9911796707
TMI Blog2007 (7) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... amended by Finance Act, 2000, is null and void as affecting Article 14 and 19(1)(g) of the Constitution of India and to restore pre-amended provision of 'Nil' duty. The other Writ Petition, W.P. No. 3261/04 has been filed for direction of the 4th respondent and his officers and subordinates from interfering with the petitioner's trade in unrestricted medical preparations by applying clauses 6(3), (4), (7), (8), (9), (10), (13), (14) and (15) of Tamil Nadu Spirituous Preparations (Control) Rules, 1984, (hereinafter referred to as 'Rules, 1984') applicable to restricted medical preparations under Rules, 1984. 2.The petitioner is manufacturer of unrestricted medical preparations of 'Asavas' and 'Aristas' for sale, which contains self-generat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are spurious or adulterated and the said three enactments regulate the trade and action could be taken in default. There is enough control over the trade. In the past two to three years, more than 100 L-2 licences issued under the M & TP Act have been cancelled, renewal refused and application for fresh licence rejected by the District Collector of Kanyakumari as a policy. 3.It appears that the petitioner and 6 others earlier preferred writ petitions, W.P. Nos. 1294 to 1300/04 to forbear the respondents from requiring manufacturers for sale of unrestricted ayurveda preparations to take out an L-2 licence under M & TP Act and Rules framed thereunder, as it is not necessary for them, being not dutiable goods u/s 2(c) and clause 2(i) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative of Article 14 of the Constitution of India. The duty against clause 2(i), i.e., medicinal preparation containing alcohol not capable of being consumed as ordinary alcoholic beverage, being 'Nil' for more than 45 years, it will be deemed to have been exempted by the State and in absence of any valid reason, imposition of such duty should be construed to have no nexus with the object to achieve. 5.Section 2(c) defines dutiable goods, which reads as follows :- "2. Definitions. — In this Act unless the context otherwise required, — ******** (c) "dutiable goods" means the medicinal and toilet preparations specified in the schedule as being subject to the duties of excise levied under this Act." The aforesaid definition merely shows t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edicinal preparation containing self-generated alcohol not capable of being consumed as ordinary alcoholic beverage. Clause 2(i) of the Schedule is also not under challenge in the present case, except the 4% ad valorem duty of excise so imposed. The relevant amendment as made under clause 2(i) of the Schedule reads as follows :- 2 Medicinal Preparations in Ayurvedic, Unani or other Indigenous systems of medicine — (i) Medicinal preparations : containing self-generated alco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds viz. (i) lack of legislative competence; and (ii) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provisions. In State of A.P. v. McDowell & Co. this Court has opined that except the above two grounds there is no third ground on the basis of which the law made by the competent legislature can be invalidated and that the ground of invalidation must necessarily fall within the four corners of the aforementioned two grounds." In the present case, the petitioner has not challenged the legislative power of Parliament, which enacted M & TP Act under Entry 84 List I of the 7th Schedule of the Constitution of India. The petitioner also failed to show violation of any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d consisting of or containing alcohol. Rule 3 (j) defines 'restricted preparation' - means spirituous preparation that are intended for internal consumption and containing more than 18% of alcohol and medicinal preparation containing intoxicating drugs. As per proviso to Rule 3(j), all ayurveda preparations containing self-generated alcohol and classified as 'restricted preparation' under Medical and Toilet Preparations (Excise Duties) Rules, 1959, are to be treated as restricted preparation for the purpose of Rules, 1984. Rule 3 (k) defines 'spirituous preparation' - means any medical or toilet preparation containing alcohol, whether self-generated or otherwise, or any intoxicating drug or any other substance containing alcohol or intoxica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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