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TMI Blog2009 (6) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... export production by the Export Oriented Units (EOUs), Units in the Special Economical Zone (SEZ) and Units in the Export Processing Zone (EPZs) at "zero paise" per Kg. According to the petitioner 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 petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 3. 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. It is pointed out by Sri. Bechu Kurian Thomas, learned counsel for the petitioner, that till 1960 the liability to pay excise duty under Section 12(1) was on the owner of the estate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bber Board to levy and collect cess either from the owners of the estates or from the manufacturers, without specifying the circumstances under which it should be imposed on one or another. In Jullunder Rubber Goods Manufacturers' Association v. The Union of India and Another [1969 (2) SCC 644] the hon'ble Supreme Court, discarding all the above contentions, held that the incidence of charging excise duty certainly falls on production and sub-section (2) provides only a method of collection either from the producer of the Rubber or from the manufacturer who uses it. Further it is held that so long as the law provides the method of collection it can be provided with guidance by fixation of rate and it was noticed that under the Rules framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence. 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, is the contention. 7. In the counter affidavit of respondents, it is contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing corresponding amendment brought in to the statute, through an executive order or even through a subordinate legislation. It is held by the Hon'ble Supreme Court in Delhi Development Authority and Another v. Joint Action Committee, Allottee of SFS Flats and Others [2008 (2) SCC 672] that; "An executive order turned upon a policy decision is not beyond the pale of judicial review. Whereas the Supreme Court may not interfere with the nitty-gritty of the policy, or substitute one by the other but it will not be correct that the court shall lay its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the Supreme Court would not be without jurisdiction as it is subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith. 9. In the instant case Ext. P1 is not even a subordinate legislation, but only an executive order, is the contention of the petitioner. Therefore as long as it is contrary to the provisions of the Act and as long as the Act does not provide power to the Government for such a notification, it is totally invalid. 10. Considering the rival contentions evaluated on the basis of the settled legal precedence cited above, the following conclusions can be arrived in this case. The fixation of "Zero paise per kilogram" as duty of excise leviable from certain class of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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