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TMI Blog1960 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... tions and numbered as O.Ps. 180, 180(A), 180(B), 180(C) of 1959. The petitioners are four firms, which carry on business, in different names, of extracting vegetable non-essential oil. As per item 23 in Schedule I of the Central Excises and Salt Act of 1944, referred to hereafter as the "Act", a duty at the rate of Rs. 112/- per ton, is imposed on such oil cleared by a manufacturer. But S. 37(2) (xvii) of the Act has provided, that rules may be enacted by the Central Government so as to `exempt any goods from the whole or any part of the duty imposed" by the Act. Accordingly by Rule 8 of the Central Excise Rules, 1944 the Central Government is authorised to exempt from time to time by notification in the Official Gazette, any excisable good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, was only upon the aforesaid quantity of 125 tons. On the merits of Exts. P1 to P4, the question is, whether the respondent was right in treating the partners, as distinguished from the firm constituted by them, as manufacturer within the intendment of the notifications, for Exts. P1 to P4 have proceeded upon the footing, that each partner in the firm, is by himself a manufacturer. At the same time, the notices have not given full scope to this construction, by allowing to each of the partners of a firm, the benefit of the exemption on his account, but have limited it only to those partners who are common to more the one firm. This is neither here nor there. 2. Far from supporting notice on their merits, the learned Counsel for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Samanta v. State, A.I.R. 1953 Calcutta 476, the question arose whether a firm can be deemed to be a `person' within the scope of the explanation to S. 7(2) of the Essential supplies (Temporary Powers) Act, 1946, under which, if each partner was to be taken as a person, he may hold foodgrains up to ten maunds, and the two partners constituting a firm may lawfully hold up to twenty maunds, and thereby escape liability for the penal consequences, while if the firm was to be considered as a person, it would be liable for holding more than ten maunds. The definition of the word 'person' in S. 3(42) of General Clauses Act, 1897, as including any "association or body of individuals whether incorporated or not was adopted for holding, that "a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices issued, are alone the subject of challenge. If in applying the terms of the notification, the Authority acts outside its scope, such action cannot be deemed to be in pursuance of a law, which is saved by Article 19(6). It is plain, that a restriction which cannot be founded upon a law within the exception in Article 19(6), must per se constitute an infringement of the fundamental right under Article 19(1)(g), Exts. P1 to P4 being outside the scope of the notifications are not saved by them, and this court would be acting properly in interfering under Article 226, notwithstanding any alternative remedy which the petitioners may have under the Act. The learned Counsel drew my attention to the decision of the Madras High Court in A.R. K ..... X X X X Extracts X X X X X X X X Extracts X X X X
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