to tax the intermediary product under Tariff Item No. 17(2) or the final product of 1ight roofing materiel under Tariff Item No. 17(4). The above said show cause notices only resulted in further proceedings by way of appeal before the Appellate Collector and by way of writ petitions before this Court. 36. In the show cause notice Ex. P. 18, certain proceedings of the Tariff Conference relating to the classification of light roofing is found. It is stated in Ex. P. 18 that in the Fourth Central Excise Tariff Conference held at Bombay on the 19th and 20th May, 1....
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....e plaintiff that the decision of the authorities that the asphaltic roofing sheets falling under Tariff Item No. 17(2) was not taken after due notice to the persons concerned. It is not known whether any decision was arrived at by any duly constituted authority to the effect that the asphaltic roofing material come under Tariff Item No. 17(2) after observing the due formalities. But from the show cause notice, Ex. P. 18, it is seen that the excisability of asphaltic roofing material which was the subject matter of discussion in the Fourth and Fifth Central Excise Conferences, was arrived at and that the final product would be classifiable under Tariff Item No. 17(4) and the intermediary product cannot be classified under Item No. 17(4). 39. The authorities under the Central Excises and Salt Act have the power to classify the excisable items and in view of the fact that the matter had been discussed in Central Excise Conference and a decision was arrived at we have to hold, in the absence of material contra, that due procedure had been observed and a decision had been arrived at with reference to the excisability of the ultimate product, viz. light roofing material. Since mate....
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....spondent dated 30-1-1978/13-2-1978 in C. No. V/17/30/6/76 T. 2 ? It is seen that the earlier show cause notice viz., Ex. P. 6 dated 7-9-1972 and Ex. P. 8, dated 21-9-1974 were issued only in respect of intermediary product in the process of manufacturing asphaltic roofing sheets viz. fibrous mat. The Central Excise authorities were vacillating in classifying the intermediary product and at one time as per Ex. P. 6 they sought to classify the intermediate product as a mill board. The second show cause notice, viz. Ex. P. 8 sought to classify the intermediary product as a paper board falling under sub-item (4) of Item 17 to the First Schedule of the Central Excise Tariff. The Central Excise duty was sought to be levied on the finished product of asphaltic light roofing sheets only for the first time as per Ex. P. 12, dated 26-8-1975, by which the second defendant seeks to levy excise duty on the finished product at one per cent under Tariff item No. 68 independent of the assessment of paper board. The order Ex. P. 14, dated 22-9-1975 for the first time mentions that the duty is leviable in respect of the finished product under Tariff Item No. 17(4). This order is not preceded by any....
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....hemist or whether any decision was taken in the Central Excise Tariff Conferences held in 1975 and 1976 and whether the end product, viz. the asphaltic roofing material is liable to excise duty under Tariff Item No. 17(4). But as per Ex. P. 18, the third show cause notice with reference to the levy of excise duty, an inference is sought to be drawn that the finished product is excisable under Tariff Item No. 17(4) on the strength of the Notification No. 25/76, dated 9-2-1976, by which the Government exempted the levy of duty in respect of the light roofing material. Apart from Notification No. 25/76, dated 9-2-1976 exempting the light roofing material from the levy of excise duty no material is placed before this court to show whether the Central Excise authorities have applied their mind with reference to the classification of the finished product of light roofing material and arrived at a decision after issuing due show cause notice to the persons affected. However, relying upon the exemption Notification No. 25/76 an inference is sought to be made that the finished product was excisable under Tariff Item No. 17(2) added as per Act 66 of 1976 and on that basis the show cause noti....
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.... case, allow." The period of three months prescribed under Rule 10(1) is now enhanced to six months. Hence as per the Rule l0, the department can claim excise duty on light roofing material only in respect of the roofing sheets produced during six months prior to the show cause notice, Ex. P. 18. 43. In order to meet this argument the defendants contend that the show cause notice was issued under Rule 10-A of the Central Excise Rules in respect of which the period of limitation is five years. Rule 10-A of the Central Excise Rules reads as follows - "10.A. Residuary powers for recovery of sums due to Government. - (1) Where these Rule s do not make any specific provision for the collection any duty, or of any deficiency in duty if the duty has for any reason been short levied, or of any other sum of any kind payable to the Central Government under the Act or these Rule s, the proper officer may serve a notice on the person from whom such duty, deficiency in duty or sum is recoverable requiring him to show cause to the Assistant Collector of Central Excise why he should not pay the amount specified in the notice. (2) The Assistant Collector of Central Excise, after cons....
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....ing with the validity of the Rule as made under the Madras Entertainment Tax Act (X of 1939), where in the main Act there was no provision for assessing the escaped income but a provision has been made only in the Rule s. The learned Judge held that where the main enactment is silent on the question of levy of escaped assessment, the Rule s made under the Act cannot extend the charging power. Following the decision in Haji P.A. Kareem v. Dy. Commercial Tax Officer, Mettupalayam, 1966-18 STC 370, referred to above we hold that Rule 12 in so far as it seeks to extend the charging power under Section 3 of the Act is invalid and without jurisdiction. " In the case, reported in M/s. Agarwal Brothers, Madras 1 v. Union of India, 1972-2-MLJ 476 Ramanujam J. following the reasoning in the above cited case held that Rule 10-A of the Central Excise Rules could not be invoked. The fact that Rule s 10 and 10-A of the Central Excise Rules were held to be ultra vires is also referred to with approval in the case reported in Ramaliniga Choodambikai Mills Ltd. v. The Government of India and others, AIR 1975 Mad. 217. On the strength of the above decisions the plaintiffs contend that the levy of e....
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....t, we think that a quasi-judicial proceedings, in the circumstances of such a case, could take place under an implied power. It is well established Rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied. See Craies on Statute Law, 5th Edition, page 105." This case cannot be an authority for the proposition that Rule 10-A is valid. The question whether Rule 10-A which relates only with collection can be made use offer the as ascertainment of deficiency in duty in that case and the court construing the provisions of Rule 10-A held that the power to do something essential for the proper and effective performance of the collection of duty viz. ascertainment of the sum can be done by the Excise authorities. The question whether there can be a valid Rule just as the Rule 10-A, in the absence of legislative provision in the Act was not considered by the Supreme Court in the above decision. Hence this case will not lend support to the case of the defendants. Hence Rule 10-A cannot be invoked to levy excise duty in respect of the light roofing material manufactured prior to 9-2-....
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....ar kind of suits, namely, suits for recovery of wages in certain eventualities. The obvious intention was that a poor employee was not to be driven to file suit for the payment of the deficit of his wages but that he could avail himself of the machinery provided by the Act to get quick relief. It does not in terms bar the employer from instituting a suit when his claim is that he has been called upon to pay wages and compensation to persons who are not governed by the notification under the Minimum Wages Act. On an analysis of the provisions of the Act we find (l ) Suits of the nature to be found in this case are not expressly barred by the Act, (2) There is no provision for appeal or revision from the direction of the authority given under Section 20 (3) of the Act; and (3) The authority acting under Section 20(3) might levy a penalty which might he as high as ten times the alleged deficit of payment which again is not subject to any further scrutiny by any higher authority. In view of our findings as above, as also the fact that the authority in this case dis-regarded the provision as to hearing and inquiry contained in the Act for all practical purposes, we hold that the civil c....
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....f the proposed assessment and also taking into consideration that there is no express bar of the jurisdiction of the civil court in the Central Excises and Salt Act, 1944, we will have to come to the conclusion that the objection of the defendants with regard to the jurisdiction of the court to entertain the suit will have to be negatived. 51. The next question raised by the defendants is that as per Ex. P. 1, only a show cause notice had been issued and the plaintiff is at liberty to file his objections end that the second defendant after considering the objections will decide the leviability of excise duty on the finished product manufactured prior to 9-2-1976, and there are hierarchy of authorities to whom the plaintiff can approach for redres against any decision that may be remanded and hence the writ at the stage of show cause notice will not lie. In reply to this contention, the case of the plaintiff is that the show cause notice without jurisdiction or on a claim barred by limitation can be quashed by a writ of certiorari and the writ of mandamus can also be issued in respect of the same. In support of this contention the plaintiff placed reliance on the following dec....
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....ded by the Income-tax Act cannot always be a sufficient reason for refusing quick relief in a fit and proper case." 54. In the case reported in Rajaram Varma v. State of U.P. and others, AIR 1968 All. 369, Full Bench of the Allahabad High Court observed as follows :- "It is true that if a statute creates a new right or a new obligation and also specifies the particular mode in which the same is to be enforced, the jurisdiction of ordinary courts is by implication excluded and the enforcement of the right or the obligation has to be done only by recourse to the procedure laid down by that statute. But where a statute is not of that kind and a right or obligation does not owe its existence to the statute, and all that the statute does is that it provides a special procedural machinery for its enforcement, there is no justification for inferring a necessarily implied exclusion of the ordinary, usual, and well recognised remedies." 55. In the case reported in Union of India v. A.V. Narasimhalu, 1969-2-SCC 658, in which the Supreme Court observed as follows :- "But the exclusion of the jurisdiction of the civil court to entertain a suit does not exclude the jurisdiction of....
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....urisdictional fact which would enable the taxing authorities to assume jurisdiction and bring to tax certain articles, then it cannot be said that no Rule at all under Art, 226 can be issued." Relying on the principles laid down in the above decisions and in view of the findings that the show cause notice is potently barred by limitation this court has got the power to issue a writ of certiorarified mandamus to quash the illegal notice. 59. On behalf of the defendants reliance is sought to be placed on the decision of the Privy Council reported in the Secretary of State for India, rep. by the Collector of South Arcot v. Mask and Co., ILR 1940 Mad. 599, where their Lordships of the Privy Council held that the jurisdiction of civil court is excluded in respect of an assessment made by the Assistant Collector on the duty-leviable on imported goods under the Sea Customs Act since the right of revision is conferred as per the provisions of the Act. But the Privy Council in the course of judgment observed that - "The determination of this question must rest on the terms of the particular statute which is under consideration, and decisions on other statutory provisions are not of ....