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TMI Blog1970 (4) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Rules, 1944 framed under the Central Excises Act empowers the Central Government to exempt any excisable good from the whole or any part of the duty leviable on such goods. The Central Government in exercise of Powers conferred by rue 8 (1) of the Central Excise Rules and in suppression of Notification No.67/64 Central Excise dated 17-4-196 issued Notification No.75 dated 30-4-1966 reclassifying the manufacturers of matches and fixing different rates of duty for matches cleared by different categories of factories. The said notification in so far as it is relevant for our purpose reads as follows. Government of India. Ministry of Finance (Dept. of Revenue and Insurance) Notification No.75, dated 30-th April 1966. In exercise of the powers conferred by Sub-Rule (1) of Rule 8 of the Central Excise Rules. 1944 and in suppression of the Notification of the Government of India in the Department of Revenue and Company Law in the Ministry of Finance No. 97/64 Central Excise,. dated the 17th April, 1964, the Central Government hereby exempts matches specified in Column (2) of the Table below, failing under item No.38 of the First Schedule to the Central Excise and Salt Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n matches. If the actual output of such factories in category B or category C or category d of the said Table II exceeds in a financial year 4,000 million, 500 millionaire 75 million as the case may be, the duty on the entire quality of matches cleared for home consumption in that financial year shall be paid at the rate set out in Table III. TABLE - III Category according Rate of duty (per gross Condition. to Table II. boxes of 50 matches). (1) (2) (3) B ₹ 4.60 If clearances exceed 4,000 million matches. C 4.50 If clearances exceed 500 million but do not exceed 4000 million matches. D 4.40 If clearances exceed 100 million but do not exceed 500 million matches. 4.25 If clearances exceed 75 million but do not exceed 100 million matches. (5) *** *** *** (6) Any manufacturer who applied or applies on or after the 1st April 1964, for licence to manufacture matches in his factory and the rate of duty applicable for the first financial your of production has been determined in the manner laid down in Clause (4) shall in any subsequent financial year pay duty at the respective rates shown in Table IV below:- TABLE - IV. Description Rate of duty (Rs. per gross boxes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights guaranteed to the petitioners under Art. 19(1) (f) and (g) of the Constitution. Under Rule 52, unless the duty. is paid in accordance with the said Notification the goods are not allowed to be cleared. Therefore the petitioner has been paying the duty and has been leering the goods. It is contended that though the petitioner has a right of appeal and revision under section 35 and 36 of the Act against the assessment orders, those alternative remedies are not effective as the Departmental Authorities created under the Act cannot go into the constitutional validity of the Notifications of the Act or Rule or the Notification made thereunder, and has therefore, involved the jurisdiction of this Court for declaring Clause 4,6 and 7 of the Notification No.75 Central Excise D/- 30-4-66 as void and to restrain the respondents from giving effect to the aforesaid clauses and to direct refund of Excise Duty collected from the petitioner from 27-12-1966 in pursuance of the aforesaid Clauses. 4. Under the said Notification for the purpose of levy of Excise Duty matches produced by various Factories are categories on the basis of the output of the Factory during the financial year 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he following financial year i.e., 1965-66. 6. In the counter affidavit nothing further is stated to justify this discrimination than that all manufacturers that fall under clause (7) of the proviso to the said Notification are treated alike and the rate prescribed has a reasonable nexus to the object sought to be achieved We are unable to agree. The factories which fall within category 'D' in view of their output during the financial year 1964-65 constitute a single class even according to the notification, Once the categorization of factories for the purpose of levying excise duty on matches produced by them is made on the basis of their output, it is rather difficult to understand the basis of discrimination made by clause (7) of the proviso. As a result of that clause Factories similarly placed are made libel to pay higher duty merely because during the financial year 1964-65 such factory similarly placed did not clear any matches. If the categorization is intended to levy duty commensurate with the capacity of production and higher excise duty is leviable on matches produced by bigger factories. then the levy of a higher duty on a factory which has not been able to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the other hand factories of the same category clearing the same quantify of matches during the same period, if they had applied for a license earlier than 1-4-64, they would be entitled to clear the matches by paying duty only at ₹ 3-75 or ₹ 3-00 per gross as provided in Table I. This difference in the duty payable by factories of the same categories for the same goods during the same period is made to depend solely on the fact whether licence for the factory was applied before or after 1-4-64. For this discrimination also there appears to be no reasonable basis. All that is stated in the counter affidavit is that they year 1964-65, was adopted as the base year as the Tariff Commission had recommended the rates of duty mentioned in Table I of the Notification. That may be a justification for categorizing the factories into A.B.C. and D on the basis of their respective production in the year 964-65. This categorization made in Table I is not impugned in this petition as violative of Article 14. In the fact that classification is accepted as valid and the exclusion of factories falling under Category 'D' of Table I from that category and not allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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