Gujarat High Court
M/S vs Union on 3 September, 2010
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SCA/6458/2009 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6458 of
2009
=========================================================
M/S
DADA ASSOCIATES & 1 - Petitioner(s)
Versus
UNION
OF INDIA & 1 - Respondent(s)
=========================================================
Appearance
:
M/S
TRIVEDI & GUPTA for
Petitioner(s) : 1 - 2.
None for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 03/09/2010
ORAL
ORDER
(Per : HON'BLE SMT. JUSTICE ABHILASHA KUMARI)
1. The instant petition under Article-226 of the Constitution of India has been filed with the following substantive prayers:-
(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ or order holding and declaring that the communication dated 9.7.2008 with respect to Demand Notice dated 23.7.2004 for Rs.8,53,000/- for the period 1999-00 to 2002-03 is unjustified, erroneous, unauthorized, unsustainable in law and facts as well as violative of Articles 14 and 19(1)(g) as well as 265 and 300-A of the Constitution of India;
(B) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction quashing the impugned communication dated 9.7.2008 with respect to Demand Notice dated 23.7.2004 for Rs.8,53,000/- for the period 1999-00 to 2002-03;
(C) Your Lordships may be pleased to issue an appropriate writ, order or direction, holding and declaring that the petitioners are not liable to make payment of cess under provisions of the Act and the levy of and/or demand for the said cess by the respondents is without authority and jurisdiction and unconstitutional;
2. The petitioner No.1 is an undertaking which is, inter-alia, engaged in the business of dyeing and bleaching/processing of fabrics made in powerloom industries. For the said purpose, the petitioner has his own establishment and infrastructure for processing the same.
3. The challenge in the present petition is to the legality, propriety, validity and maintainability of communication dated 09.07.2008 with respect to Demand Notice dated 23.07.2007 for Rs.8,53,000/-, for the period from 1999-2000 to 2002-2003. According to the petitioners, the said communication is unsustainable in law and on facts, and following issues arise for consideration of the Court:-
(a) Whether the respondents are right and justified in importing the expansive definition of the term manufacture defined in a different statute (viz. Central Excise Act, 1944)while acting under and deciding a matter under another statute (viz. Textiles Committee Act, 1963) and in applying such expansive definition and meaning to hold that the petitioner, who is merely processing fabrics/cloth manufactured by powerloom industry is manufacturer of textiles ?
(b) Whether the levy and demand of cess by the respondents will not amount to double taxation i.e. once at the stage when the fabric is manufactured by the manufacturer of fabric/cloth and again at the stage when the same fabric/cloth is merely processed (i.e. dyed for bleached) on job work basis by the petitioner ?
(c) When the Textiles Committee Act uses the phrase manufacture of textiles and also separately defines the term textiles whether the respondents are justified in divorcing the term textiles and importing the definition of the term manufacture from other statute and holding that the petitioner as manufacturer when the petitioner, undisputably, does not manufacture textiles ?
(d) Whether the action of concerned respondent in levying cess under provisions of Section 5A of the Textiles Committees Act, 1963 (hereinafter referred to as 'the Act') from a processor like petitioner No.1 who does not manufacture textiles or textile machinery, but only processes fabrics manufactured by powerloom industry, is not illegal and without jurisdiction, since the said provisions provide for levy of cess on textiles and textile machinery manufactured in India ?
(e) Whether the action of concerned respondent in levying cess under provisions of Section 5A of the Act is not against the provisions of Articles 14, 19(1)(g), 265 and 300A of the Constitution of India, illegal and without jurisdiction when the petitioner No.1 merely processes fabrics manufactured in powerloom industry only, and the proviso to Section 5A(1) of the Act specifically provides that the said cess shall not be levied on textiles manufactured from out of handloom or powerloom industry ?
4. At the outset, Mr. Uday Joshi,learned advocate for the petitioners submits that the issues involved in the present petition are now squarely covered by the judgment of this Court in Shree Jagadamba Textiles Private Limited Vs. Textiles Committee, reported in (2010)2 GLH 201.
5. Having heard the learned advocate for the petitioners and having perused the averments made in the petition as well as the judgment in Shree Jagadamba Textiles Private Limited(Supra), there is no dispute regarding the fact that the issues involved in the present petition, have now been decided by the said judgment, in favour of the Revenue and against the Assessee.
6. In view of the above, the prayers made in the petition cannot be accepted. The petition, therefore, stands rejected for reasons stated in Shree Jagadamba Textiles Private Limited(Supra).
[HARSHA DEVANI, J.] [SMT. ABHILASHA KUMARI, J.] Safir* Top