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Metallica Products Vs. Superintendent, Central Excise and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 675 of 1973
Judge
Reported in1979(4)ELT146(Guj)
AppellantMetallica Products
RespondentSuperintendent, Central Excise and ors.
DispositionPetition allowed
Cases ReferredBangalore v. Joint Commercial Tax Officer
Excerpt:
- - the present demand as per the settled legal position was clearly without jurisdiction and on a complete misconception of law that entry 18 of synthetic yarn was attracted to this case. the demand being, therefore, ultra vires demand, the threat to property by such ultra vires demand would clearly justify the petitioner in approaching this court and availing of this extraordinary remedy at public law......the scope of entry 18, had been held to fall specifically under item 15a (2) and not under entry 18, synthetic yarn relating to fibrous yarn only. when an attempt was made to distinguish this decision followed even in the context of plastic yarn in special c.a. no. 509 of 1969, decided on june, 22, 1971, where i spoke for the division bench consisting of myself and s.n. patel j. in the later group of spl. c.a. no. 791 to 795 of 1972 decided on december 6, 1975 where i spoke for the division bench consisting of myself and b.k. mehta j, on the ground that affidavit had been filed as in the case of the present petition, it was in terms held that once the scope of this entry had been already examined and settled by this court, different affidavits could not make any difference. this.....
Judgment:

J.B. Mehta, J.

1. This petition is completely concluded by our earlier decisions in Special C.A. No. 780 of 1970 decided on April 28, 1971 where I spoke for the Division Bench consisting of both of us. In that decision this metallised yarn in the form of thin stripes of laminated polyester 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, had been held to fall specifically under item 15A (2) and not under entry 18, synthetic yarn relating to fibrous yarn only. When an attempt was made to distinguish this decision followed even in the context of plastic yarn in Special C.A. No. 509 of 1969, decided on June, 22, 1971, where I spoke for the Division Bench consisting of myself and S.N. Patel J. in the later group of Spl. C.A. No. 791 to 795 of 1972 decided on December 6, 1975 where I spoke for the Division Bench consisting of myself and B.K. Mehta J, on the ground that affidavit had been filed as in the case of the present petition, it was in terms held that once the scope of this entry had been already examined and settled by this court, different affidavits 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 was held to be covered by entry 15A(2) as an article of polyester; whether laminated or not. In that view of the matter it was held that no difference could be made on such a ground of further affidavits so as to justify any different interpretation on the relevant entry. Even the second ground raised by the authorities was turned down because the petitioners had come at a stage of demand notice without exhausting alternative remedy. The settled position in Coffee Board, Bangalore v. Joint Commercial Tax Officer, A.I.R. 1971 S.C. 870, at page 877 had been relied upon for the proposition that where threat to property was unbacked by a valid law, or the case of want of jurisdiction or a breach of the principles of natural justice had been made out the existence of alternative remedies would not stand in the way of the petitioner seeking enforcement of his fundamental rights. The present demand as per the settled legal position was clearly without jurisdiction and on a complete misconception of law that entry 18 of synthetic yarn was attracted to this case. The demand being, therefore, ultra vires demand, the threat to property by such ultra vires demand would clearly justify the petitioner in approaching this court and availing of this extraordinary remedy at public law. The existence of alternative remedy would hardly be material in such a case when the tax demand is ultra vires the Act. In that view of the matter this petition is allowed for the same reasons and the rule is made absolute by issuing a writ of certiorari quashing the impugned demand notices and by restraining the authorities from proceeding further in that connection. Rule is accordingly made absolute with costs.


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