S SORNAM Vs. INSPECTOR OF CENTRAL EXCISE SIVAKASI

JUDGEMENT

(1.) THIS petition under Article. 226 of the Constitution of India is for the issue of a writ of certiorari or any other appropriate writ or order calling for the records of the second respondent, the Union of India, relating to Order No. 1624 dated 11-8-1976 relating to F.No. 195/15/303/75 CX-V and quashing that order.

(2.) THE petitioner is a manufacturer of safety matches and also matches of the type known as Bengal Lights. THE Government of India, the second respondent, issued two Notifications Nos. 45 of 1961 and 162 of 1967. Notification No. 45 of 1961 dated 1-3-1961 reads :- "In exercise of powers conferred by sub-rule (1) L of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts matches of the type known as'Bengal Lights'when manufactured in a factory whose output does not exceed 500 million matches per year and packed in boxes containing on an average not more than 10 matches, from the payment of so much of the excise duty leviable thereon as is in excess of 77 paise per gross of boxes." Notification No. 162 of 1967 dated 21-7-1967, reads : "Under Government of India, Ministry of Finance (Department of Revenue and Insurance), Notification No. 162/67-Central Excise dated, 21 7-1967, as subsequently amended by Notification No. 205/67-Central Excise, dated 4-9-1967, and No. 187/68-Central Excise, dated 2-11-1968, the Central Government hereby exempts matches specified in column 2 of the Table below falling under this item and cleared by any manufacturer for home consumption from so much of the duty of excise leviable thereon as is in excess of the rate specified in the corresponding entry in column 3 of the said table. Provided that (i) matches referred to in category 2 and cleared for home consumption during the financial year from a factory from which the total clearance of matches during that year is not, as per declaration made by the manufacturer under this Notification estimated to exceed 75 million matches, shall be allowed to be cleared at the rate of Rs. 3.75 per gross of boxes of 50 matches each, up to 75 million matches and the quantity of matches, if any, cleared in excess and up to 100 million matches shall be allowed to be cleared at the rate of Rs. 4.30 per gross of boxes of 50 matches each; and if the clearance in such factory exceeds 100 million matches during the financial year the manufacturer shall be required to pay duty at the rate of Rs. 4.30 per gross of boxes of 50 matches each, on the entire quantity cleared during the financial year;.'

(3.) IT is not disputed that the demand of the first respondent was made more than three months after the assessment and it would not be in time if the case is governed by Rule 10 of the Central Excise Rules. The respondents contend that the case is governed by Rule 10A. IT has not been disputed that the rule has been struck down by this court in W.P. No. 419 of 1970 which has been followed by a Bench of this court in W.P. No. 4145 to 4155 of 1975. IT has only been contended that C. A. 1202 and 1203 of 1975 have been preferred against this court's judgment in W.P. No. 419 of 1970. So long as the result in W. P. No. 419 of 1970 stands, no interference with this court's judgment in the said W.P. No. 4145 to 4155 of 1975 is called for. As observed by the learned judges of the Bench which disposed of W.P. No. 4145 to 4155 of 1975, the judgment rendered in W.P. No. 419 of 1970, is binding on this court. Therefore, it has to be held that Rule 10A is invalid in law and could not be relied upon by the respondent and a claim made more than three months after the assessment is barred by limitation.