TMI Blog2007 (3) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 226 of the Constitution of India before the learned Single Judge are as follows : A notice dated 30th January, 2002 (Annexure-P2) was issued against the Petitioner No. 1, viz. M/s. Biswanath Hosiery Mills Ltd. It was issued by the Assessing Officer appointed by the Committee established under the provisions of the Textiles Committee Act, 1963 (hereinafter referred to as the Act ). By it, the Assessing Officer afforded an opportunity of hearing to the Petitioner No. 1, viz. M/s. Biswanath Hosiery Mills Ltd., before assessment of cess payable by it in terms of Section 5A of the Act. It was indicated that for the period from 1996-97 to 2000-01 the amount of payable cess would be around ₹ 14 lakh. 3. After hearing the Petitioner No. 1, the Assessing Officer passed an order dated 5th March, 2002 (Annexure- P3 ). By the said order, the Petitioner No. 1 was directed to submit the returns and pay the cess. Such order was followed by five demand notices (Annexure- P4 ). All the notices were issued on 10th April, 2002. They were issued under the provisions of the Textiles Committee (Cess) Rules, 1975 (hereinafter referred to as the rules ). 4. Being aggrieved by the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s liable to pay duty of excise under the Central Excises and Salt Act, 1944. Secondly, the Petitioner No. 1 being a manufacturer of hosiery cannot be considered to be a manufacturer of textiles within the meaning of Section 5A(3) of the Act, as the hosiery is exempted from duty under the Act of 1944. Thirdly, according to the petitioner, when Rule 8 specifies only two sources for obtaining the figures on the basis whereof the assessment could be made, the assessment made by the Assessing Officer on the basis of information derived and figures so obtained from a source other than any of the two sources mentioned in Rule 8, must be held to be bad in law being an act done de hors the provision of the relevant rule. 6. The learned Single Judge overruled the first two contentions by giving specific reasons and while rejecting the third contention, His Lordship observed that there is a decision of another learned Single Judge on the aforesaid question taking a contrary view; accordingly, His Lordship referred the question on the aforesaid third submission before the Hon ble Chief Justice for sending the same to a Division Bench. 7. The writ petitioner has also preferred a separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Textiles Committee (Cess) Rules, 1975 specifically provided a manner in which cess has to be collected, the cess can only be collected in that manner and all other modes of collection of the cess in any event is impliedly barred and the authorities concerned are empowered to make assessment only by observing Textiles Committee Rules, 1975 and in no other manner. The learned Lawyer contended further that the learned Judge erred in accepting the contention of the respondents that in absence of return submitted by a manufacturer and when such manufacturer is exempted from paying duty of excise under the Central Excises and Salt Act, 1944 because of an exemption notification, the Assessing Officer is entitled to assess cess by following any other means not provided for in the Act or in the rules. 10. The learned Counsel for the writ petitioner in this connection relies upon the following decisions of the Supreme Court in support of his contentions : (a) Member Secretary, AP State Board Water Pollution v. A.P. Rayons Ltd.; (b) J.K. Steel Ltd. v. Union of India and Ors.; (c) Union of India and Ors. v. Deokinandan Agarwalla reported in AIR 1992 SC 96; (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a liability, the rules and particularly provisions of Rule 8, must be interpreted so as to advance the purpose and object of the charging section and not to frustrate and defeat the same. 14. The learned Counsel relied on the judgment of the Madras High Court in the case of Tamil Nadu Handloom Weavers Co-operative Society v. Assistant Collector of Central Excise, Erode reported in 1978 (2) E.L.T. (J 57) (Mad.) where Madras High Court held that once the goods are exempted from excise duty they do not cease to be excisable goods. The character of the excisable goods does not depend on the actual levy of duty but depends on the description as excisable goods in the First Schedule to the Act. 15. The learned Counsel also relied on the judgment of the Supreme Court in the case of Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. Ltd. The learned Counsel for the respondents led stress on the observation made in Paragraphs 25 to 31 which are quoted herein below : 25. We think that Rule 10 should be confined to cases where the demand is being made for a short levy caused wholly by one of the reasons given in that rule so that an assessment has to be reopened. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment . The allegations contained in it have been characterized by the learned Counsel for the company as a change of front intended to cover up the neglect of the Collector in failing to comply with the correct procedure of making either an assessment before delivery contemplated by Rule 52 or a provisional assessment under Rule 10B. We are unable to hold, either upon the findings given by the High Court or upon facts transpiring from the affidavits filed by the parties that the notice was a mere cloak for some omission or error or inadvertence of the Collector in making a levy or an assessment. 29. We may point out that Rule 10 itself has been amended and made more reasonable in 1969 so as to require a quasi-judicial procedure by serving a show cause notice within 3 months from the date on which the duty or charge was paid or adjusted in the owner s account current, if any . This amendment made on 11-10-1969, indicates that the quasi-judicial procedure, for a finding on an alleged inadvertence, error, collusion, or mis-construction by an officer, or mis-statement by the assessee, as the cause of an alleged short levy resulting from an assessment can now be embarked upon and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y law it must be performed in that mode or not at all. This rule flows from the maxim : Expressio unius est exclusio alterius. But, as was pointed out by Wills, J., in Colquhoun v. Brooks 1888 (21) QBD 52 at p. 62, this maxim is often a valuable servant, but a dangerous master.... The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. Moreover, the rule of prohibition by necessary implication could be applied only where a specified procedure is laid down for the performance of a duty. Although Rule 52 makes an assessment obligatory before goods are removed by a manufacturer, yet, neither that rule nor any other rule, as already indicated above, as specified the detailed procedure for an assessment. There is no express prohibition anywhere against an assessment at any other time in the circumstances of a case like the one before us where no assessment , as it is understood in law, took place at all. On the other hand, Rule 10A indicates that there are residuary powers of making a demand in special circumstances not fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature and character of the goods as excisable goods within the meaning of the Act. The notification proceeds on the assumption that the hosiery is excisable goods. If the hosiery is not excisable goods, then there was no need or occasion for exempting the same from the levy of excise duty. We are unable to agree with the learned Counsel for the petitioner that once the hosiery is exempted from excise duty, it ceases to be excisable goods. 18. Apart from the aforesaid consideration, by and under Textiles Committee (Amendment) Act, a cess is to be levied and collected for the purpose of the Act as a duty of excise on all textiles and textile machinery manufacturing in India on ad valorem basis at the rate notified in the Official Gazette and the cess levied under the provisions of Textiles Committee Act is an independent cess having complete code and contains all the provisions relating to levy, collection, exemption and application of cess. Under Rule 4 of the Textiles Committee Rules manufacturer like the Petitioner No. 1 is under a duty and obligation to furnish the return in Form A (Textiles) or in Form B (Machinery), as applicable for assessment of cess. Similarly under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpreting a fiscal statute the Court cannot proceed to make good deficiencies if there may be any; the Court must interpret the statute as it stands and in case of doubt in a manner favourable to the taxpayer. In the case before us, there is no trace of doubt that the cess payable under the Act is an independent liability and has no connection with the liability under the Act of 1944. We therefore find that the said decision does not help the writ petitioner in any way. 24. The learned Counsel next relied on the two judgments of the Supreme Court, one in the case of Union of India and Ors. v. Deokinandan Agarmalla reported in AIR 1992 SC 96 and the other in the case of A.K. Roy and Ors. v. State of Punjab and Ors., where the Supreme Court held that the Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate and the Court cannot add words to a statute or read words into it which are not there and where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other modes of performance are necessarily forbidden. In the case before us, for the purpose of fastening the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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