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A'bad Cotton Mfg. Co. Ltd. etc. Vs. Union of India and Ors. (13.04.1977 - GUJHC) - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Applns. Nos. 1721, 1780 to 1786, 1791 to 1794, 1800 to 1802, 1806 to 1811, 1813, 1841,
Judge
Reported in(1977)1GLR714
ActsConstitution of India - Articles 31(1), 226 and 226(3); Constitution (Forty Second) (Amendment) Act, 1976 - Sections 58(2); Central Excises and Salt Act, 1944 - Sections 35; Central Excise and Salt Rule - Rules 2(22) and 233
AppellantA'bad Cotton Mfg. Co. Ltd. etc.
RespondentUnion of India and Ors.
Appellant Advocate S.J. Sorabji,; K.H. Kaji,; V.B. Patel,;
Respondent Advocate K.G. Vakharia, Adv.; Anil B. Divan, Adv.
Excerpt:
excise - abatement of petition - articles 31 and 226 of constitution of india, section 58 of constitution (forty second) (amendment) act, 1976, section 35 of central excise and salt act, 1944 and rules 2 and 233 of central excise and salt rule - petition questioning whether excise duty on yarn charged at spindle stage or at stage of cones, bobbins and beams - respondent contended that petition was premature as petitioners not exhausted remedies available under act - question referred to larger bench - whether petition abated - additional excise duty sought to be recovered from petitioners - prima facie case of evasion of fundamental right made out - petitioners entitled to approach high court - held, petitions do not abate as contended by respondent authorities. - - or (c) for the.....j.b. mehta, j. 1. this group of petitions is referred to this bench to decide the question whether it abates on the grounds mentioned in the affidavit of the respondents. these petitions were filed by the petitioner-mill companies which are cotton textile units manufacturing blended yarn which became dutiable for the first time under tariff item 18-e which was added on march 16, 1972 in the central excises and salt act, 1,944 (hereinafter referred to as 'the act'). it is the case of the petitioners that blended yarn was coated with sizing materials to impart strength to the yarn in the weaving process in all these composite mills and in that process the weight of the blended yarn increased by some 12 to 14 per cent. it is the case of the petitioners, that blended yarn remained blended.....
Judgment:

J.B. Mehta, J.

1. This group of petitions is referred to this Bench to decide the question whether it abates on the grounds mentioned in the affidavit of the respondents. These petitions were filed by the petitioner-mill companies which are cotton textile units manufacturing blended yarn which became dutiable for the first time under Tariff Item 18-E which was added on March 16, 1972 in the Central Excises and Salt Act, 1,944 (hereinafter referred to as 'the Act'). It is the case of the petitioners that blended yarn was coated with sizing materials to impart strength to the yarn in the weaving process in all these composite mills and in that process the weight of the blended yarn increased by some 12 to 14 per cent. It is the case of the petitioners, that blended yarn remained blended yarn even after the sizing process. The excise duty was paid on the sizing materials. In all these mills the duty was charged by the excise authorities under Tariff Item 18-E on weight basis per kilogram of unsized yarn, that is to say, at the spindle point. However, by the Trade Notice issued by the Deputy Collector of Central Excise, No. 195/76, dated August 9, 1976, a change of basis had been made. The said Trade Notice had been communicated by the Mill owners' Association to these petitioner mills on August 14, 1976 by Annexure 'A' as under:

'A question has arisen whether Central excise duty on yarn, all sorts (N. E. S.) falling under Tariff Item No. 18-E of the Central Excise Tariff, manufactured in a composite mill and used in the weaving of fabrics in the same mill should be charged at spindle stage or at the stage of cones, bobbins and beams etc.

2. It is decided that the accounting of the yarn in R. G. 1 Register may be made at the spindle point, but for E. B. 4 Register or assessment of duty, the weight of the yarn at the stage of cones, bobbins and beams etc. should be taken into account.

3. All trade associations, chambers of commerce and the members of the Regional Advisory Committee are requested to bring this to the notice of their members/manufacturers.'

Thereafter the Superintendent of Excise by the letter at Annexure 'B' dated August 28, 19,76 informed all the units on this question of assessment of duty on yarn used in composite textile mills for the manufacture of fabrics, the following instructions:

'Your attention is invited to M. P. Trade Notice No. 195/76 (Yarn NES No. 2/76) dated 9-8-76.

2. As directed in para 2 of the said trade notice, the accounting of the yarn in R. G. 1 Register may be made at the spindle point but for E. B. 4 Register or assessment of duty the weight of the yarn at the stage of cone, bobbins and beams etc. should be taken into account.

3. You are therefore requested to get authentication in E. B. 4 Register immediately and maintain the same as per the above trade notice.'

The Superintendent also addressed a further communication finally at Annexure 'F' to the petitioner-mills on the subject of assessment of this NES yarn as under:

'You are already directed by me that for purpose of assessment of the yarn in question the weight of the yarn should be taken at cones, beams, bobbins stage etc. but so far I find that you pay duty on the yarn in question at spindle stage. So please adopt the procedure for payment of duty by the stages mentioned above when the yarn is actually taken for use.

You are further requested to furnish this office the quantity of sizing materials used for sizing the yarn for the following period:

4-8-76 to 31-8-76, Sept. 76.

You are hereby instructed to furnish the particulars of sizing materials used every month. Please treat this as most urgent.'

2. It is the case of the petitioners that since the issue of the licence by the excise authorities for the manufacture of this polyester blended textiles, the petitioners had been consistently assessed to excise duty on yarn at spindle point and they maintained personal ledger account as provided by the Act and the Rules under the relevant self-assessment procedure. This Trade Notice is challenged as totally null and void and of no legal effect in these petitions where a further relief is claimed restraining the respondents-authorities from collecting or' debiting any excise duty from the petitioners or in their personal ledger account on the basis of the weight of yarn manufactured by the petitioners after sizing instead of at the spindle point, or from enforcing the letter at Annexure 'F' dated October 19, 1976.

3. The relevant Tariff Item 18-E runs as under:

'18-E. Yarn, All Sorts. N. E S.

Yarn, all sorts, not elsewhere specified, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power.

Per Kg. of yarn.

(1) ...... ......

(2) Yarn containing partly synthetic staple fibre of non-cellulosic origin, other than acrylic fibre, and partly any other fibre or fibres (excluding wool) if the non-cellulosic fibre content, by weight.

of such yarn is

(i) 50 per cent or more 24-00

(ii) less than 50 per cent but

not less than 25 per cent 19-00

(iii) less than 25 per cent but

more than 10 per cent. 16-00

(iv) 10 per cent or less 12-00.'

The petitioners' case is that as this blended yarn remained yarn even after sizing process, they were paying excise duty on the basis of the weight per kilogram under Tariff Item 118-E (2) (ii) and this basis was sought to be changed because of the aforesaid illegal ultra vires trade notice issued by the Deputy Collector. The petitioners had pointed out that even in the context of cotton yarn under Tariff Entry 18-A the contrast was eloquent. Tariff Item 18-A runs as under: -

'Cotton twist, yarn and thread, all sorts containing not less than ninety per cent by weight of cotton calculated on the total fibre content, whether sized or unsized, in all forms including skeins, hanks, cops, cones, bobbins, pins, spools, reels, cheeses, balls or on warp beams, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power. 'Tariff sub-item 18-A (1B) proviso stated as follows:

'The duty on sized twist, yarn or thread shall be charged on the basis of its weight before sizing.'

It was also pointed out that even under the definition of the term 'manufacture' in S. 2(f)(iv) it was provided as under:

'In relation to goods comprised in item No.18-A of the first Schedule, includes, sizing, beaming, warping, wrapping, winding or relating, or any one or more of these processes, or the conversion of any form of the said goods into another form as such goods.

It was, therefore, urged by the petitioners that where the Legislature intended this artificial meaning by inclusion of subsequent processes after the yarn had come into existence, the relevant definition of 'manufacture' under S. 2(f)(iv) had been amended as in Item 18-A but no such artificial meaning was attracted for the Item 18-E and, therefore, the Legislative intention was obvious that Item 18-E would attract duty only at the stage of manufacture of yarn and subsequent processes carried out would not result in the duty being leviable on the weight of the said yarn at the subsequent stage. Therefore, the aforesaid Trade Notice which sought to change the entire basis of assessment was challenged as illegal and without jurisdiction as it ran counter to, the Tariff Item 18-E and to the fundamental principles of levy of excise on manufacture of excisable goods only. Though in the petitions it was stated that only such change of basis was made in these mills falling under the Baroda Collect orate and at Calcutta. at other places the old system continued, at the time of hearing Mr. Vakharia had stated that throughout the country the authorities were insisting on this changed basis for levy of excise on this blended yarn. The petitioners had also urged that the impugned Trade Notice and the action of the authorities was without authority of law and, therefore, violated Art. 31(1) of the Constitution. The petitioners had through their Association and the federation gone up to the Central Board without any result and, therefore, this petition had been filed.

4. In the affidavit-in-reply this levy was sought to be supported as being on the true interpretation of Tariff Item 18-E. It was the plea of the authorities that the yam manufactured at the spindle stage was not completely manufactured unless it was wound on cones, bobbins and beams as per their requirements and that it was so wound only after the process of sizing was carried out on such warp yarn Various provisions of the Act and the Rules had been relied upon and it was urged that the issue of unsized yarn for sizing could not be said to be the removal of yarn for use in the manufacture of any other commodity. The yarn even after sizing continued to be yarn and, therefore, the point of removal for payment of duty would be the point at which the sized yarn was removed for the manufacture of fabrics which was another excisable commodity. It was denied that the yarn produced or manufactured by the petitioner at the spindle stage was sold or was capable of being used or sold in the market. It was stated to be not completely manufactured unless it was wound on cones, bobbins and beams as per their requirements and it was so wound only after the process of sizing was carried out on such warp yarn.

5. In the further affidavit this Notice was said to be determining general principles as to how the was to be levied under Tariff Item 8-E and it was contended that the said general principles in the Trade Notice were not binding on the assessing authority. It was for the assessing authority to determine the question of assessment and

__________________________________________________________________

Original Art. 226

___________________________________________________________________

226(1) Notwithstanding anything in Art. 32. every High Court shall have power, throughout the territories in relation to, which it exercises jurisdiction, to issue to -any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(1A) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(2) The power conferred on a High Court by Clause (1) or Clause (1A) shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Art. 32.'while assessing, the assessing authority may follow the guidelines given in the Trade Notice. Therefore, the Trade Notice did not give any cause of action but only the assessment would give the cause of action. It was contended, therefore, that assuming that the letter Annexure 'F' dated October 19. 1976 did not contain any decision, the petition was premature and the petitioners must exhaust the remedy available to, them before the, assessing authority. It was, therefore, contended that the petitioner having not exhausted the remedies available under the Act, there was a bar to entertain and decide this petition under Art. 226(3) Trade and, therefore, the petition abated under these. 58 (2) of the Constitution (Forty duty second Amendment) Act, 1976. It is in no view of this objection that this reference has come up to this larger Bench.

6. At the outset we would set out the provision of Art. 226 as it stood before the amendment -and after the present amendment so far as these relevant clauses are concerned--

________________________________________________________________________________Amended Art. 226 ________________________________________________________________________________

226 (l). Notwithstanding anything in Art. 32 but subject to the provisions of Art. 131A and Art. 226A, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor, and certiorari, or any of them,

(a) For the enforcement of any of the rights conferred by the provisions of Part III; or

(b) For the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made there under; or

(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub-clause (b) where such illegality has resulted in substantial failure of justice.

____________________________________________________________________________________________________________________Original Article 226 Amended Art. 226____________________________________________________________________________________________________________________(2) The power conferred by Clause (1) to issuedirections, orders or writs to any Government,authority or person may also be exercised by anyHigh Court exercising jurisdiction in relation tothe territories within which the cause of action,wholly or in part, arises for the exercise of suchpower, notwithstanding that the seat of suchGovernment or authority or the residence of suchperson is not within those territories.(3) No petition for the redress of any injuryreferred to in sub-clause (b) or subclause (c) of Clause (1)shall be entertained if any other remedy for suchredress is provided for by or under any other lawfor the time being in forcexx xx'___________________________________________________________________________________________________________________

Section 58 (1) and (2) of the Forty-second Amendment Act ran as under:

'58. (1) Notwithstanding anything contained in the Constitution, every petition made under Art. 226 of the Constitution before the appointed day and pending before any High Court immediately before that day (such petition being referred to in this section as a pending petition) and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition before that day shall be dealt with in accordance with the provisions of Art. 226 as substituted by S. 38.

(2) In particular, and without prejudice to the generality of the provisions of sub-s. (1), every pending petition before ,a High Court which would not have been admitted by the High Court under the provisions of Art. 226 as substituted by S. 38 if such petition had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition shall stand vacated:

xx xx xx'

Therefore, the new amendment having been given retrospective effect so far as pending proceedings are concerned because of S. 58 (2), every pending petition before the High Court which would not have been admitted under the provisions of Art. 226 as now substituted by S. 38 of the Forty-Second Amendment Act if such petition had been made -after the appointed day, that is, 1st February 1977,must abate. Therefore, the abatement question can be decided only by considering the short question whether under the amended Art. 226 the present petitions could have been admitted by this Court.

7. Mr. Sorabji vehemently argued that the present group of petitions could have been admitted even under the amended Art. 226 for two reasons

(1) Because the petitions were for enforcement of the fundamental rights conferred on these mill companies under Art. 31(1) and to such petitions for enforcement of fundamental rights there would be no. bar of Art. 226(3) attracted by consideration of existence of any other alternative remedy; and

(2) That the, Trade Notice in question being ultra vires the Act, there was no , appeal provided under S. 35 of the Act against the decision and the action of the authorities changing the entire basis of levy of excise under Tariff Item 18-E and, therefore, when such a tax was sought to be levied without any authority of law in violation of Art. 265 and in plain violation of the provisions of the Act resulting in such substantial injuries to the tune of lakhs of rupees every month by such an ultra vires action of the authorities, there was a substantial injury for redress of which the petitioners could not have filed any appeal and they were not bound to exhaust any alternative remedy. Such an action was without any hearing in plain violation of the principles of natural justice and, therefore, the petition being for redress of injuries as a result of statutory contraventions or illegalities in statutory proceedings under Cls. (b) and (c) of Article 226(1), where there was substantial injury and substantial failure of justice by such ultra vires action of the authorities, there was no question of the fetter under Art. 226(3) being attracted.'

8. The whole scheme of the amendment will have to be interpreted in the light of the situation which was intended to be remedied and we would have to put that interpretation which would advance the object of the Parliament and would not frustrate the same. We would, however, have to determine the question on the settled legal principles of construction of such constitutional provisions especially in the context of such a writ jurisdiction by way of judicial review as a constitutional remedy of public law, and the language would have to be strictly construed so as not to whittle down this extraordinary writ jurisdiction except to the extent that the Parliament has curtailed this jurisdiction. Even the statement of objects and reasons for these two relevant CIS. 38 and 58 while amending Art. 226 to a significant extent states as under:

'While the High Courts continue to enjoy their power to enforce fundamental rights, they cannot hereafter exercise jurisdiction in every case where there is an invasion of a legal right which, so far, they have been doing by virtue of the jurisdiction conferred by the expression 'for any other purpose, which is being deleted now. Instead, the High Courts are being vested with a restricted jurisdiction.

They can exercise jurisdiction in (a) cases where there is a contravention of a statutory provision causing substantial injury to, the petitioner, and (b) cases where there is an illegality resulting in substantial failure of justice. In either case. the petitioner has to satisfy the Court that he has no other remedy:

Provision is being made under Clause 38 that the High Courts shall not issue an interim order ordinarily except upon notice to the other side and after giving the other side an opportunity to be heard. An exception is made in cases where the loss or damage to the petitioner cannot be compensated in money. Notwithstanding this exception, the High Courts shall have no power to grant an interim order in any case where the effect of such order is to delay any inquiry into a matter of public importance or any investigation or inquiry into an offence punishable with imprisonment or any action for the execution of any work/project of public utility, etc.

Provision is also being made in Clause 58 to cover petitions pending in the High Courts.'

The jurisdiction under Art. 226(1) before the amendment was very wide as this writ jurisdiction could be exercised not only for enforcement of fundamental rights but for 'other purposes' and even where there was existence of other remedies it was only as a matter of self restraint that this extraordinary jurisdiction was not exercised when adequate alternative relief existed by recourse to ordinary remedies created by the law. In Rohtas Industries v. Its Union : (1976)ILLJ274SC it was in terms held

'The expansive and extraordinary power of the High Courts under Art. 226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual -and be available for any (other) purpose, even one for which another remedy may exist. The amendment to. Art. 226 in 19,63 inserting Art. 226(1-A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to 'the residence of such person. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to, cut back on or liquidate that power may cast a peril to human rights.'

That is why even an arbitrator appointed under S. 10-A of the Industrial Disputes Act. 19,47 was held to be a part of the methodology of the sovereign's dispensation of justice, so as to be treated as a statutory tribunal amenable to judicial review. English precedents were adopted not on the ground that they were binding but because the jurisprudence of judicial review in this branch was found to be substantially common for Indian and Anglo-American systems and so Halsbury's passage explaining patent error of law on the record had been adopted as a sound statement, of law. The wider emergence of common canons of judicial review was treated as a welcome trend towards a one world public law.

9. Similarly in Ahmedabad Mfg. & Calico Ptg. Co. v. Ramtahel : [1971]82ITR376(SC) , it was pointed out that in some High Courts Art 227 was utilized for the purpose of securing relief by way of writs ox directions in the nature of writs more accurately contemplated by Art. 226 of the Constitution, (Ramesh v. Gendalal AIR 1966 SC 144), and in some this Article was invoked for getting orders of tribunals revised just as S. 115 of the Code of Civil Procedure was utilized for revision of orders of subordinate Courts: (Surendra Nath v. Stiphen Court Ltd., : [1966]3SCR458 . Therefore, the use of Art. 227 as a substitute for Art. 226 for seeking a direction in the nature of a writ for quashing the orders of these subordinate tribunals was not approved and it was in terms held that for seeking relief by way of writs or directions in the nature of writs Art. 226 was expressly and in precise language designed. The grounds of exercise of supervisory writ jurisdiction were to keep the authorities and tribunals including the Government within their mandated area or the limited bounds or for correcting patent errors of law on the record. (Syed Yakoob v. Radhakrishnan : [1964]5SCR64 .

10. Now after the aforesaid amendment, Art. 226(1) has been restricted by the three sub-clauses under Art. 226(1). Clause (a) provides for this writ jurisdiction for enforcement of fundamental rights and the original writ jurisdiction is kept intact without any fetter on the existence of another remedy under Article 226(3). Clauses (b) and (c) restrict the wide scope of the jurisdiction for other purposes to the specified purpose for redress of any injury, by reason of the contravention of any other provision of the Constitution or any provision of any enactment or Ordinance or by order, rule, regulation, bye-law or other instrument made there under, where such injury is of a substantial nature; or for redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub-clause (b) where such illegality has resulted in substantial failure of justice. Therefore, the jurisdiction in addition to the enforcement of fundamental rights is now restricted to redress of injury (i) in cases where there is contravention of any other constitutional provision or other statutory provisions including orders, rules, bye-laws or instruments made there under, which has resulted in injury of a substantial nature and (ii) where the authority has committed any illegality in its proceedings under any of those constitutional or the statutory provisions, and the illegality has resulted in substantial failure of justice. It is, therefore, that this remedial writ jurisdiction is for redress of injuries arising from contravention of constitutional or other statutory provisions or illegalities committed by the authorities acting under the constitutional or statutory provisions, provided the injury in one case is of a substantial nature or the illegality committed by the authority results in substantial failure of justice. Therefore, the emphasis instead of on other purposed which was interpreted in State of Orissa v. Ram Chandra : AIR1964SC685 to mean that the existence of a right which was said to be illegally invaded or threatened was the foundation of a petition under Art. 226, is now on redress of injuries, resulting from contraventions of other constitutional or statutory provisions of law or illegalities committed by the authorities, in proceeding thereunder, and it is only when such injury is of a substantial nature or results in substantial failure of justice that writ jurisdiction can be exercised. This change of emphasis has, of course, led to the writ jurisdiction being liberated from the technical fetters of the English law in the term 'patent errors of law on the record', because our constitutional mandate now provides this remedy for full redress of such substantial injuries as a result of contraventions or non-compliance with constitutional or statutory provisions, or as a result of illegalities committed by the authorities acting under such provisions, when the result is of a substantial failure of justice. In this context it must be borne in mind that Article 227 is also amended by deleting tribunals from its scope of superintendence so that over tribunals there would be proper writ jurisdiction only under Article 226 as envisaged in the aforesaid Calico, Mill's decision : (1972)IILLJ165SC . We need not mention at this stage that Art. 227 has not been amended with re- prospective effect so as to apply to pending proceedings while Art. 226 has been amended with retrospective effect so as to apply even to the pending proceedings which would have to be considered when the question arises in the context of this writ jurisdiction being exercised against the orders of the tribunal&. Besides, not only the scope of the writ jurisdiction is restricted by the specified purpose which is substituted in the place of 'other purposes' in Cla. (b) and (c), but a further fetter is added under Article 226(3) that no such petition for redress of injury referred to in sub-cls. (b) ,and (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. It is this relevant fetter in Art. 226(3) which has to be examined.

11. A bare perusal shows that this fetter is not attracted to a petition for enforcement of fundamental rights falling under Art. 226(1)(a) as it is restricted to sub-cls. (b) and (c) only. The second feature which must be borne in mind is that this is a fetter to the entertainment of the petition itself because now the writ jurisdiction for the specified purpose in Cls. (b) and (c) of Art. 226(a) has to be exercised if there is no other remedy for such redress provided for by or under any other law for the time being in force. Formerly, by a self-limitation the discretion was exercised not to entertain writ petitions when alternative remedy existed but now when a constitutional fetter is created, the Court would have no jurisdiction if alternative remedy for such redress is provided for by or under any other law. This being a fetter on the jurisdiction of the Court will have to be strictly interpreted. Even though the words any other remedy, had been used, it is obvious that 'any other remedy, has to be for redress of the injury for which this writ jurisdiction is conferred and, therefore, it must be equally adequate ox efficacious so that qualitatively and quantitatively the same relief would be given for redress of the injury to the petitioner, Therefore, the adequate efficacious remedy is always implicit if the remedy is to be for redressing the injury as effectively as could be done in the writ petition. The third important feature is that such a remedy must have been provided for by or under any other law for the time being in force which makes it implicit that this must be a direct remedy specifically provided by or under the specific law in force under which the impugned action is taken or order is made in this connection it would be pertinent to refer to the relevant portion of the speech of the Union Law Minister while moving the Constitution (Forty-fourth Amendment) Bill, 1976 for consideration in the Rajya Sabha on November 4, 1976. Said he:

'But, of course, if there is an alternative remedy which is provided in the law under which a particular action taken or an order is made, it is necessary that first that alternative remedy should be exhausted ...' (Underlining supplied).

This alternative remedy, therefore, could never be the general remedy of a civil suit which is by way of a collateral attack and which would be available in every case for ultra vires orders unless it is specifically excluded. The amplitude Of this fetter is made dependent on the existence of the other effective alternative remedy which is in terms provided whether by the specific law or under the subordinate legislation of such law. One thing is certain that such alternative remedy must be specifically provided for Therefore, the amplitude of the fetter would depend on the amplitude of such alternative remedy which is provided ford direct attack by or under the other law in question and not on any general remedy of a civil suit by way of a collateral attack.

12. Mr. Vakharia vehemently argued that the distinction between a real and a purported order could not exist in the context of this amendment under Article 226(3) because the fetter is all comprehensive once -any kind of remedy is shown to exist whether by way of the statutory appeal, revision etc., directly or even by a collateral attack in a civil Court. We cannot agree to that contention for the simple reason that although the writ jurisdiction has been restricted by specifying the particular purpose in Cls. (b) and (c) for which now the writ jurisdiction could: be exercised, the grounds for such supervisory writ jurisdiction are still contraventions of constitutional or other provisions of law including orders, rules, regulations, bye-laws or other instruments made there under or the illegalities committed by the authorities acting under those provisions. Even this new ground would show that the distinction between a real,: and a purported order which is an ultra vires order substantively or procedurally by not remaining within the limited bounds or the mandated area or because of non-compliance of fundamental essential provisions of law or principles of natural justice which would make such orders nullities or ex facie without jurisdiction would be all the more material. If in England where the Parliament was supreme and where it had introduced non-certiorari clauses in the Act of the Parliament, this distinction had been adopted by the House of Lords in the decision in Anosmatic Ltd. v. Foreign Compensation Commission (1969) 1 All ER 208 so that statutory tribunals and authorities would be kept within their limited bounds or the mandated area and would not become absolute, the same material distinction between a real and a purported order must be adopted when our constitutional amendment under Art. 226(3) has not introduced the no certiorari clause but has only introduced a mere fetter as to the stage at which the writ jurisdiction should be exercised after exhausting the alternative efficacious normal remedy under the law.

13. In Union of India v. Tara hand Gupta & Bros., : 1983(13)ELT1456(SC) , when -a similar question arose as to whether a civil suit was barred because the decisions or orders of the Customs authorities in appeal under the Sea Customs Act, were made final under Section 198, the same test of a real and a purported determination evolved in the Anosmatic Ltd. case (1969 1 All ER 208) (supra) was in terms approved and applied by our Supreme Court as under:

'A determination, which takes into consideration factors which the officer has no right to take into account, is no determination. This is also the view taken by Courts in England. In such cases the provision excluding jurisdiction of civil Courts cannot operate so as to exclude an inquiry by them. In Anosmatic Ltd. v. The Foreign Compensation Commission (1969) 1 All ER 208: (1969) 2 WLR 163 Lord Reid at pages 213 and 214 of the Report stated as follows:

'It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and 1 have come to the conclusion that it is better not to use the term except 'in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity it may have given its decision in had faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly'.

To the same effect are also the observations of Lord Pearce at page 2,33. R. v. Fulham, Hammersmith and Kensington Rent Tribunal (1953) 2 All ER 4 is yet ,another decision of a tribunal properly embarking on an enquiry, that is, within its jurisdiction, but at the end of its making an order in excess of its jurisdiction which was held to be a nullity though it was an order of the kind which it was entitled to make in a proper case.

The principle thus is that exclusion of the jurisdiction of the civil Courts is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Even where a statute gives finality such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not, acted in conformity with the fundamental principles of judicial procedure. The word 'jurisdiction' has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects, one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of .a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.'

Therefore, where the order in that case was in non-compliance with the relevant customs entry and where the Customs Officer who had embarked upon an enquiry with jurisdiction had during the course of the enquiry acted in excess of jurisdiction by taking into consideration something which he had no right to take into account, it was held that the bar of the civil suit did not apply to such orders in non-compliance with the statutory provisions as such cases were covered by the exceptions laid down in Mask & Co.'s case, . It was pointed out that the order of the Collector of Customs was not one in respect of which the Collector was invested with jurisdiction and to such orders the bar excluding the jurisdiction of civil Courts was not applicable. The order being a nullity, even Art. 14 of the Limitation Act could not be applied to hold the suit time-barred.

14. At this stage it would be proper to consider why this distinction was always kept in mind by the Courts even when a self-limitation was evolved not to entertain writ petitions when alternate- remedy existed. In Bhopal Sugar Industries v. Sales Tax Officer, Bhopal AIR 1967 SC 549, it was held that the High Court did not exercise the writ jurisdiction under Art. 226 by entertaining petitions against the order of taxing authorities. when the statute under which tax is sought to be levied provides a remedy by way of an appeal or other proceeding to a party aggrieved and thereby bypass the statutory machinery. That was not to say that the High Court would never entertain a petition against the order of the taxing officer. The High Court had undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes any fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of Procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on an interpretation of the statute which is erroneous. The High Court may also in; appropriate cases determine the eligibility to tax of transactions the nature of which is admitted, but the High Court normally does not proceed to ascertain the nature of a transaction, which is, alleged to be taxable. The High Court leaves it to the tax-payer to obtain adjudication from the taxing authorities in the first instance.

15. Reiterating the same view in Champalal v. Commissioner of Income tax. West Bengal : [1970]76ITR692(SC) , it was emphasized once more that the Income-tax Act provides a complete -and self-contained machinery for obtaining relief against improper action taken by the departmental authorities, and normally the party feeling himself aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High, Court directly against the action. The case was not one where no notice of hearing was served, but only of inadequate opportunity of making representation and it was held that where the aggrieved party has an alternative remedy, the High Court would be slow to entertain a petition challenging an order of a taxing authority which was ex facie with jurisdiction. It was in terms held that a petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petitioner. Therefore, such orders ex facie without jurisdiction or in violation of fundamental principles of judicial procedure which were not real but purported orders as explained above, were treated on par with cases of invasion of fundamental rights and the existence of alternative remedy was held not to come in the way of entertaining writ petitions.

16. The underlying principle for this approach is clearly explained in U. P. State v. Mohd. Noor AIR 1958 SC 86 by holding that these are errors, Irregularities or illegalities touching jurisdiction or procedure committed by an inferior Court or tribunal of first instance which are so patent and loudly obtrusive that they leave on the decision on indelible stamp of infirmity or vice which could not be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the sperior court's sense of fairplay, the superior Court would quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. That approach was all the more appropriate in case of departmental tribunals where the remedy against such glaring lapse or lack of power was almost futile.

17. That is why right from the earliest decisions of the Full Bench in Ab- Abdulrehman v. The Government of Bombay : AIR1942Bom257 where Beaumont C. J. spoke for the Full Bench, the same approach has been adopted on a similar question of bar under S. 11 of the Bombay Revenue jurisdiction Act, 1876, which barred the entertainment of a civil suit unless the plaintiff proved that he had presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present. At page 590, the Full Bench held that it was an established principle that where an authority which purports to pass an order is acting without jurisdiction, the purported order is a mere nullity, as Sir Lawrence Jenkins puts it, it is mere waste paper; and it is not necessary for anybody, who objects to that order, to apply to set it aside. He can rely on its invalidity when it is set up against him, although he has not taken steps to set it aside. Such an order without jurisdiction is a nullity and it cannot give rise to any right whatever, not even to a right of appeal. Such an invalid purported order does not, therefore, create a bar under S. 11 of the Bombay Revenue Jurisdiction Act.

18. In Ramrao v. State of Bombay : [1963]48ITR108(SC) even the Supreme Court in the very same context of S. 11 of the Bombay Revenue Jurisdiction Act, 1876, applied the test whether the statute in question had provided an -appeal against the act of the revenue authority in question. Where, therefore, the auction sale was not merely irregular but only a purported sale for the nominal bid offered by the Mahalkari authorized by the Collector, there being no specific provision of appeal and there being no decision which was capable of appeal within the meaning of S. 203 of the Bombay Land Revenue Code, against such authorization of the Mahalkari by the Collector to offer such a bid, the bar under S. 11 was not attracted for entertaining the suit against such a purported sale.

19. Even under Ss. 35 and 36 of Central Excises and Salt Act, 1.9,44 itself, Bhagwati J., as he then was, in Union of India v. Narendra : (1968)9GLR261 , took the same view that those Sections did not exclude the jurisdiction of Civil Court where the action of the Excise Officer was outside the statute, as for example, where the Excise Officer insisted on compliance with the provisions of the Act or the Rules in ewe of goods which were not excisable under the Act and, therefore, not within the scope and ambit of the Act and the Rules. It was held that the finality given by Ss. 35 and 36 was only for the purposes of the Act and it did not make valid an action unwarranted by the Act. At page 277 it was further held that if there was no provision in the Act or the Rules empowering the Excise Officers to determine except in a proceeding for adjudication of penalty and confiscation under R . 210, that a manufacturer was liable to obtain licence for carrying on the business of manufacturing the goods, such a decision or order being not under the Act or the Rules so as to be appealable under S. 35, it would not create any bar to the entertainment of a civil suit.

20. Mathew J., as he then was in Ponkunnam Traders v. Additional Income-tax Officer : [1972]83ITR508(Ker) , took the same view that where a decision is null and void by reason of want of jurisdiction, it could not be cured by any appellate proceedings and, therefore, failure to take advantage of that somewhat futile remedy did not affect the nullity inherent in the challenged decision. The party affected may appeal against such decision, but he was not bound to do so, because he was at liberty to treat the act as void.

21. Even in Husein Miya v. Chandubhai : AIR1954Bom239 , the Division Bench consisting of Chagla C. J. and Dixit J., in terms held on principle that merely because a statute provides for a right of appeal, the party against whom the order is made is not bound to appeal although the order made is a nullity. If the order is a nullity, the party is entitled to ignore it, to treat it as waste paper, and to go to a civil Court for a declaration that the order is a nullity and it could not prejudice his rights.

22. Therefore, the principle which emerges from these decisions is that when the petitioner is to be asked to exhaust his alternative remedies provided under the Act before entertaining the writ petition, this distinction would always be material where the order is a nullity as being ex facie without jurisdiction or in non-compliance with the provisions of the Act or the essential principles of justice or on any other ground as explained in Tarachand Gupta's case or Bhopal Sugar Industries case or Molid. Nooh's case (supra) and is, therefore, a purported order or a nullity. In such a context the alternative remedy would be a futile remedy because it did not affect the inherent nullity in the challenged decision, which would result in material distinction that the party may appeal against such decision but he was not bound to do so.

23. As pointed out in Dana Nathu v. Sub-Divisional Magistrate, Rajkot (1973) 114 GLR 209 if the order of the executive authority is an ultra vires order, it would be a nullity and even if an appeal is filed, the order confirmed in appeal would also be a nullity. Therefore, in such cases where the challenge is on the ground that the order is an ultra vires order, the question of exhausting alternative remedy could hardly arise as the petitioner could straightway seek remedy of judicial review. These settled principles would be all the more applicable after this constitutional fetter where the emphasis is now on full redress of injuries for which specified purpose only this extraordinary remedy is created so that in such substantial injuries consisting of non-compliance with other constitutional or statutory provisions or illegalities which go to the root so as to result in failure of justice when committed by authorities and tribunals acting under those provisions, it would be a poor consolation to a citizen to be told in cases of such purported orders to avail of such remedy which he is not bound to exhaust and which would not be efficacious at all but a futile remedy in case the order is confirmed as it would still remain a nullity.

24. Mr. Vakharia, however, pointed out that the term 'jurisdiction' for the purpose of judicial review is given such a wide meaning in the Anisminic case (1969 1 All ER 208) (supra) an public policy grounds to reach cases of injustice by making a distinction of such purported orders when there was lack of power, but that distinction could not now be pressed in service when Art. 226(1) creates a distinction between Clause (a) where only invasions of fundamental rights are contemplated which are outside the scope of this fetter in Art. 226(3), and when the fetter is laid down in all other cases falling under Cls. (b) and (c) when the writ jurisdiction is exercised for the specified purpose of redress of injuries only. Even there the amplitude of the constitutional fetter is co-extensive with providing the direct remedy of challenge. Therefore, in each case the provision relating to relevant normal statutory remedy for direct attack provided under the other law in force would have to be examined to find out whether the term 'jurisdiction' would have to be interpreted in the narrow or the wider sense so as to provide direct attack even in cases of purported orders by making an exhaustive code leaving no room for collateral activity.

25. In taxation statutes like the one which fell for consideration in Kamala Mills V. Bombay State : [1965]57ITR643(SC) , namely, S. 20 of the Bombay Sales Tax Act, 1946, the seven judges, Bench in terms held that S. 20 was so wide as to take in all assessments made or purported to have been made under the Act and therefore, even purported orders having been protected by that provision, such purported assessments could not be called in question in any civil Court. At page 1948 it was in terms held on an examination of the relevant provisions of the Bombay Sales Tax Act, 1946, that the scheme was so exhaustive that all questions pertaining to the liability of the dealers to pay assessment in respect of their transactions had been expressly left to be decided by the appropriate authorities under the Act as matters falling within their jurisdiction. The whole activity of assessment, beginning with the filing of the return and ending with an order of assessment, completely fell within the jurisdiction of the appropriate authority and no part of it constituted a collateral activity not specifically and expressly included in the jurisdiction of the appropriate authority as such. Therefore, the finding of the appropriate authority whether the transaction was taxable or not was not a finding on a collateral fact but on a jurisdictional issue and, therefore, even the decision of the appropriate authority that a transaction which was an outside sale within the meaning of Art. 286 of the Constitution as it was in 1956 was not an outside sale and sales tax was levied thereon, the decision of the appropriate authority could not be said to be without jurisdiction so as to be outside the purview of the wider protective umbrella of Section 20 of the Act.

26. Even in H. P. M. Trivedi v. V. B. Raju : [1974]1SCR548 , such wide amplitude was held to be of the election laws in question for preparation of electoral rolls and an intention was inferred to withhold judicial review by treating even the question of ordinary residence for the purpose of entering -a person's name in the electoral roll as a decision on a jurisdictional fact within the exclusive jurisdiction of the registering officers and the appellate authorities so that there would be no question of any judicial review by any collateral attack either in a civil Court or even before an election tribunal. in that decision the distinction was noted of cases even in election matters as in Baidyanath Panjiar v. Sita Ram Mahto : [1970]1SCR839 which took the view that violation of S. 23 (3) of 1950 Act in entering or deleting the names of persons in the electoral rolls after the last date for deleting the name relates to lack of power. Such exceptional cases where the Act is made a complete Code so that the authority is conferred a wide jurisdiction by making all activities as falling within its jurisdiction and not as collateral, even such purported orders would not be nullities and they would be subject to direct challenge under the normal remedy under the Act and that is why there would be no scope of challenge by collateral attack in a civil Court or in writ jurisdiction without exhausting the wide obligatory normal remedy provided under the Act. On the other 'hand in cases like the present one, under S. 35 of the Central Excises and Salt Act. 1944. where appeal provided by the person aggrieved only against decision or order passed by a Central Excise Officer under the Act or the Rules made there under, the amplitude of the appeal remedy would not 'be widened because the appeal remedy is obligatory for decisions or orders passed under the Act and not against purported orders which would be nullities and which could not be cured in appeal as only a nullity would be confirmed in appeal.

27. The aforesaid discussion clearly reveals that every Act would have to be examined when such a question of the existence of alternative remedy arises and it would have to be found out as to what is the amplitude of the normal Act remedies for appeal or revision so that the question of real or purported order would be decisive. If the Act remedy is so wide as to cover even purported orders so that no part of the activity of the authority is a collateral activity, the Act having provided for direct remedies to such a wide extent, that remedy would have to be first exhausted. On the other hand, where the Act remedies are not of such wide amplitude but only for orders under the Act, in cases of such purported orders, the appeal remedy could not come in the way of the petitioner as it could not be said to have been provided for such purported orders which are null and void and which it would not be obligatory for the petitioner to exhaust for the simple reason that such an appeal remedy would not be able to cure the defect even if the appeal confirms the original order bearing this indelible mark of nullity.

28. Similarly in cases where the question raised is of legislative competence or of excessive delegation the authorities created by the Act being creatures of the statute such questions of ultra vires of the provisions of the Act would be foreign to the scope of that Jurisdiction and they could not dispose of such questions of ultra vires of the provisions of the statute, orders, rules or instruments made there under as per the settled legal position after the decision in Ven- 9, Co. v. State of Madras : [1966]60ITR112(SC) The same would be true of the orders which are totally de hors the Act and, therefore, ex facie without jurisdiction even in the narrow sense as complete nullities which could be ignored as creating no rights and obligations whatever. The amplitude of the appeal provision would be a relevant consideration in cases of purported orders without 'jurisdiction', as interpreted in the wider sense as explained in the Anisminic decision [(1969) 1 All ER 208] as aforesaid. These are only illustrative cases which we have considered to bring out the true scope and ambit of this fetter created under Art. 226(3) for considering this question of abatement of such writ petitions and, therefore, these illustrations -are not intended to be exhaustive.

29. Finally, the last question which remains is as to cases of enforcement of fundamental rights falling within Article 226(1), Clause (a) where there is no fetter of this alternative remedy for entertaining such a petition under Art. 226(3). That question is no longer res integra because on the identical provision in Art. 32, the question is concluded by the decision in Coffee Board, Bangalore v. Joint Commercial Tax Officer : [1970]3SCR147 where their Lordships laid down the ratio as under:

'In Smt. Ujjam Bai's case AIR 1962 SC 1621, the question was whether assessment of Sales Tax under a valid Act was open to challenge under Art. 32 on the ground of misconstruction of the Act or a notification under it. It was held that the answer was in the negative. That case has given some trouble in view of the different opinions expressed in it. It is, therefore, necessary to state simply the propositions which are settled by this Court. The ruling recognises the existence of a right to move this Court under Art. 32 where the action is taken under an ultra vires statute. or where, although the statute is intra vires the action is without jurisdiction or the principles of natural justice are violated. Errors of law or fact committed in the exercise of jurisdiction founded on a valid law do not entitle a person to have them corrected by way of petitions under Article 32.'

Further proceeding at p. 877 it is held that the Court would limit the petitioner to establishing a breach of fundamental right and would not allow a petitioner to use the provisions of Art. 32 to do duty as an appeal. 'A clear enough case as laid down in Ujjam Bai's case........ must be made out. A threat to property unbacked by a valid law or a want of jurisdiction or a breach of the principles of natural justice must be clearly made out, to entitle one to the assistance of this Court. If that is successfully done then the provisions for other remedies do not stand in the way' it should be noted that on the preliminary question as to the writ petition being maintainable under Art. 32 all the five Judges had agreed even though on merits when the majority view was to dismiss the petitions, there was a difference. This decision settles the legal position so far as the question of entertainment of such petitions is concerned on the ground of invasion of fundamental rights where the aforesaid ratio would clearly conclude the question.

30. Therefore, it is in the light of these principles that we will have to answer the question of abatement raised before us by the learned counsel for the petitioners. The petitioners must succeed on both the questions raised by Mr. Sorabji. The present group of petitions would clearly fall within the Coffee Board : [1970]3SCR147 ratio as petitions for enforcement of fundamental rights to hold property under Art. 31(1) as prima facie it is shown that the excise authorities are seeking to enforce this demand of excise duty arrogating a jurisdiction to themselves to change the settled basis of excise levy for this blended yarn for all these years by acting on the aforesaid Trade Notice issued by the Deputy Collector in breach of the principles of natural justice. At this stage we have to see only the prima facie case as per the demurrer being clearly made out of want of jurisdiction or breach of the principles of natural justice to entitle the petitioner to the assistance of this Court because of the actual threat to their fundamental rights of holding the property under Art. 31(1). Without even waiting for the final process of adjudication, the authorities are insisting on the compliance with the Trade Notice by changing the settled basis of the present excise levy. In any event the petitioners must succeed even on the second question because this would be a tax without contravene Art. 265, the other provision in the Constitution and the challenge is on the ground of this action being ex facie without jurisdiction and in breach of the principles of natural justice by seeking to implement such executive instructions.

31. Mr. Vakharia vehemently argued that the question is really of disputed facts which could be decided on evidence before the taxing authorities and the Deputy Collector having only issued guidelines which were not legally binding on the assessing authority, the petition is premature till the alternative remedy is exhausted under the Act. As earlier pointed out, S. 35 admittedly does not provide any appeal against such a Trade Notice. Even Mr. Vakharia does not dispute that fact that such a Trade Notice is not appealable under S. 35. Even though at the earlier stage Mr. Vakharia was under the impression that the Deputy Collector could issue such an executive instruction under R. 233, ultimately he agreed that in view of R. 2 (22) no such executive instruction could be issued by the Deputy Collector because only the Collector in Gujarat had such a power.

32. In Orient Paper Mills v. Union of India : 1973ECR1(SC) , their Lordships in terms held-----

'If the power exercised by the Collector was a quasi judicial power - as we hold it to be - that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi-judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the Department. It is true that the assessing authorities as well as the appellate authorities are Judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments; they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party. The only provision under which the Board can issue directions is R. 233 of the Rules framed under the Act. That rule says that the Board and the Collectors may issue written instructions providing for any supplemental matters -arising out of these Rules. 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.'

Mr. Vakharia is right that the assessing authority would have to reach its decision without the constraint of any such Trade Notice as even under IL 233 what could be issued would be administrative instructions and not such a direction to change the basis of assessment. The question at this stage is that a prima facie case does exist when such an outsider like the Deputy Collector who was not an original assessing authority has issued such -a direction in the form of a Trade Notice to all units stating that on this question it was decided that the accounting of the yarn in R. G. 1 Register shall be made at the spindle point but for E. B. 4 Register or assessment of duty the weight on the yarn, at the stage of cone, bobbins and beams etc should be taken into account. The Superintendent, who is the assessing authority, even in the letter at Annexure 'B' dated August 28, 1976 has invited the attention of the mills to this Trade Notice and as per the direction in paragraph 2 of the said Trade Notice has directed accounting of the yarn in R. G. 1 Register adding that for E. B. 4 Register or assessment of duty, the weight on the yarn at the stage of cones, bobbins and beams etc. should be taken into account and hag requested the mills to maintain the E. B. 4 Register immediately. Even in Annexure 'F' the Superintendent mentions that he had already directed that for assessment of this yarn the weight of the yam should be taken at cones, beams, bobbins stage etc., and he objected to the duty being paid on the yarn at spindle stage and directed to adopt this changed basis. Therefore, the petitioners' property is sought to be reached by these directions. The executive officers even though in the exercise of such quasi-judicial functions are bound to ignore such directions of their superiors, the fact remains that in the present case immediate implementation has started of this notice giving the right to move this Court to the petitioners because of the actual threat to their property rights before even they are heard.

33. As pointed out in Union of India v Tata Iron & Steel Co. : 1978(2)ELT439(SC) , it is only when a taxing law provides for a clear and unequivocal test for determination as to whether a particular product would fall under strip or skelp it may be possible for the authorities to address itself to the evidence submitted by the parties in order to come to a decision on the basis of the test. That would not be possible when there is no identifiable standard. It wan pointed out that the best way is to define the product for the purpose of excise duty in appropriate terms demarcating clearly the distinction between the two terms- The absence of any identifiable standard, it was pointed out would give rise to the scope for arbitrary assessment at the hands of different authorities. It was further pointed out that in such cases if there were no definite tests by which the particular article could be held to fall under one item and not under the other, there would be no question of two views being possible so that if a reasonable view is taken, there would be no justifiable interference in a writ jurisdiction. It was in terms pointed out that the question in such cases is completely different question as to whether an identifiable test reasonably capable of distinguishing skelp from the strip existed. In the present case the question is of excise duty for blended yarn under Tariff item 18-E and the question is as to which is the standard to be adopted for its assessment as both the parties are agreed that yarn remains yarn and the dispute is as to whether yarn should be assessed at the spindle point or after its weight has increased in sizing. The eloquent contrast of Entry 18--A and its artificial definition of 'manufacture' has 'been relied upon and the fact has been that all these years, right from 1972 when this Entry came in existence for the first time the authorities themselves have adopted the basis of taxing this commodity only at the spindle point. Therefore, a prima facie case is made out both of Invasion of fundamental rights and the order of the authorities being ex facie without jurisdiction or a purported order when even without hearing the petitioners; as per the essential principles of natural justice, the additional excise duty is sought to be recovered from them Therefore, on both the grounds urged by Mr. Sorabji, the petitioners were entitled to approach this Court at this stage and the fetter created under Art. 226(3) does not come in the way of the, petitioners so far as the present group is concerned. We are clarifying that our observation& are only to determine the prima facie case and they should not be construed as being on the merits of the question before us.

34. We, therefore, hold that all these petitions do not abate as contended by the respondents-authorities, and the petitions shall now go before the Division Bench for final disposal accordingly. Costs shall be costs in the petitions.

35. Order accordingly.


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