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TMI Blog1993 (1) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be covered by the decision of this Court in J.K. Cotton Spinning and Weaving Mills Ltd. & Another v. Union of India and Others - [1988] 1 S.C.R. 700 = 1987 (32) E.L.T. 234 (S.C.) and the surviving prayer in the writ petition is to declare that the duty of excise in respect of Tariff Item Nos. 18A(ii), 18(III)(ii) and 18E is to be levied and collected on the weight of the unsized yarn and not on the basis of the weight of the sized yarn. 3. Before we deal with the objections of the learned Counsel for the respondents, it would be useful to examine the points which were involved in the aforesaid case of J.K. Cotton Mills. The appellants in the said case had a composite mill wherein it manufactured fabrics of different types. In order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another commodity even within the place/premises that have been specified in this behalf by the Central Excise Officers in terms of the powers conferred under Rule 9 of the Rules, will attract duty". As the said circular was being implemented to the prejudice of the appellants, they filed the writ petition before the Delhi High Court, inter alia, challenging the validity of the said circular. 4. During the pendency of the writ petition in the Delhi High Court, the Central Government by Notification No. 20/82-C.E., dated 20th February, 1982 amended Rules 9 and 49 of the Rules. Section 51 of the Finance Act provides that the amendments in Rules 9 and 49 of the Rules shall be deemed to have, and to have always had the effect on and from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by Section 51 of the Finance Act, 1982 will be subject to the provisions of Sections 11A and 11B of the Act. This Court also agreed with the view of the High Court that the yarn which is produced at an intermediate stage in the mill of the appellants and subjected to integrated process of weaving the same into fabrics, would be liable to payment of excise duty in view of the amended provisions of the Rules. But, this Court further agreed with the High Court, the sized yarn which is actually put into the integrated process will not again be subjected to payment of excise duty for, the unsized yarn, which is sized for the purpose, does not change the nature of the commodity as yarn. This Court observed at pages 720 and 721 of the report as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd directed that the duty levied should be refunded because the duty has been levied not on the basis of yarn at the spindle stage, but on the weight of the sized yarn. After the decision of the Gujarat High Court the Central Government had amended Rules 9 and 49 of the Rules and Section 51 of the Finance Act, 1982, had made them effective retrospectively. 7. The present writ petitions filed in this Court had inter alia pleaded that the retrospective amendment of Rules 9 and 49 of the Rules as well as Section 51 of the Finance Act, 1982 be declared as ultra vires of the Constitution. This Court upheld the validity of the Section as well as the retrospective applicability of the Rules but took the view that this would be subjected to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation : Explanation III under sub-item III of Item No. 18 shall, so far as may be, apply in relation to this item as it applies in relation to that item." 9. It will be noticed from the aforesaid items that the measure for imposition of excise duty is by weight "per kilogram" in all the three items, namely - 18-I, 18-III and 18E. Therefore, the aforesaid decision in J.K. Cotton Mills will be applicable to all types of cases under Items 18-I, 18-III and 18E. After the decision of the Gujarat High Court, instead of granting the refund, the Superintendent of Central Excise, Range IV, Division V, Ahmedabad, issued impugned notices, collectively annexed as Annexures `B' and `C' to the present writ petition in pursuance of the direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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