GANESHPRASAD JAISWAL Vs. STATE OF M P

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India.

(2.) THE material facts giving rise to this petition, briefly are as follows : The petitioner carries on business of manufacture of Ayurvedic medicines in the name and style of 'kesare Regal Chemical Works' at Indore. The petitioner manufactures 'madhur Munakka' alleged to be a medical preparation and the petitioner uses 'bhang', an intoxicant drug as an ingredient of 'madhur Munakka'. The petitioner obtains the said intoxicating drug from the warehouse at Indore which is under the control of respondent No. 3, the District Excise Officer, in accordance with the provisions of the M. P. Excise Act, 1915, (hereinafter referred to as the Act and the rules made'there-under ). At the time of the removal of 'bhang' from the warehouse, the petitioner has to pay excise duty as provided by Section 15 of the Act In exercise of the powers conferred under Section 25 of the Act, the State Government, by notification dated 15th October 1981, fixed the rate of duty on 'bhang' at Rs. 42. 00 per kg. for medicinal preparations, while the rate of duty on 'bhang' fixed for contractors of Bhang' was Rs. 25. 00 per Kg. Subsequently, by another notification dated 21-12-1981, the rate of duty on 'bhang' for medicinal preparation was enhanced to Rs. 50. 00 per Kg. , while the rate of duty on 'bhang' for contractors was enhanced to Rs. 27. 00 per Kg. . The petitioner contends that this discriminatory imposition of excise duty is violative of the provisions of Art. 14 of the Constitution and there is no legal justification for this discrimination. It was also contended that the said notifications were in excess of powers conferred by the provisions of Section 25 (2) of the Excise act. Hence the petitioner filed this petition.

(3.) DURING the pendency of the petition, the provisions of Section 25 (2) of the m. P. Excise Act were amended by Ordinance No. 3 of 1986 which was subsequently repealed by Act No. 14 of 1987. By the Amending Act, Section 25 (2) of the Excise Act was amended empowering the State Government to impose excise duty at different rates according to the use of excisable article for different purposes. Section 4 of the amending Act validated such imposition of excise duty with retrospective effect The petitioner thereafter amended the petition and also challenged the validity of provisions of Section 25 (2) of the Act as amended.