TMI Blog1994 (9) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.Briefly stated the facts of these petitions are that the petitioners constructed shed with the aid of duty-paid product and material. The shed is built by trusses, columns, girders, purlins, and other articles. The respondents felt that this construction is not fabrication of certain articles as noted above, but manufacture of the said article. They held that the process of subjecting the plates, channels and angles through process of cutting, drilling and welding amounted to "manufacture" and the material used was goods liable to central excise duty. The Respondent (Additional Collector) in the aforesaid view of the matter, issued the show cause notice to the petitioner as to why the excise duty should not be recovered under Rule 9(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal, New Delhi, (3) 1988 (36) E.L.T. 316 (Tribunal) (Steel Authority of India Ltd. v. Collector of Central Excise), (4) 1990 (48) E.L.T. 539 (Tribunal) (Pratap Steel Rolling Mills v. Collector of Central Excise) and (5) 1986 (25) E.L.T. 580 (Tribunal) (Aruna Industries, Vishakhapatnam and others v. Collector of Central Excise, Guntur and others). 6.In view of the aforesaid judgments and position of law as indicated therein, the Counsel for the respondents was unable to support the show cause notices impugned in these writ petitions. 7.In AIR 1965 S.C. 1773 (A. Venkata Subbarao and others v. The State of Andhra Pradesh), it is held that the words "levy and collection" as used in Article 265 of the Constitution of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Engineering Union, (1971) 1 All ER 148 and Supreme Court stated in Khudi Ram's case (1975) 2 SCR 832 = AIR 1975 S.C. 550 that in a Government of Laws "there is nothing like unfettered discretion immune from judicial review ability". Fairness, founded on reason, is the essence of the guarantee epitomised in Article 14. If the power has been exercised improperly or mistakenly so as to impinge unjustly on legitimate rights or interests of the subject, then Courts must so declare. The Courts stand between the executive and the subject alert, alert to see that discretionary power is not exceeded or misused. Lord Atkin highlighted that aspect. Liver Sidge v. Anderson - (1942) AC 206 is instructive and indicator of the amplitude of the power ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y humour. Douglass J. in United States v. Wunderlick (1951-342-4598-Law Ed 113) observed elegantly that "Law has reached its finest moments, when it has freed man from unlimited discretion of some ruler. Where discretion is absolute, man has always suffered." 17.Macbeth of Shakespeare lamented that "The attempt and not the deed confounds us." Charles Da Gauble held that "Deliberation is the work of many men, action of one alone". Attempt and action of the authority, issuing the notices, falling foul of law, are liable to be foined by legal armoury. 18.In the cases on hand what has happened is that with the help of various articles of iron and steel, sheds have been erected on site. Basic activity is thus one of erection and not manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that erection of sheds did not amount to manufacture of goods or products, in terms of law and is only a fabrication activity-simpliciter and as such, petitioners are not violaters of law or evaders of duty as noticed. There is no new or distinct article. 22.Referring (1961) 41 ITR 191 = (AIR 1961 S.C. 372) Calcutta Discount Co. Ltd. v. ITO and host of later decisions, the Supreme Court in AIR 1991 S.C. 464 (ITO v. Biju Patnaik) has held that "conditions" precedent to the exercise of jurisdiction under relevant law should be shown to exist. Here condition, in the absence of manufacture of goods or production, is non-existent. Hence, there was no case or cause to issue notice and demand duty or impose penalty. Notices are thus liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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