TMI Blog2002 (4) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... notified goods, which was inserted in the Act w.e.f 14-5-1997 by Section 81 of the Finance Act, 1997 be deleted as unconstitutional and violative of Articles 14, 19 265 of the Constitution of India. The petitioner has also prayed that Rule 96ZO of the Central Excise Rules, 1944 be also struck down. The petitioner has also prayed that the Induction Furnance Annual Capacity Determination Rules, 1997 be also struck down by the Central Government in exercise of the powers conferred by sub-section (2) of Section 3A of the Act. The petitioner has further prayed that Notification No. 24/97-C.E., dated 1-8-1997 be also struck down. 3.The petitioners have prayed that sub-rule (3) of Rule 96ZO of the Central Excise Rules is not only ultra vires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the earlier judgment of the Supreme Court in Commissioner of Central Excise v. M/s Venus Castings Pvt. Ltd. [2000 (117) E.L.T. 273 (S.C.)]. It is mentioned in the counter affidavit that the challenge to Section 3A was not pressed in order to move the High Court under Article 226 is totally false. In fact the challenge to the section was withdrawn without seeking any liberty to move the High Court for challenging the validity of Section 3A of the Act. 6.It is also mentioned in the counter affidavit that Rule 96ZO has been challenged and this challenge has been specifically rejected and the validity of the rule has been upheld by the Supreme Court. This has been suppressed from this Court. 7.Section 3A of the Act permits assessment of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction measure is less. 9.Hon'ble Supreme Court by a judgment Union of India Ors. v. Supreme Steels Gen. Mills Ors. [2001 (133) E.L.T. 513 (S.C.)] (delivered on 15-10-2001 by a Bench consisting of S. P. Bharucha, Hon'ble the chief Justice, Y. K. Sabharwal, J Brijesh Kumar, J) disposed of a number of civil appeals and writ petitions. The very first paragraph of the judgment reads as under : "The above noted bunch of cases, comprising of civil appeals, S. L.Ps and writ petitions relate to charge of excise duty on notified goods on the basis of capacity of production, as introduced by newly added Section 3A in the Central Excise Act, 1944, by means of Finance Act 26 of 1997. Vires of Rule 96ZO of the Central Excise Rules has also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons best known, the petitioners, during the course of hearing, have not pressed challenge to the validity of Section 3A of the Central Excise Act. Normally, when the Courts are not inclined to give the desired reliefs, the petitioners at times do withdraw the challenge during the course of hearing and at times Courts also grant such permission. This does not seem to be a case where the petitioners have withdrawn the challenge to the said Rule in order to enable them to approach the High Court under Article 226. No such permission was granted by the Hon'ble Supreme Court. There is no doubt that the petitioners in para 14 have wrongly stated that "no similar petition has also been filed by the petitioner and the same has not been already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 951 Allahabad 746 (Full Bench), the Court observed that no relief can be granted in a writ petition which is based on mis-statement or suppression of material facts. 15.Similar principles have been laid down in English cases The King v. Williams (1914) 1 KB 608 and Rex v. Kensington Income Tax Commissioners (1917) 1 KB 486, which were considered with approval by the Supreme Court in number of judgments. Their Lordships of the Supreme Court also relied these cases in the latest judgment of the Supreme Court in Udai Chand v. Shankar Lal, AIR 1978 SC 765. In this case the Court revoked the special leave petition and vacated the stay order. The Court while following the ratio of the aforementioned cases observed that "Supreme Court would be j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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