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Patna High Court
Shri. Md. Jakat Ali Biswas vs Board Of Excise And Customs And … on 1 January, 1800
Equivalent citations: 1982 (10) ELT 187 Pat
Author: L M Sharma
Bench: L M Sharma, S A Ahmad

JUDGMENT

Lalit Mohan Sharma, J.

1. The petitioner is the General Secretary of the Pakur Biri Mazdoor Sangh which is a registered trade Union and has filed this writ application representing large number of persons residing in Pakur sub-division of the district of Santhal Parganas, who prepare unlabelled biris under licence issued by the Central Excise Department and specified as L-2 Licence. They are generally described as Sattadars supply the biris to traders holding L-4 licences. It is common ground that the L/4 licensees put their labels on those biris before selling them. An order has been issued by the Excise Department requiring the movement of unlabelled biris from L-2 premises of the Sattadars to the merchants to be accompained by Transit Notes, specimen whereof has been given. These notes have to be prepared by the Sattadars in triplicate and they are required to send a copy to a named authority of the Excise Department. It is stated in the writ application that this requirement imposes a serious restriction on the right of trade of the Sattadars and should, therefore, be struck down. It is further mentioned in the writ application that the Sattadars are governed by the provisions of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and the Contract Labour (Regulation and Abolition) Act, 1970 and that there is no power in any of the respondents to issue a direction as mentioned in Annexure T.

2. Mr. S.R. Ghosal, learned Counsel for the petitioner, has pressed the following three points in support of the application :

(i) The order as contained in Annexure’1′ could have been if at all, made by the State Government by framing rules under Section 44 of the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, and none of the respondents, that is, the Board of Excise and Customs, Government of India, the Collector of Central Excise and Customs or the Sector Officer, Central Excise, Pakur Sector has the jurisdiction to pass the order ;

(ii) Annexure’1′ violates the provisions of Rules 176, 178 and 180 of the Central Excise Rules and is, therefore, illegal; and

(iii) The restriction imposed by Annexure ‘1’ is arbitrary, grossly unreasonable and violates the guarantee under Articles 14 and 19 of the Constitution of India.

3. The respondents have filed a counter-affidavit stating that either the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 or the Contract Labour (Regulation and Abolition) Act, 1970 has no relevancy at all to the present case. A reference is made to the Central Excises and Salt Act, 1944 which deals with the law relating to central duties of excise on excisable goods specified in the First Schedule to the Central Excises and Salt Act, 1944 The Schedule mentions a large number of commodities including bins. Provisions are made in regard to licence in Section 6 of Central Excises and Salt Act The Central Government has been empowered to frame rules under the ‘Central Excises and Salt Act, and rules were framed which are called Central Excise Rules, 1944. Detailed provisions have been made in regard to licence and payment of duty. The Central Government is also authorised to exempt payment of duty and taking of licence in some cases. In the counter-affidavit, it has been stated that the Sattadars who are being represented by the petitioner are required to obtain licence in L-2 form but are not liable to pay any duty. However, the merchants to whom they sell unlabelled biris have to pay duty. It is asserted that in spite of these exemptions in favour of the Sattadars the premises where unlabelled biris are manufactured do not cease to be factory and, as such, the unlabelled biris which are cleared without payment of duty from such premises are to be cleared on Form GP2 as pro-vided in Rule 52A of the Central Excise Rules.

4 It has further been stated in the counter-affidavit that the Central Board of Excise and Customs learnt that payment of Central Excise duty on labelled biris was being evaded under the cover of the benefit given in regard to unlabelled biris, and with a view to check the same, the order as mentioned in Annexure 1 has been issued. Reference in this regard has been made to Rule 52A which says that no excisable goods shall be delivered from a factory except under gate pass in the form indicated, which should be made out in triplicate, and Rule 233 reads as follows :

“233. Power to issue supplementary instructions-The Central Board of Revenue and Collector may issue written instructions providing for any supplemental matters arising out of these rules.”

The allegation of the petitioner that the Sattadars are illiterate and are not in a position to maintain accounts has been denied. It has been further clarified that the impugned order concerns only such Sattadars (L-2 Licence) who supply unlabelled biris to L-4 licences for lebelling the same before selling, and does not apply to independent L-2 licensees who do not deal with L-4 licences. Illustrations have been given of other category of licensees who are required to issue transit chits for transport of tobacco.

5. The respondents have also taken some technical pleas. It has been pointed out that the petitioner filed a representation only a fortnight before coming to this Court and it is suggested that the writ application is premature. It is also said that the petitioner has got an alternative remedy available by way of appeal under Section 35 and revision under Section 36 of the Central Excises and Salt Act, 1944. The further objection is that the writ application is not maintainable at the instance of the petitioner. Referring to the petitioner’s argument that there has been a violation of Rules 176, 178 and 180 of the Central Excise Rules, it has been said that these rules have no application whatsoever to this case.

6. Several other statements have been made both in the writ petition and the counter-affidavit but have not been referred to, by the learned Counsel for the parties, during the arguments, and it is, therefore, not necessary to mention them.

7. So far as the first two points enunciated by Mr. Ghosal and mentioned in paragraph 2 above are concerned the learned counsel did not advance any argument in their support beyond barely formulating them. The details of all the relevant statutory provisions have been given in the counter-affidavit of the respondents and they were examined during the arguments on behalf of the Central Government and it appears that the stand mentioned in the counter-affidavit is quite correct. Mr. Ghosal could not show any relevancy whatsoever of the Beedis and Cigar Workers (Conditions of Employment) Act, 1966 and the Contract Labour (Regulation and Abolition), Act, 1970 to the present case. The power which has been exercised in the present case and to which exception is being taken under the authority given by the Central Excises and Salt Act, 1944 and the rules made thereunder and no reason has been suggested for holding that the direction in Annexure ‘V has been issued without authority. Mr. Ghosal, however, placed before us Rules 176, 178 and 180 of the Central Excise Rules but could not point out their relevancy in regard to Annexure ‘1’.

These”rules deal with the form of application for a licence, form of licence and alteration or substitution of licence. The direction in Annexure T does not deal with the subject of licence at all. I, therefore, do not find any merit in the first two points.

8. The main question which has been pressed before us is that the requirement of Transit Notes to be issued by the Sattadars imposes an unreasonable restriction on the right to carry on trade and is, therefore, ultra vires of Article 19 of the Constitution. It cannot be denied that the petitioner has a right to transport unlabelled biris, but the question is as to whether the requirement introduced by the Transit Notes amounts to denial of the guarantee under Article 19 of the Constitution. The petitioner has stated that the Sattadars are illiterate and are, therefore, not in a position to issue Transit Notes or maintain a register. The fact that there is no merit whatsoever in this plea has been amply demonstrated by the respondents. It has been pointed out that the Sattadars were required in law to maintain a register even before the issuance of Annexure’1′ and the pretence of illiteracy is not worth credence. Besides, it cannot be asserted in the modern times that a person has got a right to carry on business without maintaining accounts if so required by rules. The Sattadars are not at the mercy of any authority in the matter of issuance of Transit Notes ; they themselves have to issue the same. The requirement has been made with the object of defeating the evasion of payment of duty by merchants who are L-4 licensees and, is therefore clearly in public interest.

In the case of Hari Shanker Bagla v. The State of Madhya Pradesh (A.I.R. 1954 Supreme Court 465), the petitioner, inter alia, challenged an order requiring him to take permit from Textile Commissioner to enable him to transport certain textile goods. It was ruled that the requirement could not be regarded as an unreasonable restriction on the citizen’s fundamental rights. In that case, it was the Textile Commissioner who had to be approached for issuing a permit. In the present case, the burden on the Sattadars is much lighter. I, therefore, over-rule the petitioner’s contention on the third point also.

9. In the result, the writ application fails and is dismissed, but without cost.


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