Skip to content


Rama Krishna Wire Works and ors. Vs. P.T. Pohowala Assistant Collector of Central Excise and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application Nos. 795 to 797/72
Judge
Reported in1978(2)ELT64(Guj)
ActsConstitution of India - Article 226
AppellantRama Krishna Wire Works and ors.
RespondentP.T. Pohowala Assistant Collector of Central Excise and ors.
DispositionPetition allowed
Cases ReferredBangaiorc v. Joint Commercial Tax Officer
Excerpt:
- - the demand being, therefore, an ultra vires demand, the threat to properly by such ultya vires demand would clearly justify the petitioner in approaching this court and availing of this extraordinary remedy at public law the existence at alternative remedy would hardly be material in such a case when the tax demand is ultra vires the act......or the case of want or jurisdiction or a breach of the principles of natural justice was made out. the existence of alternative lemedies would not stand in the way of the petitioner seeking enfotcement of his fundamental rights.2. in view of our aforesaid decisions the present demand is elearly without jurisdiction and on a complete misconception of law that entry 18 of synthetic yarn was attracted to this case. the demand being, therefore, an ultra vires demand, the threat to properly by such ultya vires demand would clearly justify the petitioner in approaching this court and availing of this extraordinary remedy at public law the existence at alternative remedy would hardly be material in such a case when the tax demand is ultra vires the act. therefore, all the petitions are.....
Judgment:

J.B. Mehta, J.

1. These six petitions are completely concluded by our earlier, decisions in Special Civil Application No. 780 of 1970, decided on April 28, 1971, where I spoke for the Division Bench consisting of myself and A.D. Dcsai J. In that decisions this metallised yarn in the form of thin strips of laminated polyster film was, on a harmonious interpretation of both the entries 15A(2) and 18, by keeping them in their respective fields, without cutting down the import of entry 15A(2) or without widening the scope of entry 18, held to fall specifically under item 15A(2) and not at all under entry 18, 'Synthetic yam' relating to fabrous yarn only. This decision was followed by this High Court even in the context of Plastic yarn in Special C.A. No. 509 of 1969 decided on June 22, 1971, where 1 spoke for the Division Bench cosisting of myself and S.N. Patel J. In view of this settled legal position Mr. Vakharia only wanted to distinguish these discisions by the affidavit filed in the present petition. Once the scope of this entry has been already examined and settled by this Court the said affidavit could not make any difference. This very metallised yarn in the form of thin strips of laminated polyester film has been held not to attract Tariff Item 18 as synthetic fibrous yarn, and is held to be covered by entry 15A(2) as an article of polyester. whether laminated or not. In that view of the matter no difference has been made out which would justify and different interpretation in this case. The second ground raised by Mr. Vakharia was the same ground which has been wrned down in these two earlier petitions that all the alternative remedies were not-exhausted and the petitioners had come only at a stage of demand notice. The settled position in Coffee Board, Bangaiorc v. Joint Commercial Tax Officer (A.I.R. 1971 S.C. 870 at page 877) was rched upon that where threat to property was unbacked by a valid law or the case of want or jurisdiction or a breach of the principles of natural justice was made out. the existence of alternative lemedies would not stand in the way of the petitioner seeking enfotcement of his fundamental rights.

2. In view of our aforesaid decisions the present demand is elearly without jurisdiction and on a complete misconception of law that entry 18 of synthetic yarn was attracted to this case. The demand being, therefore, an ultra vires demand, the threat to properly by such ultya vires demand would clearly justify the petitioner in approaching this Court and availing of this extraordinary remedy at public law The existence at alternative remedy would hardly be material in such a case when the tax demand is ultra vires the Act. Therefore, all the petitions are allowed for the same reasons and the rule is made absolute in each case by issuing a writ of cerliorari quashing the impugned demand notices and by restrain-ing the autherities from proceeding further in that connection. Rule is aeeonlingly made absolute in each case with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //