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Shree Prakash Textiles (Guj.) P. Ltd. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 4359 of 1984
Judge
Reported in1987(13)ECC30; 1987(11)LC275(Gujarat); 1987(27)ELT393(Guj)
ActsKhadi and other Handloom Industries Development (Additional Excise Duty on Cloth) Act, 1953
AppellantShree Prakash Textiles (Guj.) P. Ltd.
RespondentUnion of India and ors.
Appellant Advocate D.A. Dave, Adv.
Respondent Advocate S.D. Shah, Addl. Standing Counsel
Cases ReferredRayala Corporation Ltd. v. Director of Enforcement
Excerpt:
ce. ti. 19, 22; khadi and other handloom industries development (additional excise duty on cloth) act, 1953. omission of a rule without saving clause - power under an omitted rule cannot be exercised if there was no saving clause. - .....duty of handloom concession under the khadi and other handloom industries development (additional excise duty on cloth) act, 1953. the prayers in the petition are as follows :- (a) your lordships will be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or any other writ, order or directions quashing and setting aside the notice to show cause dated 3-9-1978 at annexure 'e' and order passed thereon on 26-6-1984 and annexure 'k'. (b) your lordships will be pleased to issue a writ of prohibition or a writ in the nature of prohibition or any other writ, order or direction, prohibiting the respondents, their servants and agents from recovering any duty of excise from the petitioners under the provisions of khadi and other handloom' industries.....
Judgment:

Bhatt, J.

1. Mr. D.A. Dave deletes the respondent no. 5 because he is covered by the respondent no. 1.

2. The respondents are served. This is petition pertaining to the duty of Handloom concession under the Khadi and other Handloom Industries Development (Additional Excise Duty on Cloth) Act, 1953. The prayers in the petition are as follows :-

(A) Your Lordships will be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or any other writ, order or directions quashing and setting aside the Notice to show cause dated 3-9-1978 at Annexure 'E' and order passed thereon on 26-6-1984 and Annexure 'K'.

(B) Your Lordships will be pleased to issue a writ of Prohibition or a writ in the nature of prohibition or any other writ, order or direction, prohibiting the respondents, their servants and agents from recovering any duty of excise from the petitioners under the Provisions of Khadi and other Handloom' Industries Development (Additional Excise Duty on Cloth) Act, 1953 for the period for 18-6-1977 to 29-5-1978;

(C) Yours Lordships will be pleased to issue a writ of declaration or a writ in the nature of the declaration or any other writ, order or direction declaring that the provisions of the Central Excise & Salt Act, 1944 or the provisions of the Central Excise Rules, 1944 relating to recovery cannot be invoked for the purposes of levy of Additional duty of excise under the provisions of Khadi & other Handloom Industries Development (Additional Excise Duty on Cloth) Act, 1953;

(D) Your Lordships will be pleased to issue a writ of declaration or a writ in the nature of declaration or any other writ, order or directions declaring that no duty of excise is leviable under the provisions of the Khadi and other Handloom Industries Development (Additional Excise Duty on Cloth) Act, 1953 on cotton fabrics or man made fabrics falling under Item No. 19 or 22 of the First Schedule to the Central Excise & Salt Act, 1944;

3. Two days ago, we had an occasion to consider an identical matter, namely, the Special Civil Application No. 4357 of 1984. By our judgment dated 6-3-1985, we had allowed that petition. The powers under the Central Excise Rules, as they were then, could not be exercised after the said Rule had been omitted without there being any express saving. We accordingly allow this petition on that solitary ground without going into other grounds agitated here also (as they were agitated in that petition) and declare that the proceedings at Annexures E & K are ultra vires the authority of the Central Government and they are quashed. Rule is accordingly made absolute with no orders to costs.

4. We refuse the oral application made by Mr. S.D. Shah under Art. 133 of the Constitution of India because the point is covered by the Supermen Court's judgment in the case of M/s. Rayala Corporation Ltd. v. Director of Enforcement, New Delhi - A.I.R. 1970 S.C. 494.

5. At the request of Mr. S.D. Shah, stay of the operation or our judgment is granted for a period of six weeks from today.


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