9911796707
TMI Blog1988 (12) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... exemptions from payment of excise duty, but the benefit was denied to the writ petitioner, respondent before this Court, in view of the impugned clause. 2.The respondent assessee, a business concern functioning under the name of M/s. Dhanalakshmi Paper and Board Mills, decided to set up a factory for the manufacture of paper and paper boards and allied products, and obtained a lease of certain premises in June 1963 and put up a suitable structure for the factory by August, 1963. The necessary machineries for running the factory, however, were received in April 1964 and application for licence therefor was filed on 27.4.1964. The licence was granted on 6.5.1964 and production in the factory started the next day, i.e., 7.5.1964. 3.The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for a licence on or after the 9th day of November, 1963, unless he satisfied the Collector of Central Excise - (a) that the factory for which the licence was or is applied for was owned on the 9th day of November, 1963, by the applicant;" The benefit of the Notification claimed by the respondent assessee was denied by the appellants on the ground that the factory did not come into existence on or before the 9th day of November, 1963, the date mentioned in the impugned clause (a). The respondent moved the High Court in its writ jurisdiction under Article 226 of the Constitution, and the application was allowed by a learned Single Judge. An appeal therefrom under Clause 15 of the Letters Patent was dismissed in limine. The appellants hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no explanation for the choice of the date in clause (a) is forthcoming. 4.Sri V.C. Mahajan, learned counsel for the appellants, contended that a statutory provision has necessarily to be arbitrary in the choice of date and it cannot be challenged on that ground. He relied upon the observations of this Court in Union of India v. M/s. Parmeswaran Match Works etc.: 1978 (2) E.LT. (J 436) (S.C.) = (1975) 2 SCR 573 (at page 578) as quoted below :- "To achieve that purpose, the Government chose September 4, 1967, as the date before which the declaration should be filed. There can be no doubt that any date chosen for the purpose would to a certain extent, be arbitrary. That is inevitable." Reliance was also placed on Jagdish Pandey v. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e attach on the choice of this date was met by the observations relied upon by the learned counsel for the appellants and quoted earlier. It will be observed that the date, September 4, 1967, was the date on which the amending Notification itself was issued. The crucial date, therefore, could not be condemned as one "taken from a hat". It was the date of the notification itself. A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical. In cases where choice of date is not material for the object to be achieved, the provisions are generally made prospective in operation. In that sense this Court observed in M/s. P. Match Works case that the date chosen would be to a certain extent be arbitrary a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed etc. between these dates and applying Section 4 to them while the rest would be out of the purview of that section." The Court then proceeded to examine the purpose of the legislation and the attendant circumstances and upheld the section. 7.Another learned counsel who appeared on behalf of the appellants for the final reply placed reliance on paragraphs 38, 44 and 45 of the judgment in Dr. Sushma Sharma and others v. State of Rajasthan and others: 1985 Supp. SCC 45. In paragraph 38 it was said that wisdom or lack of wisdom in the action of the Government or Legislature is not justiciable by the Court, and to find fault with the law is not to demonstrate its invalidity. We are afraid, this aspect is wholly irrelevant in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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