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TMI Blog2000 (9) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... pectively. 2. On the basis of the various averments made in the affidavit as well as contentions, this Court has granted interim injunction and stay as claimed by the petitioners. Aggrieved by the interim orders, the respondents have filed application for vacation of those interim orders. In view of the fact that presently this Court is concerned with the applications for stay, injunction and the other applications filed by the respondents for vacation of those interim orders, it is not necessary for this Court to go into the various contentions raised with regard to the validity of Rule 5 of the Hot Re-rolling Steel Mills Annual Capacity Determination (Amendment) Rules, 1997, inserted by Notification No. 45/97-Central Excise (NT), dated 30-8-1997. However, for the purpose of ascertaining prima facie case, it is but, proper to refer the rival contentions. 3.I have heard Mr. C. Natarajan, Senior Counsel, Mr. A.L. Somayaji, Senior Counsel, Mr. Arvind P. Dattar, Senior Counsel, Mrs. Pushpa Seetharaman, learned Counsel for the petitioners and Mr. K. Veeraraghavan, Additional Central Government Standing Counsel. The members of the petitioner association as well as the other petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al production of the Mill during 1996-97. It is stated that a rule cannot go contrary to the Act and it has to coincide Section 3A. It is stated that the Rule 5 is ultra vires and contrary to the provisions of the Central Excise Act. It is also contended that when the object is to get more revenue based on annual capacity and when such method is permissible, the first respondent cannot go back to make the levy by actual production by invoking Rule 5. It is also stated that the first respondent had failed to take into account the relevant factors like power cuts, shortage of raw materials, labour unrest, recession in the market, etc., and Rule 5 goes contrary to the mandatory formula prescribed under Section 3A. It is further stated that when the formula is prescribed for determination of the annual production capacity, Rule 5, by deeming the production of 1996-97, is not at all relevant and the basic concept itself is defeated. 5.On the other hand, on the side of the respondent, in the counter affidavit filed by the Assistant Commissioner of Central Excise, Chennai-1, it is stated that the legislature, in its wisdom while enacting the law, clearly stipulated in Section 3A of Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue the interim orders as claimed by the petitioners. It is true that the scheme itself has been withdrawn with effect from 1-3-2000 and the levy relate to the period 1-9-1997 to 1-3-2000, prima facie I am satisfied that the amended provision was inserted only to prevent evasion of duty. 7.Further, the learned Additional Central Government Standing Counsel has brought to my notice the decision of Andhra Pradesh High Court, reported in 1999 (105) E.L.T. 550 (A.P.) (Sarwotham Ispat Ltd. v. Government of India), which relates to steel making units. The division Bench of the Andhra Pradesh High Court in similar set of facts pertaining to steel making units dismissed all the writ petitions. The perusal of the said decision supports the contention raised by the learned Counsel for the respondents. Further, as stated earlier, prima facie I am of the view that the very idea of introducing Section 3A in the Central Excise Act and in order to fulfil the said object, Rule 5 of the Rules was introduced, I am not impressed with the factual details furnished by the learned Senior Counsel for the petitioners. 8.Apart from the above aspects, it is brought to my notice that Notification Nos. 45/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise Act, 1944, along with other connected notifications. In the light of the clarification made by the respondents, the said contention of the petitioners is also liable to be rejected. 10.Under these circumstances, more particularly in the light of the order of the Hon'ble Supreme Court, dated 9-1-1990, staying the operation of the order passed by the Delhi High Court as referred above, I am of the view that the writ petitioners are liable to pay the levy as per the law in force. In this regard, it is worthwhile to refer the recent pronouncement of the Hon'ble Supreme Court, reported in (2000) 5 SCC 471, (Bhavesh D. Parish v. Union of India). In the said decision, Their Lordships, after considering constitutionality of Section 45-S of the Reserve Bank of India Act, 1934 and grant of stay of provisions of Section 45-S by various High Courts, have held in paragraphs 30 and 31 thus :- "30……… When considering the application for staying the operation of piece of legislation, and that too pertaining to economic reform or change, then the courts must beer in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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