PAREKH PRINTS Vs. UNION OF INDIA

JUDGEMENT

(1.) In this batch of writ petitions numbering over 50, the petitioners who claim to be job processors doing the job work of cotton [man made fabrics (supplied to them by wholes.ale traders on contract basis and returning the same in the shape of colour printing, dying, etc. as per the design requirements of the wholesale traders) challenge the levy of additional duties of excise under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (for short 'the Act'). In fact they challenge the very validity of the Additional Duties Act. The petitioners want this court to issue an appropriate writ or direction restraining the respondents from levying and collecting the additional duties of exise which levy they say is ultra vires Article. 366(29A) read with Articles 246 and 274 of the Constitution and the petitioners also seek quashing of the notifications dated November 25, 1987 (No. 254/87) December 9, 1987 (Nos. 260 to 262/87), January 19, 1988 (Nos. 4-5188) and March 20, 1990 (Notifications No. 47/90 and 48/90) issued under the Central Excise and Salt Act. 1944 (for short the 'Central Excise Act') being ultra vires Article 274 of the Constitution. The challenge to these notifications was, however given up since the petitioners said they were in fact challenging the constitutional validity of the Additional Duties Act itself. Petitioners say that the additional duty of excise has been levied in lieu of sales tax which is State subject falling in Entry 54 of List II of the Seventh Schedule to the Constitution. They say the Union of India could not interfere with a subject falling under the State List (List II) and since the Additional Duties Act was enacted by Parliament in lieu of I sales tax, the said duty of excise was ultra vires the provisions of the Constitution. They then say that since under Article 265 no tax could be levied or collected except by authority of law and since that authority was lacking, the Additional Duties is invalid and further that the notifications issued thereunder or under the Central Excise Act are again ultra vires the provisions of Article 274 of the Constitution which requires prior recommendation of the President to bills affecting taxation in which States are interested before it is introduced or moved in either house of Parliament.

(2.) The respondents refute any challenge to the validity of the Additional Duties Act and say that the enactment is relatable not to Entry 54 of the State List but to Entries 84 and 97 of the Union (List I) of the Seventh Schedule to the Constitution. They say it has been so held even by the Supreme Court and earlier when the Central Excise and Salt and Additional Duties of Excise (Amendment) Act, 1980, was challenged is the Supreme Court in M/s. Ujagar Prints etc. v. Union of India and others, AIR 1989 S.C. 516,(l) the petitioners never raised any challenge to the validity of the Additional Duties Act though nothing debarred them from doing so. This in brief is the controversy involved in these cases. On facts there is no dispute and there could not be any in the circumstances of the case.

(3.) As a matter of fact the arguments of the petitioners have gone back and forth. At one stage they said that they would not challenge the constitutional volidity of the Act inasmuch as it had been introduced in the parliament on the recommendation of the President and that the Central Excise and Salt and Additional Duties of Excise (Amendment) Act, 1980, was unconstitutional as it was not introduced in Parliament on the recommendation of the President inasmuch as under Article 274 no bill or amendment which imposed or varied any tax or duty in which States were interested could be introduced or moved in either House of Parliament except in the recommendation of the President. The impugned notifications were challenged on similar grounds but with an added emphasis that here the tax was varied by an executive order and not by an enactment passed by the Parliament on the recommendation of the President and thus even otherwise bad under Article 274. It was also submitted that the impugned notifications had grouped the different headings and sub-headings together under the Central Excise (Tariff) Act, 1989, which amounted to amendment of the Schedule to the Act and could not be done by an executive order. The argument proceeded that Schedule could be amended only by Parliament. All these arguments were, however, not pressed and the arguments ended up by saying that the challenge was only to the contitutional validity if the Act itself. It may be noticed here itself that under Article 255 of the Constitution, no Act of Parliament and no provision in any such Act shall be invalid by reason only that some recommendation as required by the Constitution to be given by the President was not so given, if assent to that Act was given by the President.