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P. Vinayak Rao Vs. Asstt. Collector of Central Excise I.D.O. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 5954/72
Judge
Reported in1978(2)ELT67(AP)
ActsCentral Excise Act - Sections 35 and 36
AppellantP. Vinayak Rao
RespondentAsstt. Collector of Central Excise I.D.O.
DispositionPetition dismissed
Excerpt:
- .....premises treating them as having been installed by the same individual for the purpose of levy of excise duty. according to notification, central excise, no 41/65 dated 28.2.1965 of the government of india, ministry of finance, where not more than four powerlooms are installed, the excise duty payable is rs. 25/-per year and where more than four powerlooms are installed, the excise duty payable is rs. 75/- per year. the petitioner, in his individual capacity, is having four powerlooms. he is also a partner in m/s. p. balaji rao and sons in which he is having a 15 per cent share. it appears that m/s p. balaji rao and sons is having four powerlooms. if it is so, the petitioner is having 15 per cent share in those four powerlooms. a firm cannot have a separate legal entity apart from its.....
Judgment:

Ramashandra Raja, J.

1. This petition is for issue of a writ of certiorari of other appropriate writ or direction quashing the order dated 20.6.1972 of the Assistant Director of Central Excise, Hyderabad Division, Panjagutta. Under that order, the respondent confirmed the order of the Superintendent of Central Excise, Secunderabad, dated 17-4-1972 demanding duty on all the powerlooms installed by the petitioner and the firm M/s. P. Balaju Rao and Sons in the same premises treating them as having been installed by the same individual for the purpose of levy of excise duty. According to Notification, Central Excise, No 41/65 dated 28.2.1965 of the Government of India, Ministry of Finance, where not more than four powerlooms are installed, the excise duty payable is Rs. 25/-per year and where more than four powerlooms are installed, the excise duty payable is Rs. 75/- per year. The petitioner, in his individual capacity, is having four powerlooms. He is also a partner in M/s. P. Balaji Rao and Sons in which he is having a 15 per cent share. It appears that M/s P. Balaji Rao and Sons is having four powerlooms. If it is so, the petitioner is having 15 per cent share in those four powerlooms. A firm cannot have a separate legal entity apart from its partners constituting the firm. Sri K. Satyanand, learned Counsel for the petitioner, has, however, argued that M/s. P. Balaji Rao and Sons and the other four partners in the firm, namely, his wife and three sons including the petitioner are members of a joint Hindu family and therefore, the partnership property should be a jurisdic person. Therefore, the petitioner's interest in the four powerlooms of the partnership cannot be taken into consideration for purposes of levying additional duty on the four powerlooms which he is owning individually. In this connection, he places reliance on a Bench decision of this Court in Ram firishna Transport v. I.T. Commissioner (A.I.R. 1968, A.P. 34). But nothing said in that decision do in any way support the contention of the Learned Counsel.

2. As the petitioner, with his four separate powerlooms and together with his interest in the four powerlooms of the partnership, would be having more than four powerlooms so far, as his four powerlooms are concerned, he would be liable to pay excise duty on the basis that he owns more than four powerlooms. But the same thing cannot be said with regard to the four powerlooms owned by the firm. However, it is contended on behalf of the respondent that the firm is having not four power-looms as contended by the petitioner but it is having eight powerlooms. If that is so, the firm also would be liable to pay higher excise duty on the basis of having more than four powerlooms. That all depends on whether the firm is having four powerlooms as contended by the petitioner or eight powerlooms as contended by the respondent. With this observation, the writ petition is liable to be dismissed

3. Apart from,the merits, the petitioner also nas not exercised the remedy open to him under Section 35 and 36 of the Central Excises Act for filing an appeal and thereafter a revision to the Central Excise Collector and to the Central Excise Board, before involving the writ jurisdiction of this Court. On this ground also, the writ petitipn is liable to be dismissed. Accordingly, the writ petition is dismissed with costs. Advocate's fee Rs. 100/-


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