9911796707
TMI Blog1996 (1) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1993. 2. The petitioner Corporation is engaged in the business of revival of closed and sick textile undertakings. New Swadeshi Mills of Ahmedabad Ltd. and Priyalaxami Mills Ltd. of Baroda, were closed on account of financial crisis and the petitioner, with a view to seeing that jobless ex-workers are provided with the work and to ensure that there is production, commenced activity by restarting the said sick Mills. On 8th November, 1985, Gujarat Ordinance No. 18 of 1985 came to be promulgated providing, inter alia, for vesting of all the assets of certain textile undertakings in the State of Gujarat and thereafter in the petitioner Corporation. The said Ordinance has been followed by an Act passed by the Gujarat Legislative Assembly b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount was not paid a show cause notice dated 11-3-1992 came to be issued which is at Annexure-C. 5. So far as Priyalaxmi Mills is concerned, the Assistant Collector of Central Excise, Div. III, Baroda, confirmed the demand on forwarding charges for duties shown against show cause notices issued to M/s. Priyalaxmi Mills, Baroda, as indicated on the order. In all there are five items. The amount of duty confirmed is between ₹ 2,400/- and ₹ 3,800/-. As the amount was not paid in spite of the orders, notice was issued to Priyalaxmi Mills vide Annexure C to the petition. Now it is these orders which are the subject-matter of the writ petition. 6. On behalf of the petitioner, it is submitted that in view of the Act, referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the legislature as well as by the Parliament, then according to his submission, Article 254 will have to be considered. So far as Central Excise is concerned, it finds its place at Sr. No. 84 in the Union List which reads as under : 84. Duties of excise on tobacco and other goods manufactured or produced in India except - (a) alcoholic liquors for human consumption; (b) Opium, Indian hemp and other narcotic drugs and narcotics, but including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry. So far as the custom duty is concerned, its finds it place at Sr. No. 83 of the said List which reads as under : 83. Duties of customs including export duties. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt rejected the same. In view of the provisions contained in the local Act, which, if empowers the authorities in the State to recover excise duty, the harmonious construction is required so as to see that the provisions are not held unconstitutional and Mr. Mehta fairly stated that he does not canvass before this Court that the provisions made in above referred Acts are unconstitutional. Reading the two Acts it is clear that legislature has not enacted the Acts attracting the subjects falling in the Union List but law is enacted keeping in mind the subjects not falling in the Union List. In view of entry at Sr. No. 84 of Union List of Schedule VII to the Constitution of India excise duty can be levied and collected by and under the Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union List only Parliament has power to make law. 11. Rule 230 of Central Excise Rules is the relevant Rule which is required to be considered in these matters which reads as under : 230. Goods, plant and machinery chargeable with duty not paid - (1) When the duty leviable on any goods is owing from or by any person carrying on trade or business, whether as a producer, manufacturer or as dealer in such goods, all excisable goods, and all materials and preparations from which any such goods are made, and all plant, machinery, vessels, utensils, implements and articles for making or manufacturing or producing any such goods, or preparing any materials, or by which the trade or business is carried on, in the custody or possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by operation of the Act, can it be said that the person who acquired the estate or has become the owner, is liable to pay duty? This question is not considered by the authority and it is necessary for the authority to examine this point after hearing the petitioner and thereafter to pass appropriate orders in the matters. Similarly, the Customs authorities will also decide the question in the similar manner after hearing the petitioner and shall pass appropriate order. These authorities will have to consider the fact that it is an acquisition in view of the specific provision of the Act, and not transfer simpliciter as referred in Rule 230(2) quoted above. 13. In view of this position, we set aside the recovery order/notice Annexure C i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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