MAHARAJA KISHANGARH MILLS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Maharaja Kishangarh Mills Ltd., Kishangarh, made an application under Article 226 of the Constitution of India. That application came up for hearing before a Division Bench of this Court, and, on 5 -11 -1951, the following two points were referred to a larger Bench for decision: 1. Whether by virtue of Articles 278, 279 and 295 of the Constitution of India and the agreement entered into between the President of India and the Raj Pramukh of Rajasthan on 25 -2 -1950, the Union of India is entitled to levy and recover arrears of excise duty on cloth held in stock or manufactured before 1 -4 -1950, in case, excise duty thereon was payable to the State of Rajasthan under the provisions of the Rajasthan Excise Duties Ordinance 25 of 1949?

(2.) WHETHER the publication of the Government notification by which tho Jaipur Excise Rules were adopted under the provisions of the Rajasthan Excise Duties Ordinance was sufficient publication in the meaning of Section 28, Rajasthan Excise Duties Ordinance 25 of 1949, and whether the publication of the aforesaid notification should be deemed to have been properly authenticated by authentication of the publication of the Ordinance. If not, whether want of authentication would have the effect of invalidating the said Excise Rules? 2. Certain facts may be narrated in order to decide the two points which have been referred to this Bench. The Maharaja Kishangarh Mills Ltd., Kishangarh is_ manufacturing cotton cloth at Kishangarh in the State of Rajasthan. The Central Excises and Salt Act, 1944, was extended to the State of Rajasthan by Section 11, Finance Act, 25 of 1950, from 1 -4 -1950, and the necessary rules under that Act also came into force from the said date. The Superintendent of Central Excise, Jaipur Circle, Jaipur, served a notice of demand on the applicant for payment of excise duty, on 16 -2 -1951, on cloth manufactured or in stock before 1 -4 -1950. The contention of the applicant was that the Union of India was not entitled to levy excise duty on cloth manufactured or in stock before 1 -4 -1950. Therefore, the notice, that was given to the applicant to pay duty on such cloth, was illegal, and unauthorised by any provision of law. Theapplicant, therefore, prayed for a proper direction, order, or writ under Article 226 of the Constitution to be issued to the Union of India, and its officers prohibiting them from levying or collecting any duty or tax by way of excise duty on cloth manufactured by the applicant the Maharaja Kishangarh Mills Ltd., Kishangarh, before 1 -4 -1950.

(3.) WE shall take the second point first. It appears that certain rules were published in the Hindi Rajasthan Gazette of 12 -11 -1949, under Section 28 of the Rajasthan Excise Duties Ordinance No. 25 of 1949. By these rules the Jaipur Excise rules with certain modifications were to be the rules under the Rajasthan Ordinance. The Hindi Gazette, however, in which these rules were published, does not contain any authentication of these rules, and does not show by whose authority they were published. We cannot accept the contention on behalf of the opposite parties that the authentication, which appears before the Hindi version of the Act in the Gazette of 12 -11 -1949, covers these rules also. That authentication is dated 15 -9 -1949, and appears under the signature of the Law Secretary to the Government of Rajasthan, and merely says that the following Ordinance made and promulgated by the Rajpramukh on 5 -9 -1949, is being published for general information. The Ordinance referred to is Ordinance 25 of 1949. This authentication, therefore, cannot be said to authenticate the rules which appear on page 170 of the Hindi Gazette, dated Margashirsa Krishna 7 (12 -11 -1949). The rules, which are published from page 170 onwards begin as follows (Our translation): 'In exercise of the powers conferred under Sections 5 and 26, Rajasthan Excise Duties Ordinance of 1949, the Rajasthan Government orders that till new rules are framed under the said Ordinance, the rules framed under the Jaipur Excise Duties Act of 1945, known as the Jaipur Excise Duties Rules of 1945, will be in force throughout the whole of Rajasthan with necessary modifications, and will be deemed to have been made under the Rajasthan Ordinance,' Then follows certain additions to the rules. There is no authentication of any kind to these rules which were published in this Gazette. The presumption therefore of Section 3(2), Rajasthan Administration (Amendment) Ordinance No. 5 of 1949 does not apply to thes rules.