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TMI Blog1965 (11) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... rant a personal hearing at the revision stage and further intimated that if the petitioner had any further submissions to make they may be sent in writing. Thereafter, on the 21st December, 1961 (Annexure III), the Central Government rejected the revision application. ( 2. ) By the Finance Act, 1961, the following new item, item 33A, was inserted in the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act )'. Item No. Description of goods. Rate of duty. 33A Wireless Receiving Sets, all sorts including Transistor Sets and Radiograms, with or without loud speaker. 20 per cent ad valorem. Though the Finance Act came into effect only from the 1st April, 1961, in respect of several items, nevertheless by virtue of the declaration under the Provisional Collection of Taxes Act, 1931, made in the Bill itself, the aforesaid insertion of item 33A in Schedule I of the Act came into effect from the midnight of the 28th February--1st March, 1961. Hence excise duly at the rate mentioned above would be payable in respect of wireless sets whose manufacture was completed after the said date; but if the sets had been fully manufactured prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition Clause (f) of Section 2 was specially inserted in the Act in the following terms, namely, manufacture includes any process incidental or ancillary to the completion of a manufactured product . From this definition it may be fairly inferred that the stage of completion of a manufactured produce is not reached until all the processes incidental or ancillary have also been completed. The rate of excise duty was mostly on the aJ valorem basis and hence Section 4 laid down the principles to be followed in calculating the value of an article. Clause (a) of that section stated that the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold at the time of the removal of the article chargeable with duty shall be the value of the article. If such wholesale market does not exist for such article at such price at the place of manufacture, the wholesale price existing at the nearest place where such market exists shall be the. relevant factor. Clause (b) of that section provided for a special contingency which may arise if such wholesale price is not ascertainable at all. In such circumstances the price at which an article of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tte. All such rules and notifications shall thereupon have effect as if enacted in this Act: Provided that every such rule shall be laid as soon as may be after it is made before Parliament while it is in session, for a total period of thity days which may be comprised in one session or in two or more sessions, and if the expiry of that period, Parliament makes any modification in the rule or directs that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be. ( 4. ) Turning to the relevant rules, I may refer to Rule 9 which prohibits the removal of any excisable goods from the place at which it is manufactured until the excise duty leviable thereon has been paid in the manner provided in the rules. Provision was, however, made for storing in an approved warehouse the goods without payment of duty. Similarly, removal on part-payment of duty was also provided for in Rule 49. There is also provision for an account current of the duties to be maintained by the manufacturer by virtue of which goods may be removed regularly, provided that sufficient deposit is kept in the account to cover the duty payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry for assessment and collection of excise duty was essentially a legislative function, and the Legislature has abdicated this function by leaving it entirely to the rule-making power of the Central Government, without giving any guidance in the Act. He used the word assessment in its comprehensive sense, as including the whole procedure for imposing liability upon the taxpayer, as pointed out by the Privy Council in Commissioner of Income-tax. Bombay v. Khemchand Ramdas, (1938) 65 Iml App 236 at p. 247: (AIR 1938 PC 175 at p. 179). 2. The rules have been so framed as to practically deny the assessees a reasonable opportunity of being heard whenever there is a dispute about the amount of duty payable, and hence the rules impose an unnecessary and unreasonable restriction on freedom of trade and thus offend Article 19(1)(g) of the Constitution and are not saved by Clause (6) of that Article. 3. The action of the Central Government in refusing to give a personal hearing to the petitioner in respect of the revision application and merely allowing the petitioner to submit a written representation was tantamount to refusal to give a hearing, and consequently violates the rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from thus giving some guidance as aforesaid, the Legislature took special care in the proviso to Section 38 of the Act to require that all the rules shall be laid before Parliament in session and that the Parliament may make any modification in the rules. Thus if cannot be said that the Parliament completely abdicated its functions as far as collection of excise duties is concerned. ( 9. ) I may in this connection refer to the observations of their Lordships of the Supreme Court in the well known Kerala Education Bill case, 1959 SCJ 321 at p. 344: (AIR 1958 SC 956 at p. 976) where the rule-making power conferred by Clause 36 of the Bill was challenged. Their Lordships referred to Clause 37, which required the rules to be placed before the Legislature, and observed that this requirement made it clear that the rules owe their efficacy to the tacit assent of the Legislative Assembly itself . Their Lordships further observed that the Legislature had not abdicated its function. Again, in Express Newspaper Ltd, v. Union of India, AIR 1958 SC 578 at p. 635 their Lordships pointed out that if the statute requires the rules made under it to be placed before the Legislature, the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of goods the assessee may apply for assessment in the prescribed form, and the officer may thereupon assess the amount of duty on the goods. It was urged that within such a short period of twelve hours it will not be possible for any assessee to adduce all available evidence in support of his contention, and that, consequently, there is unreasonable restriction on trade. This argument overlooks the significance of the words at least occurring in Rule 52. There seems no bar in the rule to the assessee applying several days before the actual day on which he intends to remove the goods. It is true that Rule 9 permits the storing of goods in a warehouse or other approved places without payment of duty. But this .s a provision for the benefit of the assessee and the rules do not say that the assessment should be made only a day or two before the date of intended removal of goods. If the assessee feels that disputed questions regarding assessment arise, there is no bar to his submitting the application in the prescribed form several days before the date of intended removal, thereby providing adequate opportunities to him to adduce all available evidence in support of his contention. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hstand ing the use of the permissive expressions, such as, as he thinks fit , may at his discretion , etc., a power conferred by a statutory rule may be imperative if it is conferred on public servants for performance of public duties. Even if it is assumed that the exercise of these powers is discretionary, there is no reason to presume that they will be exercised arbitrarily or capri ciously with a view to impose undue restraint on movement of manufactured goods. Even if the lower Excise Authorities exercise the discretionary power unreasonably, there is tb.c appellate authority acting under Section 35, or the revisionaf authority acting under Section 36, to correct the wrong exercise of discretion. It will be noticed that the appellate and revisional power is conferred not only against any deri sion of the lower authority, but also against any order , which will include not only final orders but even interlocutory orders. In my opinion, therefore, the argument that the rele vant statutory rules impose unreasonable restrictions on the freedom of trade, or they, in substance, deny the assessee a reasonable opportunity of fair hearing where there is a disputed question of fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no difference between the power conferred on the Central Government by Rule 59 of the said rules and the power conferred on that Government under Section 36 of the Act. I have already held that even the assesing officer has to act quasi-judicially, and it necessarily follows that the appellate authority exercising powers under Section 35 and the Central Government exercising powers of revision under Section 36 must also act quasi-judicially and give the petitioner a reasonable opportunity of being heard. The necessity of hearing in this case arises mainly because the question as to when the manufacture of a wireless set is complete is a mixed question of law and fact, depending on the construction of the expression manufacture as given in Section 2(f) of the Act and on what is known to the consumers and the commercial community as wireless set (see in this connection paragraph 13 at p. 794 of AIR 1963 Supreme Court 791). The petitioner must be given a reasonable opportunity to prove by affidavits or otherwise (as was done in the aforesaid Supreme Court case) its contention that the disputed 1186 radio sets, or some of them, at any rate, were completely manufactured prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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