(1.) This is an application under Article 226 of the Constitution against (1) the Superintendent of Central Excise, Cuttack (2) the Assistant Collector of Central Excise, Puri and (3) the President of the Board of Directors of Madhunagar, Power-loom Weavers' Co-operative Society Ltd. The main prayer in this application is for a declaration that Notification No. 74 of 1959 dated the 31st July 1959 issued by the Government of India in the Ministry Of Finance (Department of Revenue) in pursuance of Sub-rule (1) of Rule 8 of the Central Excises Rules 1944 was ultra vires and for a direction on the two officials of Central Excise Department, namely opposite parties 1 and 2 not to carry it into effect.
(2.) The Central Excises and Salt Act of 1944 is a pre-Constitution Act by which the Central Legislature consolidated and amended the law relating to Central duties of Excise and Salt, The goods on which Central Excise duty was payable were described in the First Schedule to that Act and they were defined as "excisable goods". Section 3 of the Act was the charging Section which authorised the levy and collection of Excise duty on the goods specified in the First Schedule at the rates mentioned therein. Section 37 conferred the power to make rules on the Central Government and Clause (xvii) of Sub-section (2) of Section 37 expressly stated that the rule- making power included the power "to exempt any goods from the whole or any part of the duty imposed by the Act". Rule 8 of the Central Excises Rules, 1944 dealt with the power to authorise exemption from duty in special cases. Sub- rule (1) of that Rule is as follows: 8 (i) The Central Government may from time to time by notification in the official Gazette exempt (subject to such conditions as may be specified in the notification) any excisable goods from the whole or any part of the duty leviable on such goods". Purporting to act in exercise of the power conferred by this sub-rule the Central Government in the aforesaid notification exempted cotton fabrics produced on power looms owned by any co-operative society or by or allotted to the members of such society, from payment of the entire duty leviable thereon, subject to certain conditions which are however not material. The petitioner is a private Company which is running a weaving mill at Naya-bazar Cuttack Town. According to the petitioner exemption from payment of Excise duty on cotton fabrics manufactured by co-operative societies (opp. party No. 3) gave the cooperative societies an unfair advantage over other organisations engaged in manufacturing cotton fabrics and thereby adversely affected them. The Notification was therefore challenged as void on two main grounds:
(3.) Mr. B. Mohapatra raised a preliminary objection to the maintainability of the writ application which, in my opinion, is very sound. He rightly pointed out that though the notification was issued by the Central Government that Government was not made a party in this writ application. On the other hand the parties impleaded are two subordinate officials of the Central Excise Department namely the Superintendent of Central Excise, Cuttack and the Assistant Collector of Puri (Excise) who have absolutely no discretion in the matter and who are bound to carry out the instructions issued in the aforesaid notification by their master, namely the Central Government. Mr. Mohapatra, therefore urged that a writ of this type cannot lie against subordinate officials who are bound to obey the statutory directions given by their master and that the application must fail on the preliminary ground of omission to implead the necessary party.