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1989 (1) TMI 122 - SC - Central ExciseWhether "processing" of the kind concerned in these cases amounts to "manufacture"? Whether the provisions of section 2 of the Amending Act which impart an artificial dimension to the concept of "manufacture" is ultra vires entry 84, List I? Whether, at all events, the imposition of a tax on such "processing" is referable to entry 97, List I ; and if the impost on the processors is justified under tariff items Nos. 19 and 22, according as whether the grey fabric is cotton or "man-made", what should be the assessable value for purposes of levy of duty so far as the processors are concerned ? Held that:- On a consideration of the matter, we are persuaded to think that the view taken in Empire Industries' case [1985 (5) TMI 53 - SUPREME Court] that "grey fabric" after it undergoes the various processes of bleaching, dyeing, sizing, printing, finishing, etc., emerges as a commercially different commodity with its own price structure, custom and other commercial incidents and that there was in that sense a "manufacture" within the meaning of section 2(f), even as unamended, is an eminently plausible view and is not shown to suffer from any fallacy. Indeed, on this point, the referring Bench did not disagree or have any reservations either. It is to be noticed that if the amending law is valid, this aspect becomes academic. So far as the exclusive competence of the Union Parliament to legislate is concerned, all that is necessary is to find out whether the particular topic of legislation is in List 11 or List 111. If it is not, it is not necessary to go any further or search for the field in List I ; Parliament has exclusive power to legislate upon that topic or field. Of course, it has concurrent power also in respect of the subjects in List 111. What appears, therefore, clear is that what applies to the main levy, applies to the additional duties as well. In testing whether a retrospective imposition of a tax operates so harshly as to violate fundamental right under article 19(1)(g), the factors considered relevant include the context in which retroactivity was contemplated such as whether the law is one of validation of a taxing statute struck down by courts for certain defects : the period of such retroactivity, and the defects and extent of any unforeseen or unforeseeable financial burden imposed for the past period, etc. Having regard to all the circumstances of the present case, this court in Empire Industries' case [1985 (5) TMI 53 - SUPREME Court] held that the retroactivity of the amending provisions was not such as to incur any infirmity under article 19(1)(g). We are in respectful agreement with that view. On a consideration of the matter, the view taken in the matter in Empire Industries' case [1985 (5) TMI 53 - SUPREME Court] does not call for reconsideration.
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