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TMI Blog2000 (4) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... In holding whether a relevant rule to be ultra vires it becomes necessary to take into consideration the purpose of the enactment as a whole, starting from the preamble to the last provision thereto. If the entire enactment is read as a whole indicates the purpose and that purpose is carried out by the rules, the same cannot be stated to be ultra vires of the provisions of the enactment. Therefore, it is made clear that the manufacturers, if they have availed of the procedure under Rule 96ZO(3) at their option, cannot claim the benefit of determination of production capacity under Section 3A(4) of the Act which is specifically excluded. .On the reasoning adopted by us and bearing in mind that in taxation measures composition schemes are not unknown and when such scheme is availed of by the assessee it is not at all permissible for him to turn around and ask for regular assessment, we think, there is no substance in the contention urged on behalf of the respondents. Appeal allowed. - 4998 of 1999 - - - Dated:- 5-4-2000 - S. Rajendra Babu and S.N. Phukan, JJ. [Judgment per : Rajendra Babu, J.]. - These appeals are filed under Section 35L(b) of the Central Excise Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O and not on the basis of annual capacity of production can make an application for determining the actual production during the period his aforesaid option is in operation ? 4.An objection has been raised that these appeals do not involve determination of any question having a relation to the rate of duty of excise or to the value of the goods for purpose of assessment and, therefore, even if at all aggrieved by the order of the Tribunal ought to have followed the procedure in Section 35L(a) of obtaining a reference to the High Court and on its decision to approach this Court under certificate. The learned Attorney General without entering into the controversy as to whether an appeal in this case is maintainable or not made it clear that he would seek conversion of these appeals into petitions for grant of special leave under Article 136 of the Constitution of India. Appropriate applications in this regard have also been made. 5.When the wind out the sails set in by the respondents has been taken of by the fair stand of the learned Attorney General, the learned Counsel for the respondents addressed arguments that these are not fit cases where this Court should exercise its dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed in the normal mode under Section 3A(4) of the Act and such a course is not available to him. In these circumstances, when different Benches of the same High Court have taken different views and another High Court has taken a view contrary to what has been stated by the Tribunal and when there is uncertainty as to the state of law, it is eminently proper for this Court to grant leave in such a matter and settle the legal position. We thought over the matter as to whether we should ourselves consider the questions raised before us or set aside the order impugned before us and remand the matter to the Tribunal for a fresh consideration. We are of the view that when there is uncertainty in law so far as the High Courts are concerned, it is not at all proper to allow the Tribunal to re-examine the matters as it would not be in the interest of either the assessee or the Department. In this special background, we do not think we can accede to the objection raised on behalf of the respondents that we should not entertain the special leave petitions and reject these matters. On the other hand, we would grant leave and proceed to deal with these appeals. 7.In these proceedings the val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ousand whichever is greater. Sub-rule (2) thereof provides that if no ingots and billets are produced for a continuous period of seven days, the manufacturer may claim abatement by following appropriate procedure. Sub-rule (3) thereof envisages a composition method of payment of duty. Manufacturers of ingots and billets with furnace capacity of 3 tonnes have an option of paying duty of Rs. Five lakhs per month in two equal instalments prior to 15th of a month and by last date of that month. Such payment is treated to be in full discharge of duty liability. The Rule specifically excludes application of Section 3A(4). But manufacturers opting for this composite scheme cannot claim abatement. If the furnace capacity is less than or more than 3 tonnes payment of Rs. 5 lakhs can be varied on pro rata basis. The manufacturer opting for this composite scheme has to give a declaration to the Jurisdictional Assistant Commissioner as provided under the Rules. There are similar provisions in relation to hot re-rolled products. By reason of the assessee having exercised his desire of paying duty based on total furnace capacity the determination of annual capacity of production is not determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. What can be seen is that the charge under the Section is clearly on production of the goods but the measure of tax is dependent on either actual production of goods or on some other basis. The incidence of tax is, therefore, on the production of goods. It cannot be said that collection of tax based on the annual furnace capacity is not relatable to the production of goods and does not carry the purpose of the Act. In holding whether a relevant rule to be ultra vires it becomes necessary to take into consideration the purpose of the enactment as a whole, starting from the preamble to the last provision thereto. If the entire enactment is read as a whole indicates the purpose and that purpose is carried out by the rules, the same cannot be stated to be ultra vires of the provisions of the enactment. Therefore, it is made clear that the manufacturers, if they have availed of the procedure under Rule 96ZO(3) at their option, cannot claim the benefit of determination of production capacity under Section 3A(4) of the Act which is specifically excluded. We find that the view taken by the Andhra Pradesh high Court in Sathawahana Steels Alloys (P) Ltd. v. Government of India (supra) an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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