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Rice and Oil Mills Partnership Firm Vs. Dy. Superintendent of Central Excise - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtKerala High Court
Decided On
Case NumberOP Nos. 180, 180(A), 180(B) and 180(C) of 1959
Judge
Reported in1981(8)ELT59(Ker)
ActsCentral Excise Act, 1944 - Sections 37(2); Indian Partnership Act; Essential supplies (Temporary Powers) Act, 1946 - 7(2); General Clauses Act, 1897 - Sections 3(42); Constitution of India - Articles 19(1), 19(6) and 226; Central Excise Rules, 1944 - Rule 8
AppellantRice and Oil Mills Partnership Firm
RespondentDy. Superintendent of Central Excise
Appellant Advocate S. Narayanan Potti,; P. Karunakaran Nair and; N.K. Varke
Respondent Advocate C.M. Kuruville, Adv.
Cases ReferredA.R. Krishna Iyer v. State of Madras
Excerpt:
.....in repayment of the loan or advance made by the financial corporation and under a liability, the right of the corporation to invoke section 29 of the act accrues and it is open to the corporation to realise the entire loan advanced to the industrial concern not only from the properties of the industrial concern but also from the properties pledged or mortgaged b y the sureties for the loan advanced by the corporation. section 29 is a complete code by itself. liability of principal-debtor and surety is always joint and co-extensive. [n. narasimhaiah v karnataka state financial corporation, air 2004 kar 46 dissented from]. - 2. far from supporting notice on their merits, the learned counsel for the respondent contended, that at worst, such misinterpretation can only amount to an..........within the exception in article 19(6), must per se constitute an infringement of the fundamental right under article 19(l)(g), exts. p1 to p4 being outside the scope of the notifications are not saved by them, and this court would be acting properly in interfering under article 226, notwithstanding any alternative remedy which the petitioners may have under the act. the learned counsel drew my attention to the decision of the madras high court in a.r. krishna iyer v. state of madras-a.i.r. 1956 madras 480, which has only decided that where the constitutionality of a statute is impugned, the hierarchy of officers created by it are not competent to deal with the objection and that article 226 affords the proper remedy. the converse, that where the statutory provision is not impugned.....
Judgment:

S. Velu Pillai, J.

1. O.P. 180 of 1959 as filed.originally, was by four petitioners jointly, for quashing four notices, Exts. P1 to P4 issued to them separately, by the respondent, the Deputy Superintendent of Central Excise, Trichur M O.R. On objection being taken to the form of the petition, it was split into four petitions and numbered as O.Ps. 180, 180(A), 180(B), 180(C) of 1959, The petitioners are four firms, which carry on business, in different names, of extracting vegetable non-essential oil. As per item 23 in Schedule I of the Central Excises and Salt Act of 1944, referred to hereafter as the 'Act', a duty at the rate of Rs, 112/- per ton, is imposed on such oil cleared by a manufacturer. But Section 37(2)(xvii) of the Act has provided, that rules may be enacted by the Central Government so as to 'exempt any goods from the whole or any part of the duty imposed' by the Act. Accordingly, by Rule 8 of the Central Excise Rules, 1944 the Central Government is authorised to exempt from time to time by notification in the Official Gazette, any excisable goods from the whole or part of the duty leviable thereon. Three notifications have been made under this Rule, the first being dated November 3, 1956, and the other two being dated May 16, 1957, the combined effect of which was, to exempt the first seventy-five tons of oil completely from duty, and the next fifty tons partially, by levying a duty thereon at the lower rate of Rs. 70/- per ton only. The petitioner firms have some common partners, and presumably on this basis, the respondent issued Exts. P1 to P4, the effect of which was, that each of the firms would not be entitled to the full benefit of the exemptions, but that 'those who are partners in more than one firm' to quote the language of the affidavit, are 'entitled to get their share of the slab exemptions' only in one of the firms. In effect, these notices have decided, that the exemption for each firm must be assessed per capita between its partners, a partner being disentitled to claim the benefit of it in all the firms of which he is a partner, but only in one of them at his choice. The material part of the notification dated November 3, 1956, which alone is relevant, is as follows:-

'In exercise of the powers conferred by Rule 8 of the Central Excise Rules, 1944...the Central Government hereby exempts from the duty leviable thereon, a quantity not exceeding 125 tons of Vegetable Nonessential Oils cleared by any manufacturer for home consumption on or after....'

The operation of the two later notification, was only upon the aforesaid quantity of 125 tons. On the merits of Exts. P1 to P4, the question is, whether the respondent was right in treating the partners, as distinguished from the firm constituted by them, as manufacturer within the intendment of the noifications, for Exts. P1 to P4 have proceeded upon the footing, that each partner in the firm, is by himself a manufacturer. At the same time, the notices have not given full scope to this construction, by allowing to each of the partners of a firm, the benefit of the exemption on his account, but have limited it only to those partners who are common to more the one firm. This is neither here nor there.

2. Far from supporting notice on their merits, the learned counsel for the respondent contended, that at worst, such misinterpretation can only amount to an erroneous exercise of jurisdiction, and not to assumption of jurisdiction where it does not exist, and that therefore the petitioners must first resort to the remedy by way of appeal provided by the Act. In support of this, the learned counsel pointed out, that in law, a firm is not a corporation or a juristic person, and can only be taken to be a body or association of individuals called partners It is unnecessary to resolve this question for the disposal of these petitions, but in dealing with the above preliminary objection, the following' extract from the commentaries on Indian Partnership Act by Pollock and Mulla, second eeition, page 410, may be usefully made.

'In short, the firm is treated very much as if it were a corporation; it is an artificial or 'moral' person for business purposes; and in some systems of law this personality receives formal acknowledgement. 'In Scotland' in particular, 'a firm is a legal person distinct from the partners of whom it is composed'.'

And in Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd- A.I.R. 1948 P.C. 100, the Privy Council observed, that:

'the Indian Partnership Act goes further than the English Partership Act, 1890, in recognising that a firm may possess a personality distinct from the persons constituting it, the law in India in that respect being more in accordance with the law of Scotland than with that of England'.

In Anil kumar Samanta v. State, A.I.R. 1953 Calcutta 476, the question arose whether a firm can be deemed to be a 'person' within the scope of the explanation to Section 7(2) of the Essential supplies (Temporary Powers) Act, 1946, under which, if each partner was to be taken as a person, he may hold foodgrains up to ten maunds, and the two partners constituting a firm may lawfully hold up to twenty maunds, and thereby escape liability for the penal consequences, while if the firm was to be considered as a person, it would be liable for holding more than ten maunds. The definition of the word 'person' in Section 3(42) of General Clauses Act, 1897, as Including any 'association or body of individuals whether incorporated or not'' was adopted for holding, that 'a body of persons in general is included within the definition of 'persons'.' It is unnecessary to pursue this matter, for the plain meaning of the term 'manufacturer' in the notification, is a person who 'manufactures, and this applies with greater appropriateness, in the present context, to a firm engaged in manufacture, than to the individual partners composing it. If so, the notices, Exts. P1 to P4 fall outside the scope and provisions of the notification and must be held to be illegal.

3. It is not also necessary to consider whether respondent had acted without jurisdiction in issuing Ext. P1 to P4(, or merely committed an error in the exercise of it. The learned counsel for the petitioners has urged, that effect of denying the benefit of the exemption from duty, is to impose a larger levy on the manufacture of oil, and this constitutes a violation of the fundamental right of the petitioners to carry on their trades which is guaranteed to them by Article 19(l)(g) of the Constitution. When the infringement of a fundamental right is involved, there is the authority of the Supreme Court in Himmatlal Harilal Mehta v. State of Madhya Pradesh-A.I.R. 1954 S.C. 403, that the rule against interference under Article 226 in the face of alternative remedies provided by law, is not to be applied so rigorously. For this purpose, it does not make any difference, as contended for the respondent, that the notifications are not impugned as violative of the fundamental right, but that the notices issued, are alone the subject of challenge. If in applying the terms of the notification, the Authority acts outside its scope, such action cannot be deemed to be in pursuance of a law, which is saved by Article 19(6). It is plain, that a restriction which cannot be founded upon a law within the exception in Article 19(6), must per se constitute an infringement of the fundamental right under Article 19(l)(g), Exts. P1 to P4 being outside the scope of the notifications are not saved by them, and this court would be acting properly in interfering under Article 226, notwithstanding any alternative remedy which the petitioners may have under the Act. The learned counsel drew my attention to the decision of the Madras High Court in A.R. Krishna Iyer v. State of Madras-A.I.R. 1956 Madras 480, which has only decided that where the constitutionality of a statute is impugned, the hierarchy of officers created by it are not competent to deal with the objection and that Article 226 affords the proper remedy. The converse, that where the statutory provision is not impugned Article 226 could not be invoked, does not follow. In the case cited the point about the infringement of a fundamental right as here, was not taken and decided.

4. I therefore come to the conclusion, that notwithstanding the existence of an alternative remedy, Exts. P1 to P4, amount to an illegal levy falling outside the provisions of the concerned notifications, and violate the fundamental right of the petitioners under Article 19(l)(g). They are hereby quashed. These petitions are allowed in the above terms, but I make no order as to costs.


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