1982 (6) TMI 53 - HC - Central Excise

Summary

Issues Involved:
1. Retroactive or retrospective effect of notifications under Rule 8 of the Central Excise Rules.
2. Validity of show cause-cum-demand notices issued to the petitioner-company.
3. Application of the Gujarat High Court ruling in Arodaya Spinning and Weaving Company Limited v. Union of India.
4. Requirement for the petitioner-company to undergo departmental proceedings before approaching the High Court.

Detailed Analysis:

1. Retroactive or Retrospective Effect of Notifications:
The primary issue revolves around whether the Central Government, under Rule 8 of the Central Excise Rules, has the authority to issue notifications with retroactive or retrospective effect. The petitioner-company argued that it is not permissible for the Central Government to give retrospective effect to notifications issued under Rule 8(1). The court agreed with this contention, referencing the Supreme Court ruling in *Cannanore Spinning and Weaving Mills Ltd. v. The Collector of Customs and Central Excise, Cochin*, which stated, "The rule-making authority had not been vested with the power under the Central Excises and Salt Act to make rules with retrospective effect." Consequently, the court held that subsequent notifications seeking to take away the effect of earlier exemption notifications retrospectively are beyond the rule-making powers of the Central Government.

2. Validity of Show Cause-Cum-Demand Notices:
The petitioner-company challenged the show cause-cum-demand notices issued by the Assistant Collector of Central Excise, which sought to apply the July 1977 notifications retroactively. The court found these notices to be invalid, as they attempted to impose excise duty retrospectively, contrary to the established legal position. The court quashed the impugned show cause-cum-demand notices dated December 8, 1977; January 13, 1978; and January 30, 1978.

3. Application of the Gujarat High Court Ruling:
The court heavily relied on the Gujarat High Court ruling in *Arodaya Spinning and Weaving Company Limited v. Union of India*, which dealt with similar notifications and issues. The Gujarat High Court had held that imposing retrospective duty on yarn used in manufacturing cotton fabrics between June 18, 1977, and July 15, 1977, was ultra vires the rule-making power of the Central Government. The Bombay High Court found itself in agreement with the reasoning and conclusions of the Gujarat High Court, emphasizing that uniformity and consistency in adjudications on identical questions across different High Courts are essential.

4. Requirement for Departmental Proceedings:
The petitioner-company approached the High Court directly under Article 226 of the Constitution without undergoing the departmental proceedings. The court justified this approach, stating that insisting on completing the departmental route would have been an exercise in futility. The departmental authorities are bound to follow instructions and apply the notifications rigorously, leading to no different end-result. The court emphasized that such insistence would result in unnecessary multiplicity of proceedings and wastage of time, energy, and resources.

Conclusion:
The petition was allowed, and the impugned show cause-cum-demand notices were set aside and quashed. The court expressly held that for cotton fabrics produced by the petitioner-company between June 18, 1977, and July 15, 1977, from yarn on which no excise duty was payable, the excise duty was only on cotton fabrics under Notification No. 226 of 1977 and at no other rate. The respondents were directed to work out the excise duty payable by the petitioner-company in light of this judgment and refund the excess amount paid. The rule issued on the petition was made absolute, and the respondents were ordered to pay the costs of the petition to the petitioner-company. The bank guarantee furnished by the petitioners was also ordered to be cancelled.