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TMI Blog1980 (4) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... hich Mr. Vakil has raised to the maintainability of these petitions. According to him these petitions are not maintainable because the petitioners have been merely directed to take out licence under the Central Excises and Salt Act, 1944. According to him, such a direction does not give rise to a cause-of-action which can maintain these petitions. Secondly, he has argued that appeal against such a notice lies to the Collector, Central Excise, under Section 35 of the Central Excises and Salt Act, 1944. It would have been better if the petitioners had exhausted the remedy of appeal. But merely because they have not exhausted the remedy of challenging the impugned notice in appeal under Section 35, it cannot be said that these petitions are not maintainable because failure or omission on the part of the petitioners to take out the licence leads to prosecution against them. Secondly, if these articles which they have been manufacturing are not excisable articles, then there is no obligation whatsoever on them to take out the licence. If, therefore, a notice has been served upon a petitioner to do a certain thing or to desist from doing a certain thing and if that notice has no foundati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me being by the Central Government in exercise of its power under Rule 8(1) of the Central Excise Rules. Thus an article which is otherwise excisable is exempted from payment of excise duty by issuing a notification under Rule 8(1) of the Central Excise Rules, 1944. The removal of liability to pay excise duty in such a case is only temporary and can be revived at any time by withdrawing the notification. Exemption from payment of excise duty under a notification issued under Rule 8(1) is very much different basically and qualitatively from the statutory exemption from payment of excise duty granted under the statute. If the statute grants the exemption in respect of a particular article; that article is not excisable at all. If the notification issued under Rule 8(1) grants exemption, then though the article is excisable, liability to pay excise duty is removed for the time being. Therefore, the principle laid down in the aforesaid decision has no application to the instant case. 5. The principal contention which Mr. Bhatt has raised in support of the petitions is based upon the conjoint reading of Item 22D and Item 68 in the First Schedule to the Central Excises and Salt Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Item 22D in the First Schedule to the Central Excises and Salt Act, 1944, intended to include them for the purpose of taxability in the residuary item - Item 68. On first principles, it is difficult to imagine that what has been expressly excluded from taxability under Item 22D is included in the residuary item as if the Parliament wanted to do it by back-door. The language of Item 68 also does not permit us to adopt the construction which Mr. Vakil has advanced before us and, according to which, whatever is not specified in the preceding items or whatever has been specified therein for exemption is included for taxability in the residuary item. The expression which has been used in Item 68 is "not elsewhere specified". Does this expression necessarily mean "not elsewhere specified" for the purpose of taxability, or does it mean "not elsewhere specified" either for the purpose of taxability or for the purpose of exemption ? In our opinion; the simple expression "not elsewhere specified" which the Parliament has used in Item 68 means total omission or failure to specify either for the purpose of taxability or for the purpose of exemption from taxability. Once an article or goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said notification, "articles" of hosiery which have been enjoying a statutory exemption under Item 22D will not enjoy that exemption by virtue of the fact that they are said to be included in the residuary item. Therefore, whatever has been exempted by an administrative notification will continue to remain exempted and what has been exempted statutorily will cease to be so exempted. We do not think we can place such a construction upon Item 22D. Though we have supported our conclusion by certain analogies, the view which we are expressing is basically rounded upon the construction of expression "NOT ELSEWHERE SPECIFIED" used in Item 68. According to us, that expression means not elsewhere specified either for the purposes of taxability or for the purpose of exemption. In other words, in order to attract Item 68, there must be a total omission of specification of goods in any of the Items preceding Item 68. 8. Mr. Bhatt has invited our attention to certain principles of construction of statutes. In P.V. Naik and others v. State of Maharastra and others - AIR 1967 Bom. 482, a Division Bench of the Bombay High Court was dealing with a case under Maharashtra Zilla Parishad and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and indefensible. If a special provision is applicable, than a general provision in respect of the same subject matter cannot apply because the special provision carves out an exception inasmuch as special treatment is given to the subject-matter of the special provision. In the instant case, to say that both Items 22D and 68 come into play is to place them in juxtaposition with the object of contradicting them and of nullifying the special provision. Such an interpretation will militate against all canons of construction. 10. The last argument which Mr. Vakil has raised is that the expression "NOT ELSEWHERE SPECIFIED" has been used in several items in the First Schedule to the Central Excises and Salt Act, 1944. He has in that behalf invited our attention to Items 1B, 9, 14, 18B, 22A, 22AA, 22B, 33B, 33C, 34A, 37A, 46 and 68. The expression "not elsewhere specified" used in all these items except Item 68 indeed refers to residuary items belonging to the particular groups. All these Items indeed provide for the taxability of the residuary items falling under those groups. But, merely because they so provide, we cannot say that express statutory exemption granted to "articles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in that decision has been made to the earlier unreported decision of that Court in Ram Lal and Brothers v. Commissioner of Sales Tax, U.P., in which it has been held that "hosiery" means an underwear or underclothing, i.e., articles which are used next to the skin. The Allahabad High Court in that decision has also referred to the decision of the Rajasthan High Court in Jaipur Hosiery Mills v. State of Rajasthan, (1967) 19 Sales Tax Cases 416. The Rajasthan High Court has in that decision held that "hosiery" means machine-knitted garments. 12. We are, therefore, not impressed by the arguments which Mr. Vakil has raised before us. We are of the opinion that "Banians" and "Jangias" which are "articles of hosiery" are statutorily exempted from payment of excise duty under Item 22D and, therefore, do not attract any provisions of the Central Excises and Salt Act, 1944, and we declare accordingly. 13. In some of these petitions, applications for amendment have been made. The principal contention which the petitioner. seek to raise by the proposed amendments relates violation of Article 14 of the Constitution. In light of the view which we have expressed, it is not necessary to g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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