Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Laws/2011-12/1433

Validity of Notification issued by Government without power granted by Statute

Case: Rubfila International Ltd. versus Union of India
 
Citation: 2011 (270) ELT 159 (Ker.)
 
Issue:- Notification issued by Government without any power conferred by the Statute will not be legal and valid.
 
Brief Facts:- Petitioner is a public limited company engaged in manufacture of heat resistant Latex Rubber Threads. Petitioner is an ap­proved exporter of the said product. They are challenging the validity of Ext. P1 Notification issued by the Union of India fixing the rate of cess on the Rubber produced in India and procured for export production by the Export Oriented Units (E0Us), Units in the Special Economical Zone (SEZ) and Units in the Export Processing Zone (EPZs) at "zero paise" per Kg in this writ petition.
 
Petitioner’s Contention:- Petitioner contended that through Ext. P1 an exemption from payment of 'Rub­ber Cess' is granted to certain industries based on the locality where such indus­tries are set up and such an exemption is granted in violation of Article 14 of the Constitution of India. Further, it is issued by the Central Government without there being any power derived under the Rubber Act, 1947. If the Units engaged in export of Rubber products, such as EOUs, Units situated at SEZs and EPZs are made eligible for such an exemption, there is no reason for denying such exemp­tion to the petitioner, who is also doing export of Rubber products.
 
Petitioner pointed that till 1960 the liability to pay excise duty under Section 12(1) was on the owner of the estate in which rubber is produced. But by an amendment to Section 12(2), the liability for payment was extended also to the manufacturer by whom such rubber is used. As per the amended provision the Rubber Board shall collect the duty either from the owner of the estate on which rubber is produced or from the manufac­turer by whom such rubber is used. It is specifically pointed out that the inci­dence of taxation as prescribed under Section 12(1) is on production of the rubber within the country. The wording of Section 12(1) is to the effect that the cess shall be levied as a duty of excise on all rubber produced in India. Merely because the liability has been extended also to manufacturers, apart from the owners of the estate, the nature of levy or the incidence of taxation is in no way affected.
 
The following cases are relied upon:
 
- Jullunder Rubber Goods Manufacturers' Association v. The Union of India and Another [1969 (2) SCC 644]
- State of Kerala v. Madras Rubber Factory Ltd. [1998 (1) SCC 616]
 
Based on the above cases, Petitioner submitted that the Rubber Cess is not an excise duty attached to the manu­facturers on their production, but it is the duty leviable on Rubber produced in the country. The duty of excise so collected being an amount credited to the 'Consolidated fund of India', and being paid by the Central Government to the Rubber Board for utilization for the purposes of the Act, the exemption granted to a group of manufacturers from payment of such duty is totally beyond the scheme of the Act, and it is totally lacking competence.
 
It is contended that fixa­tion of "Zero paise per Kg" as rate of cess in Ext. P1, is virtually an exemption granted from payment of cess to certain manufacturers. It is evident from usage of such terms that the Central Government is aware about its inability to exempt any group of manufacturers. So the attempt is clear, that it is indirectly providing exemption to certain groups from payment of cess, which the Government can­not do directly. It is settled principle of law that the Government cannot do something which they could not do directly by any indirect means or method. Therefore the exemption granted through Ext. P1 is totally unsustainable.
 
Respondent’s Contention:- Revenue contended that Ext. P1 is intended at promotion of export of industrial rubber, which is hitherto been an import substitute, and it is intended to develop India as a regular exporter of this commodity. It is stated that the notification was issued as a sequal to the Gov­ernment's "Export and Import (EXIM) Policy" order to boost export of rubber products and there is no discrimination in taking such a policy and it is not viola­tive of Article 14 of the Constitution of India. It is contended that the benefit un­der the notification is allowed only to EOUs and units in EPZ and SEZ, which are 100% EOUs. The SEZs are deemed to be foreign territory for the purpose of trade operations, duties and tariffs as per Chapter VII of the new EXIM Policy. Thus these units are separate category and cannot be treated on par with other units engaged in manufacturing of rubber products for domestic consumption. The impugned notification is issued pursuant to economic policy of the Government to promote export of rubber products in the larger public interest and therefore the policy is not contrary to law or in any way main fide or illegal. Hence it is not appropriate to the court to go into the wisdom of the advisability of the economic policy of the Government that there being any such power provided under stat­ute, is the contention.
 
Reasoning of Judgment:- The High Court noted that the Ext. P1 Notification was issued in exercise of power conferred on the Union Government by sub-section (1) of Section 12 of the Rubber Act, 1947.

Under Section 12(1) the Central Government is authorised (1) to fix the ap­pointed day from which the levy of cess is to be collected, and (2) to fix the rate at which the duty of excise (cess), not exceeding two rupees per kilogram of rubber produced, is to be collected. Beyond the above quoted two specific powers, Sec­tion 12(1) does not confer any power on the Central Government to give exemp­tion to anybody or to any class of manufacturers who are using rubber, or ex­porting Rubber products, from payment of such duty of excise (cess).
 
As per Section 12(7) of the Act, the duty of excise so collected, re­duced by cost of collection as determined by the Central Government, shall first be credited to the 'Consolidated funds of India', and then be paid by the Central Government to the Board for being utilised for the purpose of the said Act, if Par­liament by appropriation made by law in this behalf so provides.
 
Reliance was placed on the following cases: -
 
-DelhiDevelopment Authority and Another v. Joint Action Committee, Allottee of SFS Flats and Others
- P.J. Irani v. State of Madras (AIR 1961 SC 1731)
- Bombay Dyeing and Manufacturing Co. Ltd. v. Bom­bay Environmental Action Ground and Others [2006 (3) SCC 4341
 
It was held that the fixation of "Zero paise per kilogram" as duty of excise leviable from certain class of manufacturers as Rubber cess will clearly amount to granting of exemption. It is evident that fixation of "Zero paise" is only an indirect method of granting exemption, which the Government knows that they could not do di­rectly. The question whether the Central Government has got competence in is­suing an order exempting certain class of manufacturers from payment of excise duty as Rubber cess, can be answered only on the negative. It is evident from Ext.P1 that the Government themselves admitted that they had issued such a notification only by virtue of power conferred under Section 12(1) of the Act. But it is clear and evident that Section 12(1) of the Act does not empower the Gov­ernment from issuing any order granting exemption to any category of estate owners or manufacturers from payment of the duty of excise. No other provision in the Act empowers the Government from granting such an exemption. Therefore Ext. P1 is issued beyond the power and competence of the Govern­ment and hence it is not sustainable.
 
On the issue that whether the Government is right in issuing such a notification in promotion of the "EXIM Policy"; it was held that it is settled law that a policy decision cannot be permitted to contradict the provisions of the statute or its legislative object. Therefore the exemption granted through Ext. P1 which is in violation of the provisions of the Act, and its legislation object could not be held valid, even if it is issued as a policy decision taken by the Govern­ment.
 
Decision:- Appeal allowed.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com