Mis. Mangalam Organics Ltd. v. Union of India
A. K. SIKRI, J. I. This appeal arises out of the judgment of the
F High Court rendered in the writ petition filed by the appellant, wherein
the appellant wanted the High Court to exercise its powers under A11icle
226 of the Constitution of India and issue mandamus to the Central
Government directing the Central Government to issue a notification
under Section 11 C of the Central Excise Act, 1944 (hereinafter referred
G to as the 'Act') to the effect that duty payable by the appellant on goods
manufactured by it shall not be paid.
2. Section 11 C of the Act reads as under:
"I IC. Power not to recover duty of excise not levied or short
levied as a result of general practice.-
M/S. MANGALAM ORGANICS LTD. v. UNION OF INDIA 411
[A. K. SIKRI, J.)
(I) Notwithstanding anything contained in this Act, if the Central
Government is satisfied-
(a) that a practice was, or is, generally prevalent regarding levy
of duty of excise (including non- levy thereof) on any excisable goods;
and
(b) that such goods were, or are, liable-
(i) to duty of excise, in cases where according to the said practice
the duty was not, or is not being, levied, or
(ii) to a higher amount of duty of excise than what was, or is
heing, levied, according to the said practice, then, the Central Government
may, by notification in the Official Gazette, direct that the whole of the
duty of excise payable on such goods, or, as the case may be, the duty of
excise in excess of that payable on such goods, but for the said practice,
shall not be required to be paid in respect of the goods on which the duty
of excise was not, or is not being, levied, or was, or is being, short
levied, in accordance with the said practice.]
(2) Where any notification under sub- section (l) in respect of
any goods has been issued, the whole of the duty of excise paid on such
goods or, as the case may be, the duty of excise paid in excess of that
payable on such goods, which would not have been paid if the said
notification had been in force, shall be dealt with in accordance in force,
shall be dealt with in accordance with the provisions of sub- section (2)
of section l IB:
Provided that the person claiming the refund of such duty or, as
the case may be, excess duty, makes an application in this behalf to the
Assistant Collector of Central Excise, in the form referred to in sub
section (I) Of section 1 IB, before the expiry of six months from the
date of issue of the said notification."
3. A bare perusal of the aforesaid provision wou Id indicate that if
certain conditions mentioned therein are satisfied, the Central Govemment G
may issue a notification directing that whole of the duty of excise payable
on such goods, or, as the case may be, the duty of excise in excess of
that payable on such goods, but for the said practice, shall not be required
to be paid. The condition stipulated in the said Section with which the
412
Central Government is to satisfy itself is that there is/was a generally
prevalent practice according to which the duty was not, or is not being
levied, even when such a duty of excise was otherwise payable on such
excisable goods.
4. We may point out at this stage itself that the High Court vide
impugned judgment has come to the conclusion that Section 11 C of the
Act grants a discretionary power to the Government to issue or not to
issue such a notification. The said provision does not mandate the
Government to necessarily issue such a notification and in the absence
of any obligation on the part of the Government in this behalf, the Courts
are precluded from giving any mandamus to the Central Government to
exercise such a power and issue the notification.
5. Before we answer the questions posed above and comment
upon the correctness or otherwise of the view taken by the High Court,
those seminal and material facts, which have a bearing on the issue,
needs to be stated. These facts are as follows:
The appellant is in the business of manufacturing Rosin and
Turpentine. Rosin is the resinous constituent of the oleoresin exuded by
various species of Pine Tree i.e. Oleo Pine Resin, known in commerce
as 'crude turpentine'. The separation of the oleoresin into the essential
oil spirit ofTurpentine and Rosin is effected by distillation in large kettle
stills. There are two methods of manufacturing Rosin/Turpentine from
Oleo Pine Resin. One method is the vacuum chemical treatment process
which uses power in almost all the processes. The second method,
commonly known as the Bhatti process, is entirely manual except for
the use of power to operate the pump for lifting up the water to the
storage tank for the purpose of condensing. Thus, in the second method,
power is used, but is confined to operating the pump for lifting up the
water to the storage tank for the purpose of condensing. The appellant
is using this second method of manufacturing Rosin/Turpentine.
6. Insofar as the first method of manufacturing Rosin/Turpentine
is concerned, wherein power is used in all the processes, there is no
dispute that it is treated as a manufacturing process with the aid of
power and the units were manufacturing these products using this
methodology or covered by the provisions of the Act. There are about
ten units which are adopting this method and are paying the excise duty
under the Act on the goods so manufactured.
MIS. MANGALAM ORGANICS LTD. v. UNION OF INDIA 413
[A. K. SIKRI, J.]
7. Majority of the units, i.e. about 300 in number, are using the A
Bhatti method whereby use of power is confined to lifting of water to
· overhead tanks for condensation ofTurpentine vapours collected as liquid
Turpentine in tanks. The Rosin which remains in the kettle is removed
in buckets, usually cooled and dispatched in drums. However, this Court
has held in a case that even this process would be treated as manufacturing
process with the aid of power even when such power is used to a limited
extent. That judgment is reported in Commissioner of Central Excise,
Nagpur v. Gurukripa Resins Private Limited' which was rendered
on 11. 07.2011, which fact would again be discussed while dealing with
the sequence of events leading to the instant appeal.
8. What is emphasised at this stage is that it is a common case of C
the parties that excise duty on the goods manufactured by the appellant
is, otherwise, payable in law. Insofar as the history of payment of excise
on these goods is concerned, record shows that vide notification No.
179/77-CE dated 18.06.1977, the Central Government had exempted all
goods, falling under Item No.68 of erstwhile First Schedule to the Central D
Government Excise and Salt Act (I of 1944) in or relation to the
manufacturing of such goods where no process is ordinarily carried on
with the.aid of power, from the whole of the duty of excise leviable
thereon. The Department of Revenue had issued clarification dated
16.01.1978 to the effect that the aforesaid notification covers those units
which are manufacturing Rosin and Turpentine oil where no power is
used in the manufacture of Rosin but power is used for drawing water
into the tank through which the coils containing oil vapours pass. This
notification was issued in exercise of powers conferred by sub rule ( 1)
of Rule 8 of the Central Excise Rules, 1944. However, this notification
was superseded by another notification dated 01.03 .1986 thereby
withdrawing the aforesaid exemption. It was followed by the Circular
dated 27.05.1994 clarifying that all earlier circulars/instructions/ tariff
advices issued prior to March 1986 in the context of old tariffhad been
withdrawn.-
9. A show cause notice dated 04.10:2004 was issued to the
appellant by the Excise Department demanding duty ofRs.10,91,99,456/
- on the aforesaid products manufactured by the appellant and cleared
during the period 01.04.1999 to 31.08.2003. It was followed by further
notices to the same effect covering the period September-October, 2003
• c2011) 13 sec 1so
A to March, 2004; April, 2004 to November, 2004; and December, 2004 to
September, 2005 for the amount of Rs.50, 760/-, Rs.66,44,602/-,
Rs.1,01,92,867/- and Rs.81,44,105/- respectively. One more unit Mis.
Gurukripa Resins Pvt. Ltd., Nagpur (for short 'Gurukripa') was al~o
issued similar show cause notices. Case of the appellant is that out of
300 units using Bhatti method, only these two units were picked up for
raising demand of excise.
I 0. Gurukripa had challenged the order of assessment passed in
its case by filing the appeal before the Central Excise and Service Tax
Appellate Tribunal, Mumbai (for short 'CESTAT'). The said appeal of
Gurukripa was allowed videjudgmentdated 14.01.2004. The Depa1tment
challenged the order passed by the CESTAT in the case ofGurukripa, in
which the Revenue succeeded as that appeal was allowed by this Court
vi de its judgment dated 11 .07 .20 I I, as pointed out above.
11. This Court held that the process of lifting of water into the
cooling tank was integrally connected with the manufacture of these
D goods and hence, ifthe power was used for lifting of water, the exemption
would not be available. This Court also held that the TRU's circular of
1978 was not applicable since the same stood withdrawn in I 994.
12. In view of the aforesaid judgment rendered in the case of
GurukripaResi11s Private Limited, appeals filed by the appellant before
the CESTAT came to be dismissed. However, the Tribunal restricted
the Depaitment to recover the dues falling within the period oflimitation
only, i.e. for a period of one year. This drastically reduced the demand
of excise inasmuch as the excise demanded for the period from
0 I .04.1999 to 31.08.2003 became time barred. Both the Department as
well as the appellant have challenged the said order of the CESTAT
before the High Court of Bombay and the matter is still pending there.
13. After the judgment of this Court in Gurukripa Resins Private
Limited, several trade associations made representations to the
Government with a request to grant benefit under Section 11 C of the
G Act. On receiving these representations, the Central Board of Excise
and Customs decided to float a survey to ascertain a general practice
during the period from 27.05.1994 to 27.02.2006. Consequently, the
survey letter was issued on 14.03.2012. On the basis of this survey, the
Department came to the conclusion that there was no such practice of
non-levying excise duty on these products. Objections were raised to
MIS. MANGALAM ORGANICS LTD. v. UNION OF INDIA
[A. K. SIKRI, J.]
the finding of the said survey on the ground that only ten units in the
survey were considered as against the total units of approximately 300.
This led to ordering a re-survey vide letter dated 23.01.2013. According
to the appellant, this re-survey revealed that though there were many
units across the country which had turnover exceeding SS! but they
were also never levied excise duty during the aforesaid period, and this
phenomenon establishes that there was a general practice of not
demanding excise duty from the units, which were using Bhatti method.
Whether this plea of the appellant is factually correct or not would be
discussed at an appropriate stage.
14. Fact of the matter is that after thorough consideration, the
Finance Ministry decided on 15.09.2014 not to issue any such notification
under Section l lC of the Act as it was going to benefit only two
companies, which includes the appellant. This decision was
communicated by the Department of Revenue to the All India
Manufacturer Organisations vide letter dated 30.09.2014. Challenging
the aforesaid decision, the appellant filed writ petition in the High Court
of Delhi with the following prayers:
"(a) Issue a writ of ce1iiorari or any other similar writ or direction
for quashing the decision, communicated vide letter dated 30.09.2014 of
the respondent that the notification under Section 11 C of the Central
Excise Act, 1944 cannot be issued for extending the benefits of not
requiring to pay the Central Excise Duty to the units manufacturing Rosin
and Turpentine without the aid of power, except for the purpose of usirig
electricity to pump, for lifting up water for condensation to overhead
tank, for the period from 27.05.1994 to 28.02.2006, even though the
practice of non-levy on these units for the said period has already been
established in. a survey done by the Department;
( b) Issue a writ of mandamus or any others im i lar writ or direction
to the respondent to issue the notification under Section 11 C of the Central
Excise Act, 1944 for extending the benefits of not recovering the Central
Excise D'.lty from the units manufacturing Rosin and Turpentine without
the aid of power, except for the purpose of using electricity to pump for
lifting up water to overhead tank, for the period from 27.05.1994 to
28.02.2006; and
(c) Pass any other order or direction as the Court may think fit
and proper."
415
1-1
416
It is this writ petition which has been dismissed by the High Court
vide impugned judgment dated 16.02.2016.
15. Submission of Mr. S. Ganesh, senior advocate, and Mr.
Prashant Bhushan, advocate appearing for the appellant, was that it
stood established from the re-survey conducted by the Department itself
that there was a general practice of not demanding excise duty from
Bhatti manufacturers, though, in this survey, only around 125 units could
be examined as the Department could not get full details of the remaining
industries and moreover, most of them were small scale industries availing
benefit under SSI exemption. The learned counsel argued that still this
survey indicated that there were at least 39 units whose turnover
exceeded SSI limit but no excise duty was demanded from those units
as well. The appellant relied upon following noting dated 20.05.2014 of
the Commissioner(Central Excise):
"I I. ... it is clear that majority of the units were not paying duty
during this period and that show cause notices were issued in respect of
2 units i.e. Mis. Gurukripa Resins (P) Ltd. and Mis. Dujodwala
Industries. In respect of unregistered units no show cause notices have
been reportedly issued.
The reasons for not filing any declaration by unregistered units
are not clear. It could be a case of non-payment of dutv or alternatively
a belief by these units that they covered by the TRU clarification of
1978 and hence do not require registration. The precise reasons for not
filing declaration can only be explained by field formations who are
reportedly not having complete records. However, the fact remains that
a number of unregistered units did not pay the duty even when they had
crossed the ssr limit and the department also did not demand such duty
from them .... This can, therefore, also be considered as a case ofnon
levy as well as that of non-payment..."
The Under Secretary, Central Excise in his noting dated 22.08.2014
has stated that:
" ... _The re-survey has indicated that there were at least 39
unregistered units which had turnover more than SSI exemption limit
either once or more than once during 1994-1995 to 2005-06 ... .It could
be concluded that there was a practice of non levy of duty."
M/S. MANGA[,AM ORGANICS LTD. v. UNION OF INDIA
[A. K. SIKRI, J.]
Finally, the Member Central Excise also in his noting dated
11.09.2014 has observed;
'' ... the issue was again examined after conducting a fresh survey.
It was found that though there was a practice of non-levy of duty,
issuance of Section I I [C] notifications will only benefit two companies,
namely, M/s. Gurukripa Resins Pvt. Ltd., Nagpur and M/s. Dujodwala
Industries, Mumbai. Decision was taken with the approval of the then
revenue secretary [p/112 N .S.] That section 11 [CJ notification cannot
be issued to favour only a few select industries and it was decided to
reject the request."
16. It was, thus, argued that there was a specific finding of the
Department itself that there was a prevalent practice of non-levy of
duties on units which manufactured the same products and use power
only to pump water to the cooling tank. It was, thus, argued that conditions
mentioned under Section 11 C of the Act for issuing the notification were
clearly fulfilled.
17. Proceeding on the aforesaid basis, submission of the learned
counsel for the appellant was that once conditions of a particular statutory
provision were fulfilled, the Government was obligated to exercise the
power with the issuance of a required notification. It was argued that
this power rested in the Central Government under Section 11 C of the
Act coupled with the duty and, therefore, the Central Government was
duty bound to exercise the power once the conditions stipulated therein
were fulfilled. In support, reference was made to the judgment of the
Privy Council in Julius v. Lord Bishop of Oxford & Anr.1, which was
followed by this Court in Ambica Quarry Works v. State of Gujarat &
Ors ... , where it was explained that the very nature of the thing empowered
to be done may itself impose an obligation to exercise the power in
favour of a particular person. It was held that this is especially so where
the non-exercise of the power may affect that person's substantive rights.
Para 13 of this judgment was specifically relied upon which reads as
under:
"13. It was submitted by Shri Gobind Das that the said rule was in
pari materia with sub-rule (b) ofRule 18 of Gujarat Minor Mineral Rules,
1966. Often when a public authority is vested with power, the expression
2 1880(5)A.C.214
' (1987) 1sec213
417
418
SUPREME COURT REPORTS · [2017] 5 S.C.R.
"may" has been construed as "shall" because power if the conditions
for the exercise are fulfilled is coupled with duty. As observed in Craies
on Statute Law, 7th Edn., p. 229, the expression "may" and "shall" have
often been subject of constant and conflicting interpretation. "May" is a
permissive or enabling expression but there are cases in which for various
reasons as soon as the person who is within the statute is entrusted with
the power, it becomes his duty to exercise it. As early as 1880 the Privy
Council in Julius v. Lord Bishop of Oxford [( 1880) 5 AC 214] explained
the position. Earl Cairns, Lord Chancellor speaking for the judicial
committee observed dealing with the expression "it shall be lawful" that
these words confer a faculty or power and they do not of themselves do
more than confer a faculty or power. But the Lord Chancellor explained
there may be something in the nature of the thing empowered to be
done, something in the object for which it is to be done, something in the
conditions under which it is to be done, something in the title of the
person or persons for whose benefit the power is to be exercised, which
D may couple the power with a duty, and make it the duty of the person in
whom the power is reposed, to exercise that power when cal led upon to
do so. Whether the power is one coupled with a duty must depend upon
the facts and circumstances of each case and must be so decided by the
courts in each case. Lord Blackburn observed in the said decision that
enabling words were always compulsory where the words were to
E effectuate a legal right."
18. Learned counsel also drew our attention to the judgment in
the case of Dhampur Sugar Mills Ltd. v. State of U.P. & Ors.4 wherein
the Privy Council decision in Julius was again referred to about
enforcement of the obligation to which the power is coupled with duty,
F by issuing order for that purpose. It was submitted that in the said ~ase,
the Court had directed the Government to constitute an Advisory Council
while rejecting the contention of the Government that it was for the
Government to exercise its discretion. It was also submitted that the
same approach and legal position has been laid down in D.K. Basu v.
State of West Bengal & Ors. 5 where it was held that the power of the
G State Governments to set up the State Human Rights Commissions was
not a power simpliciter but a power coupled with the duty to exercise
such power, especially so because it touched the right of affected citizens
to access justice, which was a fundamental right covered by Article 21.
• (2007) s sec 338
H ' (2015) s sec 744
MIS. MANGALAM ORGANICS LTD. v. UNION OF INDIA 419
[A. K. SIKRI, J.]
The said duty of the State Government was accordingly enforced by the A
Court by issuing a mandamus or direction to set up the Commissions/ti II
up the vacancies within a time bound period. Again in Aneesli D.
Lawande & Ors. v. State of Goa & Ors. 6, this Court gave a direction
to enforce the obligation which was held to be annexed to the power
conferred on the Government. Reference was also made to Sureslt
Chand Gautam v. State of Uttar Pratlesh & Ors. 7 on this very aspect.
19. Another submission of the counsel for the appellant was that
the solitary reason furnished by the respondent for not exercising its
powers under Section 11 C of the Act was that such a notification, if
issued, was going to benefit only two assessees. It was submitted that
this could never be a valid or tenable ground for the Government to
refuse such a notification, more so, in a situation where the demand
notices were issued to two assessees only and other similarly situated
persons were spared. Learned counsel also submitted that the Central
Government in the past had issued a notification under Section 11 C of
the Act in individual cases i.e. where the benefit of the Court is to only
one identified assessee. On this very premise, another submission
developed by the appellant was that issuance of notification under the
said provision became al I the more necessary and imperative in order to
remove discrimination, which situation was created by the Department
by roping in only two assessees and not demanding the excise duty from
other assessees though identically placed. According to the appellant,
non-issuance of the notification resulted in violation of appellant's
fundamental rights under Article 14 as well as Article 19(l)(g) of the
Constitution. It was, thus, argued that the Government could not take
shelter under the plea that the power under Section 1 IC of the Act was
a discretionary power and it was amenable to judicial review under Article
226 of the Constitution. Submission was that mandamus of this nature
had been issued earlier. Example of cases titled Clloksi Tube Company
Lttl. v. Union of India & Ors.8 and Union of India & Ors. v. N.S.
Ratlmam & Sons 9 were given.
20. It was also argued that there was no delay whatsoever on the G
part of the appellant in filing the writ petition and objection of the
respondent to this effect was untenable. The rejection order of the
6 (2014) I SCC554
1 (2016) 11 sec 113
'(1997) 11 sec 179
•Civil Appeal No. 1795 of2005, decided on 29.07.2015 H
420
,
Minister came only in September, 2014 and the writ petition was filed
shortly thereafter. The only reason why the appellant was compelled to
pay excise duty was that it could not obtain an interim stay in the writ
petition filed by it. It is, thus, submitted that in the event of the appellant
succeeding in the present case, there should be an order for refund of
the amount paid by the appellant, along with interest thereon at a rate
which this Court considers reasonable.
21. Countering the aforesaid submissions with equal vehemence
and also adopting the reasoning given by the High Court in the impugned
judgment in support of its conclusion, Mr. A.K. Sanghi, learned senior
counsel appearing for the respondent. submitted that Section 11 C of the
Act was an enabling provision which empowered the Central Government
to issue a notification in the Official Gazette for not recovering whole of
the excise duty payable on ce11ain goods or recovering the excise duty
lesser than the normal duty payable. He emphasized the opening words
of Section 11 C, i.e. 'power not to recover duty of excise ... '. His
argument, thus, was that it is a provision which empowers the
Government to issue such a notification and, therefore, th is power was
discretionary in nature. His further submission was that since waiver of
the duty can be by issuance of a notification in the Official Gazette, such
a power was in the nature of subordinate legislation and as per the settled
law, courts refrain from issuing any mandamus to exercise a statutory
function. He further submitted that the Central Government had, for
valid reasons, decided not to issue any such notification. According to
him, reason for not issuing the notification, namely, that it was to benefit
only two parties, was a valid reason and such a policy decision taken for
not exercising power under Section 11 C of the Act was not open to
judicial review. Without prejudice to this argument, his another plea was
that the exercise carried out by the Government, culminating into the
aforesaid decision of not exercising the power, was based on valid and
justified grounds, which was rested on valid considerations and the Court
would not substitute its own decision for that arrived at by the
Government.
22. Dilating on the aforesaid argument, Mr. Sanghi submitted that
the most important events which had to be kept in mind were that the
show cause notices were issued to the appellant as well as Gurukripa
and in the case ofGurukripa the legal position was finally determined by
this Court vi de judgment dated 11.07.2011 holding that the process of
M/S. MANGALAM ORGANICS LTD. v. UNION OF INDIA
[A. K. SIKRI, J.]
lifting of water into cooling tank was integrally connected with the
manufacture of the goods and, ·hence, if power is used for lifting of
water, the exemption would not be available. The argument of Mr.
Sanghi was that once this position was legally settled, it was not open to
the appellant to nullify the effect of the said judgment by seeking a
direction to issue notification under Section 11 C of the Act.
23. The aforesaid narration makes it clear that three issues arise
for consideration - the first question is as to whether these conditions
are satisfied in the instant case? Secondly, if it is found that the goods
which are excisable goods liable for levy of duty under the Act, but there
has been generally prevalent practice not to demand duty or levy the
duty, or demand lesser duty on such goods, whether it is mandatory on
the parfofthe Central Government to issue a notification under Section
11 C of the Act requiring that no such duty shall be payable or lesser duty
shall be payable on such goods? Thirdly, ifthe Government chooses not
to exercise this 'power', whether the Court can issue a mandamus to
the Central Government to pass such a notification exercising its power
under Section 11 C of the Act?
We have bestowed our serious consideration that this case
deserves to the issues involved.
QUESTION NO. 1
24. It may be remarked in the first instance that, undoubtedly, as
far as duty under the Excise Act on the goods manufactured and cleared
for sale by the appellant is concerned, the same is payable under the
provisions of the Excise Act. It is the appellant's own case that the legal
position in this behalf, before the judgment dated 11.07.2011 in the case
421
of Gurukripa Resins Private Limited, was somewhat fluid and F
uncertain. Those units manufacturing Rosin and Turpentine by using
power in all processes are concerned, i.e. vacuum chemical treatment
process, were admittedly liable to pay the excise duty and were paying
also. However, insofar as the units adopting Bhatti process (to which
category the appellant belongs and wherein the whole of the process is G
manual, except for one process, viz. use of power to operate the pump
for lifting up the water to storage tank for the purpose of condensing)
are concerned, whether this process would amount to manufacturing
. process or not, was unclear. Moreover, most of these units which were
resorting to Bhatti method were small scale units and were enjoying the
422
SUPREME COURT REPORTS (2017] 5 S.C.R.
exemption from payment of excise duty on that ground. Therefore, they
were not within the net of revenue in any case. Five registered units
were paying the excise duty. The Depa11ment issued show cause notices
to the two units which were registered with it but not paying the duty, as
according to the Revenue, even the use of power for lifting of water to
overhead tanks for condensation of Turpentine vapours collected as liquid
Turpentine in tanks would be manufacturing process and, therefore, excise
duty payable. Others were not registered and were SS! Units. It so
happened that at some point of time, few of them had ceased to be SS!
units. However, the Department remained unaware of that. It was for
this reason that notices could not be issued to the others. When the
matter is looked from the aforesaid angle, it cannot be said that there
was a conscious practice which was generally prevalent not to recover
duty of excise.
25. No doubt, at the instance of and on the request made by the
Association, a survey was got conducted to find out as to whether there
was any general practice in this behalf or not. The result of the first
survey was unfavourable to the appellant inasmuch as in respect of
registered units, the survey revealed that the general practice of such
units not paying duty was not established. It was noticed that five
registered units were paying duty throughout the period. Two units had
not paid duty and show cause notices were issued to them (these are the
appellant and Gurukripa). The Association of which the appellant was a
men:iber, had sent a list of 250 units obtained by it under the Right to
Information Act. However. what was found was that these units were
unregistered and presumed to be under SS! and, therefore, for these
reasons, the excise duty was not demanded from them. From this, it is
difficult to draw an inference that there was a general practice not to
demand duty. The Association demanded fresh survey and request in
this behalf was received with the backing ofa Minister.
26. As per the appellant, in the second survey, this general practice
stood established. For this purpose, the appellant is relying upon certain
extracts from the Noting dated 20.05.2014 of the Commissioner (Central
Excise). The said Noting, when read in entirety, does not categorically
admit of any such practice. What it reveals is that in the second survey
it was found that 37 unregistered units had crossed SS! exemption limit
at least once, but they were not paying duty during the period in question.
From this the Director in his note had observed that there was practice
M/S. MANGALAM ORGANICS LTD. v. UNION OF INDIA
[A. K. SIKRI, J.]
of not paying the duty. However, what is significant is that the
Commissioner (Central Excise) in his Note dated 20.05.2014 specifically
. stated that he was not in agreement with the aforesaid conclusion arrived
at by the Director, which was highly debatable. He remarked that despite
the judgment of this Court in Collector of Central Excise, Jaipur v.
Rajasthan State Chemical Works, Deedwana, Rajastlrnnt 0 , relevant
question was as to whether there was a practice and non-levy of duty
during the relevant period. This is because Section I IC of the Act comes
into play only when legally the duty is levied but still there is a practice of
non-levy of duty.
423
27. What appears to us is that the Department remained under
the impression that those units which were unregistered and because of C
SSI status exempted from payment of excise duty were not liable to pay
the duty and, therefore, did not issue any notices to them. Even when 37
unregistered units had crossed the SSJ exemption limit at least once, the
Excise Department could not catch them either because of its negligence
or it remained under the bona fide belief that they were still enjoyi11g
the exemption. It is only during the second survey these facts came to
be noticed by the Department. It has come on record that by that time
recovery of duty from them was too late as these cases had become
time barred, meaning thereby, had these cases been within the limitation
period, the Department would have taken action of recovery even qua
them. From this, it cannot be said that there was a general practice.
No doubt, some of the officers have formed an opinion to the contrary
by treating the aforesaid as a case of non-levy of duty. However, as
pointed out above, such a view was termed as debatable. It is only
because of this reason that the matter took a different turn and was
processed on the premise that there was such a practice but still the F
benefit of the notification under Section 11 C, if issued, would be available
only to two units. This can be seen from paragraph 13 of the following
Noting dated 20.05.2014 of the Commissioner (Central Excise):
'"13. In this regard, as pointed out by U.S. at page 97/NS, the
benefit of any 11 C Notification will be available only to 2 units. No G
show cause notice can be issued to the unregistered units for the period
1994-2006 as the same is already time barred. Thus, the trade at large
is not affected. In F.No. 52/2/2008-CX. I, a view has earlier been taken
that the provisions of Section 11 C are exceptional and are generally
10 (1991) 4 sec 473 H
424
applied in an issue affecting the trade at large. Section l l C is not applied
for one or two individual units to override the judicial decision of the
Apex Court rendered against the individual units."
28. When the matter is examined taking into consideration all the
facts in totality, we are of the view that there is no clinching evidence to
suggest the existence of a general practice not to levy excise duty. Under
the impression that it was to be demanded from registered units and five
such registered units were, in fact,. paying the duty, show cause notices
were issued to the remaining two units, namely, the appellant and
Gurukripa. That itself negates the argument of existence of general
practice of not levying the duty of excise. It is stated at the cost of
r~etition that merely because some unregistered firms which were
initially getting the SSI exemption, but omitted to be covered under the
Act on their crossing the SS! limits, would not, in our opinion, establish
any such practice.
29. In this behalf, it also needs to be highlighted that as far as the
Department is concerned, it had taken a categorical stand that even
those units which are using Bhatti method for manufacture ofTurpentine
and Rosin were covered by the Act and that was the reason for issuing
of show cause notices to the two units. This view, which the Department
had nurtured while issuing the notices, has been vindicated in view of
the judgment of this Court in Gurukripa Resins Private Limited.
Interestingly, after the said judgment, even the appellant paid the dt.ity of
excise. The entire effort now is to recover back the said duty by seeking
issuance ofa notification under Section 11 C of the Act. Such a situation,
to our mind, cannot be countenanced.
QUESTION NOS. 2 & 3
In view of our answer to Question No. I, it may not even be
necessary to deal with these two questions. However, since the
Department itself proceeded on the basis that there was a general
practice, we would like to discuss these issues as well on merits. These
G can be taken together for discussion.
30. Insofar as the argument based on obligation of the Government
to issue such a notification is concerned, a clear distinction is to be made
between the duty to act in an administrative capacity and the power to
exercise statutory function. If a public authority is foisted with any duty
H to do an act and fails to discharge that function, mandamus can be issued
MIS. MANGALAM ORGANICS LTD. v. UNION OF INDIA 425
[A. K. SIKRI, J.]
to the said authority to perform its duty. However, that is done while A
exercising the power of judicial review of an administrative action. It is
entirely different from judicial review of a legislative action.
31. According to de Smitltn, the following legal consequences
flow from the aforesaid distinction:
(i) Ifan order is legislative in character, it has to be published in a
certain manner, but it is not necessary ifit is ofan administrative nature.
(ii) If an order is legislative in character, the court will not issue·a
writ of certiorari to quash it, but if an order is an administrative order and
the authority was required to act judicially, the court can quash it by
issuing a writ of certiorari.
(iii) Generally, subordinate legislation cannot be held invalid for
unreasonableness, unless its unreasonableness is evidence ofmalajide
or otherwise shows the abuse of power. But in case of unreasonable
administrative order, the aggrieved party is entitled to a legal remedy.
(iv) Only in most exceptional circumstances can legislati~powers
be sub-delegated, but administrative powers can be sub-delegated.
(v) Duty to give reasons applies to administrative orders but not
to legislate orders.
32. Issuance of a notification under Section I IC of the Act' is in
the nature of subordinate legislation. Directing the Government to issue
such a notification would amount to take a policy decision in a paiticular
manner, which is impermissible. This Court dealt with this aspect recently
in the case of Census Commissioner and Ors. Vs. R.
Krislmamurtlzy12• Following discussion from the said judgment is useful
and worth a quote:
"25. Interference with the policy decision and issue of a mandamus
to frame a policy in a particular manner are absolutely different. The
Act has conferred power on the Central Government to issue Notification
regarding the manner in which the census has to be carried out and the
Central Government has issued Notifications, and the competent authority
has issued directions. It is not within the domain of the Court to legislate.
The courts do interpret the law and in such interpretation certain creative
process is imrolved. The courts have the jurisdiction to declare the law
11 Judicial Review of Administrative Action
12 (201 s) 2 sec 796
426
as unconstitutional. That too, where it is called for. The court may also
fill up the gaps in certain spheres applying the doctrine of constitutional
silence or abeyance. But, the courts are not to plunge into policy making
by adding something to the policy by way of issuing a writ of mandamus.
There the judicial restraint is called for remembering what we have
stated in the beginning. The courts are required to understand the policy
decisions framed by the Executive. If a policy decision or a Notification
is arbitrary, it may invite the frown of Article 14 of the Constitution. But
when the Notification was not under assail and the same is in consonance
with the Act, it is really unfathomable how the High Court could issue
directions as to the manner in which a census would be carried out by
adding certain aspects. It is, in fact, issuance of a direction for framing a
policy in a specific manner.
26. In this context, we may refer to a three-Judge Bench decision
in Sureslz Seth v. Commr., I11dore Mu11icipal Corporation : (2005) 13
SCC 287 wherein a prayer was made before this Court to issue directions
for appropriate amendment in the M.P. Municipal Corporation Act, 1956
so that a person may be debarred from simultaneously holding two
elected offices, namely, that of a Member of the Legislative Assembly
and also of a Mayor of a Municipal Corporation. Repelling the said
submission, the Court held:
•"In our opinion, this is a matter of policy for the elected
representatives of people to decide and no direction in this regard can be
issued by the Court. That apart this Court cannot issue any direction to
the legislature to make any particular kind of enactment. Under out
constitutional scheme Parliament and Legislative Assemblies exercise
sovereign power to enact Jaws and no outside power or authority can
issue a direction to enact a pai1icular piece of legislation. In Supreme
Court Employees' Welfare Assn. v. Union of India MANU/SC/0582/
1989:( 1989) 4 SCC 187 (SCC para 51) it has been held that no court can
direct a legislature to enact a particular law. Similarly, when an executive
authoritv exercises a legislative power by way of a subordinate legislation
pursuant to the delegated authority of a legislature, such executive authority
cannot be asked to enact a law which it has been empowered to do
under the delegated legislative authority. This view has been reiterated
in State of J & K v. A.R. Zakki MANU/SC/0293/1992 : l 992 Supp (1)
SCC 548. In A.K. Roy v. Union 'of India MANU/SC.0051/ 1981 : ( 1982)
MIS. MANGALAM ORGANICS LTD. v. UNION OF INDIA 427
[A. K. SIKRI, J.]
I SCC 271 it was held that no mandamus can be issued to enforce an A
Act which has been passed by the legislature."
29. In this context, it is fruitful to refer to the authority in Rusom
Cavasiee Cooper v. Union of India MANU/SC/0011/1970: (1970) I
sec 248, wherein it has been expressed thus:
"It is again not for this Court to consider the relative merits of the
different political theories or economic policies ... This Court has the
power to strike down a law on the ground of want of authority, but the
Court will not sit in appeal over the policy of Par! iament in enacting a
law"."
33.As can be seen from the extracted portion of the said judgment,
in Supreme Court Employees Welfare Association v. Union of India'"',
it was categorically held that no court can direct a legislature to enact a
particular Jaw. Similarly when an executive authority exercises a
legislative power by way of subordinate legislation pursuant to the
delegated authority of a legislature, such executive authority cannot be
asked to enact the law which it has been empowered to do under the
delegated legislative authority.
34. We may also refer to the judgment of this Co mt in the case of
Common Cause v. Union of India and Otliers14 • In that case, though
the legislature had made amendments in the Delhi Rent Act, it was left
to the Government to notify the date of coming into force the said
amendments. Government did not notify any date. A writ was filed
seeking issuance of mandamus to the Government to notify the date,
which was dismissed by the High Court. While approving the said decision
in the aforesaid judgment, the Court referred to various earlier judgments
on the subject. It was held that not only Parliament is empowered to
give such a power to the executive to decide when the Act is to be
brought into force, but also held that mandamus cannot be issued to the
Government to notify the amendments. In the process, the Court also
made the following observations which are relevant in the present context:
"27. From the facts placed before us it cannot be said that
Government is not alive to the problem or is desirous of ignoring the will
of the Parliament. When the legislature itself had vested the power in
the Central Government to notify the date from which the Act would
13 (1989) 4 sec 187
" (2003 J s sec 2so
428
come into force, then, the Central Government is entitled to take into
consideration various facts including the facts set out above while
considering when the Act should be brought into force or not. No
mandamus can be issued to the Central Government to issue the
notification contemplated under Section l (3) of the Act to bring the Act
into force, keeping in view the facts brought on record and the consistent
view of this Court."
35. Various judgements cited by the appellant would have no
application in the instant case as all these judgments pertain to judicial
review of administrative action. In such cases power of the Court to
issue mandamus certainly exists when it is found that a public authority/
executive is not discharging its statutory duty.
36. The matter can be looked into from another angle as well.
When 'power' is given to the Central Government to issue a notification
to the effect not to recover duty of excise or recover lesser duty than
what is normally payable under the Act, for deciding whether to issue
D such a Notification or not, there may be various considerations in the
mind of the Government. Merely because conditions laid in the said
provisions are satisfied, would not be a reason to necessarily issue such
a notification. It is purely a policy matter. No doubt, the principle against
arbitrariness has been extended to subordinate legislation as well (See :
Indian Express Newspapers, Bombay v. Union of India'-'). At the
same time, the scope of judicial review in such cases is very limited.
Where the statute vests a discretionary power in an administrative
authority, the Court would not interfere with the exercise of such discretion
unless it is made with oblique end or extraneous purposes or upon
extraneous considerations, or arbitrarily, without applying its mind to the
relevant considerations, or where it is not guided by any norms which
are relevant to the object to be achieved.
37. In the counter affidavit filed by the respondent, it is categorically
mentioned that the policy of the Government is not to issue the notification
under Section 11 C of the Act when it benefits only a few assesses. It is
G mentioned that the specific policy of the Government is that when a
large section of trade is affected and any relief is proposed to be given,
a notification under Section 11 C of the Act is issued. When the reasons
furnished by the Government in not exercising its power to issue
notification under Section 11 C of the Act are seen in this perspective,
H "0985) 1sec641
M/S. MANGALAM ORGANICS LTD. v. UNION OF INDIA
[A. K. SIKRI. J.]
namely, such a notification, if issued, is going to benefit only two units,
we find them to be valid and justified. While dealing with the challenge
to the constitutional validity of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002, in the
case of Madria Chemicals Ltd. Etc. Etc. v. Union of India and
others Etc. Etc. 16, this Court noted that the legislature came up with the
said legislation as a matter of policy to have speedier legal method to
recover the dues. It was held that such a policy decision of the legislature
could not be faulted with nor was it a matter to be gone irito by the
courts to test the legitimacy of such a measure relating to financial policy.
As already pointed out above, it is impermissible for this Court to tinker
with such policy decision more particularly when it is found that the
decision is not irrational and is founded on valid considerations. It has
also to be borne in mind that in the instant case the appellant has already
paid the duty. Section 11 C contemplates those situations where duty is
not paid. It does not cover the situation where duty is paid and that is to
be refunded.
38. Examination of the matter in the aforesaid perspective would
provide an answer to most of the arguments of the appellants. It would
neither be a case of discrimination nor it can be said that the appellants
have any right under Atiicle 14 or Article I 9(1 )(g) of the Constitution
which has been violated by non-issuance of notification under Section
11 C of the Act. Once the appellant accepts that in law it was liable to
pay the duty, even if some of the units have been able to escape payment
of duty for certain reasons, the appellant cannot say that no duty should
be recovered from it by invoking Article 14 of the Constitution. It is well
established that the equality clause enshrined in Article 14 of the
Constitution is a positive concept and cannot be applied in the negative.
39. As a result, this appeal is found to be bereft of any merit and
is, accordingly, dismissed.
Divya Pandey Appeal dismissed.
" (2004) 4 sec 311
429