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Union of India v. Paliwal Electricals

Supreme Court of India · 25 March 1996 · [1996] 3 S.C.R. 845

Court
Supreme Court of India
Decided
25 March 1996
Case no.
C.A. No. 693 of 1995
Reported as
[1996] 3 S.C.R. 845
Result
Appeal(s) allowed
Bench
Jeevan Reddy, B.P. (J)
Length
8 pages
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PETITIONER:
UNION OF INDIA
Vs.
RESPONDENT:
PALIWAL ELECTRICALS (P) LTD & ANR.
DATE OF JUDGMENT: 25/03/1996
BENCH:
JEEVAN REDDY, B.P. (J)
SEN, S.C. (J)
CITATION:
1996 SCC (3) 407 JT 1996 (3) 606
1996 SCALE (3)113

ACT

HEADNOTE

JUDGMENT

JUDGEMENTB.P.JEEVAN REDDY,J.

The Allahabad High Court has struck down Para-7 of the Exemption Notification No. 223 of 1987] on the ground of violation of Article 14 of the Constitution of India. The decision under appeal is largely influenced by and follows the decision of a learned Single Judge of the Calcutta High Court in banner and Company v. Union of India [1994 (70) E.L.T.181].

Rule 8 of the Central Excise Rules empowers the Central Government to exempt, subject to such conditions as it may specify, any excisable goods from the whole or any part of duty leviable on such goods.

By means of Notification No.175 of 1986 issued Under Rule 8 of the Central Excise Rules, exemption from excise duty was granted in favour of certain small scale industries manufacturing the goods specified in the schedule to the Notification provided their annual turnover did not exceed the limit prescribed. The relevant portions of the Notification read :

"3. Nothing contained in this

notification shall apply if the

aggregate value of clearance of all

excisable goods for home

consumptions:--

(a) by a manufacturer, from one or

more factories, or

(b) from any factory, by one or

more manufacturers, had exceeded

rupees one hundred and fifty lakh

in the preceding financial year.

4. The exemption contained in this

notification shall be applicable

only to a factory which is an

undertaking registered with the

Director of Industries in any State

or the Development Commissioner

(Small Scale Industries) as a small

scale industry under the provisions

of the Industries (Development and

Regulations) Act, 1951 (65 of

1951)...............

Explanation IV. for the purposes of

this notification, where the

specified goods manufactured by a

manufacturer, are affixed with a

brand name or trade name

(registered or not) of another

manufacturer or trade, such

specified goods shall not, merely

by reason of that fact, be deemed

to have been manufactured by such

other manufacturer or trader."

Explanation IV is of relevance. It provided that merely because the brand-name or trade-name of anther manufacturer or trader was affixed to the goods manufactured by a ’small manufacturer’ (to use a convenient expression denoting a manufacturer who is entitled to the benefit of the said Notification) such goods shall not be deemed to be the goods manufactured by such other manufacturer or trader.

The object of the notification is self-evident. It is to help that small manufacturers to service in the market which is dominated by brand-names/ trade-names. It is a matter of common knowledge that people prefer well-known brand-names. They buy them under an implicit faith that they are of reliable quality. In such a situation, a small manufacturer faces an uphill task in having his goods accepted in the market. If he prices his goods at the same level as the price of goods manufactured by a well-known brand-name, he stands no chance; he will be priced out of market in no time. It is precisely to enable him to survive him in the market that the said exemption is granted. By virtue of exemption form duty, the small manufacturer would be able to sell his goods at a cheaper price thus making them attractive in the market - and more competitive. The notification thus serves the socioeconomic objectives of helping the small manufacturers and increasing the industrial production. So far as Explanation IV is concerned, it is really classificatory in nature; it merely reiterates to principle of the decision of this Court in Union of India & Ors. v. Cibatul Limited [1985 (22) E.L.T. 302].

On September 22, 1987, Notification No. 175 of 1986 was amended by Notification No. 223 inserting Para 7 and Explanation VII therein. The inserted provisions read as follows:

"7. The exemption contained in this

notification shall not apply to the

specified goods where a

manufacturer affixed the specified

goods with a brand name or trade

name registered or not) of another

person who is not eligible for the

grant of exemption under this

notification:

Provided that nothing in this

paragraph shall be applicable in

respect of the specified goods

cleared for home consumption before

the Ist day of October, 1987.

Explanation VIII.-- Brand name or

trade name shall mean a brand name

or trade name, whether registered

or not, that is to say a name or a

mark, such as symbol, monogram

label, signature or invented word

or writing which is used in

relation to such specified goods

for the purpose of indicating, or

so as to indicate a connection in

the course of trade between such

specified goods and some person

using ’such name or mark with or

without any indication of the

identity of that person."

Now, what does Para 7 provide and why? It provides that the benefit of Notification No. 175 shall not be available to a small manufacturer, who affixes the brand-name or trade-name (registered or not) of another person, who is not eligible for the grant of exemption under the said notification. Explanation VIII defines the expressions "brand-name or trade-name". The explanatory note appended to the notification states that "(T)his amendment seeks to deny small scale exemption in respect of specified goods affixed with the brand-name/trade-name of a person who is not eligible for the exemption under Notification NO. 175/86-CE dated 1.8.86." The object underlying Para 7 is self-evident. If a small manufacturer who affixes the brand-name or tradename of an ’ineligible manufacturer’ (a convenient expression to denote a manufacturer outside the purview of Notification No. 175 of 1986 and who owns or entitled to use a brand-name or trade-name), the very reason d’etre for granting the exemption disappears. The exemption is designed to enable the small manufacturer to survive in the market in competition with the ineligible manufacturer but if he joins, or identifies himself with, the ineligible manufacturer, his goods become one with the goods or such ineligible manufacturer. They become indistinguishable. In the market, they will all be understood as one and the same goods. They no longer need the benefit under the Notification. It must be remembered that by extending the benefit of exemption, the State is foregoing public revenue to which it is entitled under the Act. The loss to public revenue is supposed to be compensated by helping along the small manufacturers to survive in the market and continue to produce. Once he becomes one with his competitor, the need for supporting crutches disappears. There is no reason why in such a case the State should forego the revenue due to it under the Act. It is the insufficient appreciation of this basic aspect that has led both the Allahabad and Calcutta High Courts astray. But before we deal with their approach and reasoning, it would be appropriate to deal with the nature and character of the power of exemption under Rule 8 of the Central Excise Rules.

The power of exemption is a potent weapon in the hands of the Central Government to regulate and manage the economy and to achieve the various social and economic objectives of the State. As observed by this Court in Union of India & Ors. v. M/s. Jalyan Udyog & Anr. [1994 (1) S.C.C. 319] dealing with Section 25 of the Customs Act which is in pari materia with Rule 8:

"It is a power given to the Central

Government to be exercised in

public interest. Such a provision

has become a standard feature in

several enactments and in

particular, taxing enactments. It

is equally well settled by now that

the power the taxation can be used

not merely for raising revenue but

also to regulate the economy, to

encourage or discourage as the

situation may call for, the import

and export of certain goods as also

for serving the social objectives

of the State [Vide Elel Hotels and

Investments Ltd. v. Union of India

(1989) 3 SCC 698, Sri Srinivasa

Theatre v. Government of T.N.

(1992) 2 SCC 643 and Subhash

Photographics v. Union of India

[(1993) Suppl. 3 SCC 323 : JT

(1993) 4 SC 116]. Since the

Parliament cannot constantly

monitor the needs of and the

emerging trends in the economy and

is in no position to engage itself

in day-to-day regulation and

adjustment of import-export trade

accordingly, power is conferred

upon the Central Government to

provide for exemption from duty of

goods, either wholly or partly, and

with or without conditions, as may

be called for in public interest.

We see no warrant for reading any

limitation into this power. If the

public interest demands that the

exemption should be absolute, the

Central Government can do so.

Similarly, if the public interest

demands that the exemption should

be granted only subject to certain

conditions. Then again if the

public interest demands that

conditions specified should relate

to a stage subsequent to the date

of clearance it can do so. The

guiding factor is the public

interest."

Though Rule 8 does not use the expression "public interest" unlike Section 25 of the Customs Act, both the powers are conceived in public interest. See the Constitution Bench decision in Orient Weaving Mills v. Union of India [A.I.R. 1963 S.C. 98 = (1962) Supp. 3 S.C.R. 481] upholding the constitutional validity of Rule 8. It is observed therein:

"The Act recognizes and only gives

effect to the well established

principle that there must be a

great deal of flexibility in the

incidence of taxation of a

particular kind. It must vary from

time to time, as also in respect of

goods produced by different

agencies..............It is a

function of the State, in order to

raise revenue for State purposes,

to determine what kind of taxes

shall be levied and in what manner.

Its function, therefore, is to

raise revenues for public purposes.

The State naturally is interested

in raising all the revenue

necessary for public purposes,

without sacrificing the legitimate

interests of persons and groups,

who deserve special treatment at

the hands of the State for reasons,

which the State may determine,

entitling them to be placed in a

special case."

We are of the opinion that while examining the challenge to an Exemption Notification under the Central Excise Act, the observations in the decisions aforesaid should be kept in mind. It should also be remembered that generally speaking the Exemption Notification and the terms and conditions prescribed therein represent the policies of the government evolved to subserve public interest and public revenue. A very heavy murder, lies upon the person who challenges them on the ground of Article 14. Unless otherwise established, the court must presume that the said amendment was found by the Central Government to be necessary for giving effect to its policy [underlying the notification] on the basis of the working of the said Notification and that such an amendment was found necessary to prevent persons from taking unfair advantage of the concession. In fact, in this cases the explanatory note appended to amending Notification says so in so many words. If necessary, the Court could have called upon the Central Government to establish the reasons behind the amendment. [It did not think it fit to do so.] It is equally necessary to bear in mind, as pointed out repeatedly by this Court that in economic and taxation sphere, a large latitude should be allowed to the Legislature. The Courts should bear in mind the following observations made by a Constitution Bench of this Court in R.K.Garg v. Union of India [1982 (1) S.C.R. 947] :

"Another rule of equal importance

is that laws relating to economic

activities should be viewed with

greater latitude than laws touching

civil rights such as freedom of

speech, religion etc. It has been

said by no less a person than

Holmes,J. that the legislature

should be allowed some play in the

Joints, it has to deal with complex

which do not admit of solution

through any doctrinaire or straight

jacket formula and this is

particularly true in case of

legislation dealing with economic

matters, where, having regard to

the nature of the problems required

to be dealt with, greater play in

the joints problems allowed to the

legislature. should feel more

inclined to The Court give judge

judgment regulation than in other

areas where fundamental human

rights are involved. Nowhere has

this admonition been more

felicitiously expressed than in

Morey v. Doud* (1957) 354 U. S. 457

where Frankfurter,J. said in his

inimitable style:

’In the utilities, tax and

economic regulation cases,

there are good reasons for

judicial self--restraint if

not judicial difference to

legislative judgment. The

legislature after all has the

affirmative responsibility.

The courts have only the

power to destroy, not these

are added to the complexity of

economic regulation, the

uncertainty, the liability to

the experts, and the number of

times the judges have been

overruled by events-self-

limitation can be seen to be

the path of judicial wisdom

and institutional and

stability. ----------------------------------------------------------- *It is true that Mory v. Daud was overruled later by the United States Supreme Court in New Orleans v. Dukes (1976) 427 U.S. 297, but the said fact does not detract from the validity of the said rule stated in Morey v. Daud nor does it in any manner affect the principle stated by this Court.

The Court must always remember

that legislation is directed to

practical problems, that the

economic mechanism is highly

sensitive and complex, that many

problems are singular and

contingent, that laws are not

abstract propositions and do not

relate to abstract units and are

not to be measured by abstract

symmetry’ that exact wisdom and

nice adaptation of remedy are not

always possible and that ’judgment

is largely a prophecy based on

meagre and uninterrupted

experience’. Every legislation

particularly in economic matters is

essentially empiric and it is based

on experimentation or what one may

call trial and error method and

therefore it cannot provide for all

possible situations or anticipate

all possible abuses. There may be

crudities and inequities in

complicated experimental economic

legislation but on that account

alone it cannot be struck down as

invalid. The Courts cannot, as

pointed out by the United States

Supreme Court in Secy. of

Agriculture v. Central Reig.

Refining Co. (1950) 94 L.ed.381, be

converted into tribunals for relief

from such crudities and inequities.

There may even be possibilities of

abuse, but that too cannot of

itself be a ground for invalidating

the legislation, because it is not

possible for any legislature to

anticipate as if by some divine

prescience, distortions and abuses

of its legislation which may be

made by those subject to its

provisions and to provide against

such distortions and abuses.

Indeed, howsoever great may be the

care bestowed on its framing, it is

difficult to conceive of a

legislation which is not capable

abused by perverted human

ingenuity. The Court must therefore

adjudge the constitutionality of

such legislation by the generality

of its provisions and not by its

crudities or inequities or

possibilities of abuse come to

light the legislature can always

step in and enact suitable

amendatory legislation. That is the

essence of pragmatic approach which

must guide and inspire the

legislature in dealing with complex

economic issues.

The same principle should hold good in the matter of Exemption Notifications as well, for the said power is part and parcel of the enactment and is supposed to be employed to further the objects of enactment - subject, of course, to the condition that the Notification is not ultra vires the Act, and/or Article 14 of the Constitution of India. (See P.J. Irani v. State of Madras A.I.R. (1961) S.C. 1731 = 1962 (2) S.C.R. 169).

We are of the opinion that the judgment under appeal is erroneous for the reason that it has not borne in mind the aforementioned relevant consideration. It is equally in error in saying that the classification it brings about - assuming that it does so - is not reasonable or that it has no nexus with the object underlying the Notification. Not only is Para 7 consistent with the object underlying the Notification, it indeed promotes it, as explained hereinbefore. We are constrained to say that the High Court has not bestowed the care and consideration which is expected of it before it strikes down such a Notification - or, for that matter, any statutory provision. For the very reason, the decision of the learned Single Judge of the Calcutta High court in Banner & Co. v. Union of India [(1994) 70 E.L.T.181] must also be held to have been wrongly decided.

Before we conclude, we must deal with one more aspect. The decision under appeal quotes extensively from, and relies upon, the decision of the Calcutta High Court in Banner and Company. The Calcutta High Court relied upon the decisions of the High Courts in Bush (India) Limited v. Union of India & Ors. [(1980) 6 E.L.T.258], Bata (India) Limled v. Aissistant Collector of Central Excise, Patna [(1978) 2 E.L.T.211], Bapalal and Company v. Government of India & Ors. [(1931) 8 E.L.T.581], Carona Sahu Company Limited v. Superintendent, Central Excise & Ors. [(1981) 8 E.L.T.730] besides the decisions of this Court in Cibatul [supra] and Joint Secretary to Government of India v. Food Specialities Limited [(1985) 22 E.L.T.324 (S.C.)]. We may briefly refer to the said decisions and see whether any of them supports the decision arrived at by Calcutta and Allahabad High Courts.

Bush (India) Limited was concerned with the meaning and scope of the definition of "manufacture" in Section 2(f) and not with any Exemption Notification, much less with the Notifications, concerned herein. The question there was whether merely by placing the Garrard Record Changer Decks on a wooden base with cover and selling it under the tradename of ’Bush Auto-Changer’, can it be regarded that a process of manufacture has taken place. It was held that mere placing of a ready-to-use article on a wooden base, with or without a cover, with a view to make it more saleable does not amount to process of manufacture within the meaning of Section 2(f). Bata (India) Limited merely says that just because ’Bata’ places it brand-name on the footwear manufactured by another, Bata cannot be treated as manufacturer of the said goods. Bapalal and Company deals with Notification No. 119 of 1975 dealing with job works and the exemption granted to job workers. The decision in Carona Sahu Company Limited is similar to the (India) Limited. We are unable to see any relevance these decisions have on the question at issue herein. We have already referred to the ratio of Cibatul. Food Specialities manufactured certain goods whereupon it affixed the brand-name of Nestle under an agreement with the latter and sold them to Nestle. The question was as to how to value the said goods. The Revenue contended that the value should be determined on the basis of wholesale price at which Nestle sold those goods. The plea was rejected by this Court holding that the wholesale price at which Food Specialities sold the said goods to Nestle should be the basis for determining the value.

For all the above reasons, we are of the opinion that the decision under appeal is unsustainable in law. For the same reasons, the decision of the Calcutta High Court in Banner and Company is also held to be wrongly decided [We are, of course, not told whether any Letters Patent Appeal was preferred against the said judgment and if so, what was the result?]

The appeal is accordingly allowed. There shall be no order as to costs as respondents though served is not represented.

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