Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7823 OF 2014
M/S BHUWALKA STEEL INDUSTRIES LTD & ANR. Appellant(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
WITH
C.A. No. 7824/2014
C.A. No. 7825/2014
SLP(C) No. 16445/2010
SLP(C) No. 2014/2009
T.C.(C) No. 20/2010
T.C.(C) No. 22/2010
T.C.(C) No. 23-24/2010
T.C.(C) No. 34/2010
T.C.(C) No. 1/2011
T.C.(C) No. 2/2011
T.C.(C) No. 3/2011
T.C.(C) No. 4/2011
T.C.(C) No. 5/2011
T.C.(C) No. 106/2015
T.P.(C) No. 419/2016
Signature Not Verified
Digitally signed by R
NATARAJAN
Date: 2019.12.21
12:37:00 IST
Reason:
T.P.(C) No. 691/2016
T.P.(C) No. 1200/2016
SLP(C) No. 34051/2017
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J U D G M E N T
R.F. Nariman, J.
1) The present reference arises from a judgment of the
Division Bench of this Court reported as Bhuwalka Steel
Industries Limited and Another vs. Union of India and
Others , (2017) 5 SCC 598. The question before the Court was
set out as follows:-
“20. The validity of Rule 5 of the 1997 Rules is
challenged both before the High Court and before
us on two grounds:
1. That the Rule is ultra vires the authority
conferred under Section 3-A of the Act; and
2. That the Rule is violative of Article 14 of
the Constitution of India. Because the Rule
creates two classes of manufacturers:-
(i) whose ACP is determined to be more than their
actual production in the Financial Year 1996-97.
(ii) Whose ACP is determined to be less than
their actual production for the Financial year
1996-97; and
imposes an irrational tax burden on the second of
the above-mentioned two classes of manufacturers
falling within the ambit of the 1997 Rules.”
2) This question has not been answered by the
Division Bench. Instead, the Division Bench went into a
completely different question, which was posed as
follows:-
“51. Whether an assessee who chooses once to pay
duty in terms of Rule 96-ZP(3) can be compelled
to pay duty calculated in accordance with the
said Rule for all times to come without any
regard to the actual production is a question
which requires examination.”
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3) This question was then referred to a larger Bench as
follows:-
“63. Therefore, we find it difficult to accept
the submission of the respondent that the issue
is covered by the judgments of this Court in
Venus Castings (2000) 4 SCC 206 and Supreme
Steels (2001) 9 SCC 645. In our opinion, for the
reasons mentioned above, these two judgments
require a further examination. Apart from that,
these judgments did not deal with vires of Rule
96-ZP(3). However, in view of the fact that
Supreme Steels is a decision rendered by a Bench
of three learned Judges, we deem it appropriate
that the question of law be settled by a Bench of
an appropriate strength. We, therefore, direct
the Registry to place the matter before Hon'ble
the Chief Justice of India for further orders.”
4) Mrs. Nalini Chidambaram, learned Senior Advocate
appearing on behalf of the appellant-assessee, states that
she came to Court challenging the vires of Rule 5 instead
of which a completely different question has been referred
to a larger Bench. She further submits that she is not, in
any way, challenging the fact that an assessee can be
compelled to pay duty in terms of Rule 96-ZP(3) without
regard to actual production which is laid down Section
3A(4) of the Central Excise Act.
5) This being the case, we answer this reference by
stating that the question posed before us did not arise at
all on facts and the question which has been referred is
not something which the assessee disputes. Accordingly,
the matter is sent back to a Division Bench to decide the
questions stated in para 20 of Bhuwalka Steel Industries
Limited and Another (supra) . The issues other than the
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issue raised in para 51 of the judgment in Bhuwalka Steel
Industries Limited and Another (supra) may also be decided
in the other tagged matters by the Division Bench.
6) The appeals and the tagged matters be placed before a
Division Bench of this Court.
.......................... J.
(ROHINTON FALI NARIMAN)
.......................... J.
(ANIRUDDHA BOSE)
.......................... J.
(V. RAMASUBRAMANIAN)
New Delhi;
December 05, 2019.