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TMI Blog2007 (7) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... cessive. t the petitioner has failed to highlight any cause of action to entertain the second writ petition and for giving any declaration as sought for. There is nothing on record to suggest that on any particular day, at a particular time, district authorities or the Superintendent of Police, Kanyakumari District, or any officer empowered under Act, 1937 or Rules, 1984, visited the premises of the petitioner or any other ayurveda drug manufacturer. In these circumstances, and in absence of cause of action, this Court is not deciding the issue as raised in the second writ petition. W.P.s dismissed. - 3260 & 3261 of 2004 - - - Dated:- 26-7-2007 - S.J. Mukhopadhaya and K. Suguna, JJ. [Order per : S.J. Mukhopadhaya, J.]. - Both the writ petitions have been preferred by common petitioner, they were heard together and disposed of by this common judgment. In W.P. No. 3260/04, the petitioner sought for a declaration that levy of 4% ad valorem rate of duty in respect of Clause 2(i) of preparations in the schedule appended to the Medical and Toilet Preparations (Excise Duties) Act, 1955, (hereinafter referred to as 'M TP Act), as amended by Finance Act, 2000, is null and v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han 100 L-2 licences issued under the M TP Act have been cancelled, renewal refused and application for fresh licence rejected by the District Collector of Kanyakumari as a policy. 3.It appears that the petitioner and 6 others earlier preferred writ petitions, W.P. Nos. 1294 to 1300/04 to forbear the respondents from requiring manufacturers for sale of unrestricted ayurveda preparations to take out an L-2 licence under M TP Act and Rules framed thereunder, as it is not necessary for them, being not dutiable goods u/s 2(c) and clause 2(i) of the Schedule to M TP Act, providing 'Nil' duty for them. According to the petitioner, a conflicting decision was rendered in one writ petition; in W.P. Nos. 7958 and 7959/82, by judgment dated 30th March, 1990, this Court held in para-6 that unrestricted preparations are not liable to duty, but in W.P. Nos. 16133/91 and 2870/92, by judgment dated 17th April, 2000, in para-11, it was held that they are liable to duty. By an order dated 20th Oct., 2004, W.P. No. 1294/04 and the other cases were referred to a Division Bench, but in the meantime, amendment having been made providing rate of duty against clause 2(i) from 'Nil' duty to a levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, the duties aforesaid shall be collected in such manner as may be prescribed. Explanation. - Dutiable goods are said to be manufactured in bond within the meaning of this section if they are allowed to be manufactured without payment of any duty of excise leviable under any law for the time being in force in respect of alcohol, [narcotic drug or narcotic] which is to be used as an ingredient in the manufacture of such goods." Charging Section 3 is not under challenge nor the schedule described thereunder. Clause 2 of Schedule relates to medical preparation in Ayurveda, Unani or other indigenous systems of medicine and under which clause 2(i) relates to rate of duty prescribed for medicinal preparation containing self-generated alcohol not capable of being consumed as ordinary alcoholic beverage. Clause 2(i) of the Schedule is also not under challenge in the present case, except the 4% ad valorem duty of excise so imposed. The relevant amendment as made under clause 2(i) of the Schedule reads as follows :- 2 Medicinal Preparations in Ayurvedic, Unani or other Indigenous systems of medicine — (i) Medicinal preparations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 4% ad valorem duty prescribed for medicinal preparation under clause 2(i), on the ground that it is excessive. In this regard, we have noticed the ad valorem rate of duty as levied for other medical preparations containing alcohol. In respect of Allopathic medicinal preparations and for similar medicinal preparations containing alcohol, which are not capable of being consumed as ordinary alcoholic beverage, 20% ad valorem duty has been prescribed under the same schedule of the M TP Act. There are other medicinal preparations for which much more than 4% ad valorem rate of duty has been prescribed and, thus, 4% ad valorem duty, as prescribed vide amended clause 2(i) of Schedule, cannot be held to be arbitrary or excessive. 8.So far as the second case, W.P. No. 3261/04 is concerned, according to the counsel for the petitioner, the provisions as laid down under the Tamil Nadu Prohibition Act, 1937 (hereinafter referred to as 'Act, 1937') and the Tamil Nadu Spirituous Preparations (Control) Rules, 1984, (hereinafter referred to as 'Rules, 1984') in respect of restricted preparations and spirituous preparations cannot be made applicable to ayurveda drug manufacturers for im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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