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Friday, July 31, 2015

The respondent herein impugned the validity of Notifications Nos.102/87-CE and 103/87-CE, both dated 27.03.1987, whereby whole of the duty of excise was exempted in respect of iron and steel scrap obtained by breaking the ship subject to the condition that customs duty should have been levied at the rate of Rs.1400/- per Light Displacement Tonnage (LDT). With the stipulation of such a condition, giving the exemption of payment of excise duty only to those who had paid customs duty at Rs.1400/- per LDT, another class of persons who also paid custom duty under Section 3 of the Customs Tariff Act, 1975, albeit at a lesser rate, was excluded. The respondent who belonged to excluded category, had challenged the said Notification as arbitrary and violative of Article 14 of the Constitution.=This court in Ayurveda Pharmacy [(1989) 2 SCC 285], held that two items of the same category cannot be discriminated and where such a distinction is made between items falling in the same category it should be done on a reasonable basis, in order to save such a classification being in contravention of Article 14 of the Constitution of India.” It was contended by the learned senior counsel for the appellants that purpose was to give exemption only to those who paid custom duty at Rs.1,400/- per LDT and since the duty paid by the respondent herein was lesser in amount, respondent could not ask for exemption. That may be so. In such a case, the only option to bring parity was to demand duty on differential amount, which was even contended by the respondent herein. That provision should have been incorporated to save the impugned Notification from the vice of arbitrariness. In fact, that would bring both the sub-categories completely at par. Thus, while upholding the view taken by the High Court, we modify the same only to the extent that the respondent herein shall also be entitled to the benefit of the exemption Notification subject to the condition that the duty already paid by the respondent herein on LDT, would be taken into account and only the balance out of it would be subject to excise duty.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 1795 OF 2005


|UNION OF INDIA & ORS.                      |.....APPELLANT(S)           |
|VERSUS                                     |                            |
|M/S N.S. RATHNAM & SONS                    |.....RESPONDENT(S)          |


                               J U D G M E N T


A.K. SIKRI, J.

       The  respondent  herein  impugned  the  validity   of   Notifications
Nos.102/87-CE and 103/87-CE, both dated 27.03.1987,  whereby  whole  of  the
duty of excise was exempted in respect of iron and steel scrap  obtained  by
breaking the ship subject to the condition that  customs  duty  should  have
been levied at the rate of Rs.1400/- per Light Displacement  Tonnage  (LDT).
With the stipulation of such a condition, giving the  exemption  of  payment
of excise duty only to those who had paid  customs  duty  at  Rs.1400/-  per
LDT, another class of persons who  also paid custom duty under Section 3  of
the Customs Tariff Act, 1975, albeit at a lesser rate,  was  excluded.   The
respondent who belonged  to  excluded  category,  had  challenged  the  said
Notification as arbitrary and violative of Article 14 of  the  Constitution.
Though the learned Single Judge dismissed the writ  petition,  the  Division
Bench in appeal has accepted the aforesaid plea of the respondent  and  vide
judgment dated 18.08.2003 held that the second  category  of  persons  shall
also be entitled to the benefit of this Notification.  It is  this  judgment
which is impugned by the Union of India and is the  subject  matter  of  the
instant appeal.


The facts which are  relevant  to  the  aforesaid  controversy  need  to  be
traversed at this stage.  These are as follows:
            The respondent  herein  is  engaged  in  the  business  of  ship
breaking activities.  It had imported a foreign vessel  “M.V.  Gonong  Mass”
for the purpose of breaking it and selling  it  as  scrap.   This  ship  was
purchased by the respondent as a successful tenderer  for  a  sum  of  Rs.61
lakhs and at the time of import, the Collector of Customs, Cochin,  assessed
the custom duty and additional duty payable under Section 3 of  the  Customs
Tariff Act, 1975 on this ship on ad-valorem basis and customs  duty  in  the
sum of Rs.62,16,796.55 was levied on the movable articles in the ship;  body
of the ship was assessed at 30% and 50%  ad-valorem  and  additional  custom
duty i.e. countervailing duty at 12% ad-valorem.  The respondent  also  paid
a sum of Rs.5,68,660/- as sales tax.

After import of the ship, the same was  dismantled  and  broken  from  which
iron and steel scrap was taken out.  This iron and steel scrap  is  exigible
to excise duty.  The respondent has  registered  itself  under  the  Central
Excise Act.  The aforesaid iron  and  steel  scrap  which  was  obtained  by
breaking the ship was cleared  by  the  respondent  on  payment  of  central
excise duty at the rate of Rs.365/- per tonne as per Notification No.146/86-
CE dated 01.03.1986.  Upto this point, there is no  dispute.   The  relevant
period with which  we  are  concerned  is  from  08.08.1986  to  27.07.1987.
During this period, the following materials were cleared:
|09.08.1986 to 26.03.1987             |-|3058.49 MT            |
|27.03.1987 to 30.06.1987             |-|1249.715 MT           |
|01.07.1987 to 27.07.1987             |-|408.180 MT            |

There are certain exemption Notifications issued by the Government of  India
under sub-rule (1) of Rule  8  of  the  Central  Excise  Rules,  1944.   The
details of these Notifications are as under:
      Notification No.146/86-CE dated 01.03.1986  which  pertains  to  “iron
and steel from breaking the ship”.   It  provides  for  exemption  of  goods
falling under Heading No.72.15 and 73.09 of  the  Schedule  to  the  Central
Excise Tariff Act, 1985, from  so  much  of  the  duty  or  excise  leviable
thereon, which is specified in the  said  Schedule,  as  in  excess  of  the
amount calculated at the rate of Rs.305 per  tonne.   Proviso  to  the  said
Notification lays down the conditions which need to be  fulfilled  to  avail
the benefit of this Notification.  This proviso reads as under:
“Provided that the said goods have been obtained  from  breaking  of  ships,
boats and other floating structures-

      (i)  On which  duty  of  customs  leviable  thereon  under  the  First
Schedule to the Customs Tariff Act, 1975 (51 of 1975) has been paid  at  the
rate of Rs.1,400/- per Light Displacement tonnage; or

      (ii)  Imported on or before the 28th day  of  February,  1986  and  on
which appropriate additional duty leviable thereon under Section  3  of  the
Customs Tariff Act, 1975 (51 of 1975), has been paid.”


The aforesaid Notification was superseded by another Notification No.386/86-
CE dated 20.08.1986.  Under this Notification, whole of the duty  of  excise
stood exempted on meeting  the  conditions  mentioned  in  proviso  thereto,
provided that the said goods have been  obtained  from  breaking  of  ships,
boats and other floating structures-
on which duty of customs leviable thereon under the First  Schedule  to  the
Customs Tariff Act, 1975  (51  of  1975)  has  been  paid  at  the  rate  of
Rs.1,400/- per LDT; or
(ii)  imported on or before the 28th day of  February,  1986  and  on  which
appropriate additional duty leviable thereon under Section 3 of the  Customs
Tariff Act, 1975 (51 of 1975), has been paid.

Within few months, another Notification No.102/87-CE  dated  27.03.1987  was
issued which superseded Notification No.386/86-CE dated 20.08.1986 as  well.
  In  this  Notification,  again  partial  exemption  was  provided.    This
exemption was from so much of the duty of excise leviable thereon, which  is
specified in the Schedule to the Central Excise Tariff Act, as in excess  of
the amount calculated at the rate of Rs.365  per  tonne.   However,  in  the
proviso, the condition that was stipulated which had to be met to avail  the
exemption, reads as under:
“Provided that the said goods have been obtained  from  breaking  of  ships,
boats and other floating structures on which  has  been  paid  the  duty  of
customs leviable under the First Schedule to the customs  Tariff  Act,  1975
(51 of 1975) at the rate of Rs.1,035/- per Light  Displacement  Tonnage  and
also the additional duty leviable  thereon  under  Section  3  of  the  said
Customs Tariff Act at the rate of Rs.365 per Light Displacement Tonnage.”


On the same day, another  Notification  No.103/87-CE  dated  27.03.1987  was
also issued.  Vide this Notification, goods were exempted from whole of  the
duty or excise leviable thereon as specified in  the  Schedule  to  the  Act
falling under the same Heading Nos. i.e. 72.15 and 73.09 on the  fulfillment
of the condition contained in proviso to this Notification, which  reads  as
follows:
“Provided that the said goods have been obtained  from  breaking  of  ships,
boats and other floating structures on which the duty  of  customs  leviable
thereon under the First Schedule to the Customs  Tariff  Act,  1975  (51  of
1975) has been paid  at  the  rate  of  Rs.1,400/-  per  Light  Displacement
Tonnage.”


These two Notifications, both  dated  27.03.1987,  pertain  to  same  goods,
namely, those falling under Headings 72.15 and 73.09 of  the  said  Schedule
to the Act.  However, vide first Notification No.102/87-CE, if  the  customs
duty leviable on the import of ship for the purpose of breaking is  paid  at
the rate of Rs.1,035/- per LDT along with additional duty  leviable  thereon
under Section 3 of the Customs Tariff Act, the excise  duty  payable  is  at
the rate of Rs.365/- per tonne, exempting the remainder as specified in  the
Schedule.  On the other hand,  as  per  Notification  No.103/87-CE,  if  the
customs duty has been paid at the rate  of  Rs.1400/-  per  LDT,  the  scrap
obtained from breaking of such ships is  exempted  from  the  entire  excise
duty.

The respondent herein had paid the duty at the rate of  Rs.1035/-  per  LDT,
albeit, as leviable under the first Schedule  to  the  Customs  Tariff  Act.
However, as the respondent had cleared the  goods  without  payment  of  any
excise duty on the assumption that there was exemption of payment of  entire
excise duty, appellant herein issued  show  cause  notice  dated  28.07.1987
calling  upon  the  respondent  to  show  cause  as  to  why  an  amount  of
Rs.25,73,487/- towards excise duty be not demanded under  Section  11  A  of
the Central  Excise  Act.   Receipt  of  the  aforesaid  show  cause  notice
prompted the respondent to file the writ  petition  in  the  High  Court  of
Madras and challenge the validity of Notification dated  27.03.1987  on  the
ground that by this Notification, total exemption was granted only to  those
persons who had paid customs duty at the rate  of  Rs.1400/-  LDT.   It  was
pleaded that by a Notification dated 20.08.1986, the whole of  the  duty  of
excise levied was exempted if the  two  conditions  as  set  out  above  are
satisfied.  The limited exemption  in  excess  of  Rs.365/-  per  tonne  was
restored by the  third  Notification  dated  27.03.1987.   However,  by  the
impugned Notifications issued on the very  same  day,  total  exemption  was
granted only to those persons who have paid customs duty at  Rs.1,400/-  per
LDT.  According to the respondent, it has resulted in a distinction  between
two categories of persons who have  paid  customs  duty,  viz.  one  set  of
persons who have paid customs duty at the rate of  Rs.1,400/-  per  LDT  and
the second set of persons who  have  paid  customs  duty  of  lesser  amount
though as per Section 3 of the Customs Tariff Act, 1975.  This  distinction,
pleaded the respondent, was arbitrary, artificial and has no nexus with  the
object that is sought to be achieved.  When customs duty  is  payable  under
either of the two methods, it is not understood  why  exemption  is  granted
only to one set of persons paying customs duty in  a  particular  method  of
assessment.

The learned Single Judge was not convinced with the aforesaid  case  set  up
by the respondent.  He reasoned that the Court could not direct the  Central
Government to extend the Notification to a class to whom  it  has  not  been
extended as that was a matter which was entirely within  the  discretion  of
the Central Government.  Sustenance was drawn  from  the  judgment  of  this
Court in Kasinka Trading and  Another  v.  Union  of  India  and  Another[1]
wherein this Court has  held  that  wide  discretion  is  available  to  the
Government in the matter of granting, curtailing, withholding, modifying  or
repealing  the  exemptions  granted  by  earlier   notifications   and   the
Government was not bound to grant exemption to anyone if it so desires.

The  respondent  preferred  writ  appeal  against  the  said  judgment.  The
Division Bench vide impugned judgment  has  reversed  the  decision  of  the
learned Single Judge finding  sufficient  merit  in  the  case  set  up  and
pleaded by the respondent.  It is held by the Division Bench that  when  the
benefit of concessional right is restored by a  notification,  there  cannot
be any discriminatory treatment  to  some  persons  who  fall  in  the  same
category. According to the Division Bench, both the categories of  importers
paid the duty as leviable under Customs Tariff Act.  Once a choice is  given
under the said Act and the duty is  paid  accordingly,  merely  because  the
rate of duty arrived at  is  different  would  not  be  rational  basis  for
excluding the other class.  This reasoning of the High Court  can  be  found
in  paras  10  and  11  of  the  impugned  judgment  which  are   reproduced
hereinbelow:

“10.  From the notification or from the Counter Affidavit, we are unable  to
find any rational basis for treating two  categories  of  persons  who  have
paid the customs duty differently and hence, the  failure  to  consider  the
duty already paid by the appellants on ad valorem basis, on the face of  it,
is illegal and therefore, the impugned notifications,  which  did  not  make
any provision for such of those remittance made under the  second  category,
are clearly arbitrary.  As rightly pointed out, the  exemption  from  excise
duty is to avoid double taxation and the withdrawal of exemption would  mean
that the persons would be paying additional duty under the  Customs  Act  as
well as the excise duty.  It is further seen that the person  who  had  paid
the customs duty at the rate of Rs.1,400/- per  Light  Displacement  Tonnage
would have been totally exempted from the payment of excise  duty.   In  the
light of this clear and palpable discrimination without any rational  basis,
we are of the view that the appellants have made out a  case  and  that  the
impugned notifications are liable to be quashed in so far as the  appellants
is concerned.

11.  The Supreme Court, in Government of India Vs.  Dhanalakshmi  Paper  and
Board Mills, Tiruchirappalli, A.I.R.  1989  S.C.  665,  has  held  that  the
benefit of  concessional  right  was  bestowed  upon  the  entire  group  of
assesses. The division of two  classes  without  adopting  any  differentia,
having a rational relation  to  the  object  of  the  notification  and  the
withdrawal of the benefit to one class, while retaining it in favour of  the
other is ultra vires.  In Thermax Private Limited Vs. Collector  of  Customs
(Bombay), A.I.R. 1993 S.C. 1339, the Supreme Court held that if  the  person
using the goods is entitled to remission, the importer will be  entitled  to
say that C.V.D. should only be the amount of concessional  duty  and  if  he
has paid more, he will be entitled to ask for refund.  Section 3(1)  of  the
Customs Tariff Act, 1975 mandates that the  C.A.V.  will  be  equal  to  the
excise duty for the time being leviable on a like  article  if  produced  or
manufactured in India.”

Mr. Panda, learned senior counsel appearing for  the  appellants,  submitted
that it was entirely within the domain of the Government to  give  exemption
to particular class of assessees and it being a policy  decision,  it  would
not be open to the High Court to tinker with the same.   For  this  purpose,
he relied on the judgment of this Court in Kasinka Trading's  case,  and  in
particular paras 8 and 21 thereof, which are as follows:
8. Section 12 of the Customs Act, which is the  charging  section,  provides
that duties of customs shall be levied at such rates  as  may  be  specified
under the Customs Tariff Act, 1975 or any other law for the  time  being  in
force on the goods imported into India. Section  2  of  the  Customs  Tariff
Act, 1975 read with the First and Second Schedules  thereto  lays  down  the
rates at which duties of customs shall be levied under the  Customs  Act  on
various goods imported into India. Section 25 of the Act, with which we  are
primarily concerned in this batch of appeals, confers powers on the  Central
Government to grant exemptions from levy of duty in “public interest”.  Sub-
sections (1) and (2) of Section 25  which  are  relevant  for  our  purposes
provide as under:
“25. Power to grant exemption from duty.— (1) If the Central  Government  is
satisfied that it is necessary in the public interest so to do  it  may,  by
notification in the Official Gazette, exempt generally either absolutely  or
subject to such conditions (to be fulfilled before or after  clearance),  as
may be specified in the notification  goods  of  any  specified  description
from the whole or any part of duty of customs leviable therein.
(2) If the Central Government is satisfied  that  it  is  necessary  in  the
public interest so to do, it may, by special  order  in  each  case,  exempt
from the payment of duty, under circumstances of an  exceptional  nature  to
be stated in such order, any goods on which duty is leviable.”
The power to grant exemption from duty, wholly or  in  part,  on  the  plain
language of Section 25 (supra) is contingent upon the  satisfaction  of  the
Government that it would be in “public interest” to  do  so.  Thus,  “public
interest” is the guiding criterion for exercising the  power  under  Section
25 (supra).
                          xx          xx         xx
21. The power to grant exemption from payment of duty, additional duty  etc.
under the Act, as already noticed, flows  from  the  provisions  of  Section
25(1) of the Act. The power to  exempt  includes  the  power  to  modify  or
withdraw the same. The liability to pay  customs  duty  or  additional  duty
under the Act arises when the taxable event occurs. They  are  then  subject
to the payment of duty as prevalent on the date of the entry of  the  goods.
An exemption notification issued under Section 25 of the Act had the  effect
of suspending the collection of customs duty. It does not make  items  which
are subject to levy of customs duty etc.  as  items  not  leviable  to  such
duty. It only suspends the  levy  and  collection  of  customs  duty,  etc.,
wholly or partially and subject to such conditions as may be  laid  down  in
the notification by the Government in “public interest”. Such  an  exemption
by its very nature is susceptible of being revoked or modified or  subjected
to  other  conditions.  The  supersession  or  revocation  of  an  exemption
notification in the “public interest” is an exercise of the statutory  power
of the State under the law  itself  as  is  obvious  from  the  language  of
Section 25 of the Act. Under the General Clauses Act an authority which  has
the power to issue a notification has the  undoubted  power  to  rescind  or
modify the notification in a like manner. From the very nature of  power  of
exemption granted to the Government under Section 25 of the Act, it  follows
that the same is with  a  view  to  enabling  the  Government  to  regulate,
control  and  promote  the  industries  and  industrial  production  in  the
country. Notification No. 66 of 1979 in our opinion,  was  not  designed  or
issued to induce the appellants to import PVC resin.  Admittedly,  the  said
notification  was  not  even  intended  as  an  incentive  for  import.  The
notification on the plain language of it was conceived  and  issued  on  the
Central Government “being satisfied that  it  is  necessary  in  the  public
interest so to do”. Strictly speaking, therefore,  the  notification  cannot
be said to have extended any ‘representation’ much less  a  ‘promise’  to  a
party getting the benefit of it to enable  it  to  invoke  the  doctrine  of
promissory estoppel against the State. It  would  bear  repetition  that  in
order to invoke the doctrine of promissory estoppel, it  is  necessary  that
the promise which  is  sought  to  be  enforced  must  be  shown  to  be  an
unequivocal  promise  to  the  other  party  intended  to  create  a   legal
relationship and that it was acted upon as such by the  party  to  whom  the
same was made. A notification issued under Section 25 of the Act  cannot  be
said to be holding out of any such unequivocal  promise  by  the  Government
which was intended to create any legal relationship between  the  Government
and the party drawing benefit flowing from of the said notification. It  is,
therefore, futile to contend that even if the public  interest  so  demanded
and the Central Government was satisfied that the exemption did not  require
to be extended any further, it could still not withdraw the exemption.

      He stated that the principle laid down in the  aforesaid  judgment  is
followed and reiterated in Shrijee Sales Corporation and  Another  v.  Union
of India[2] and Reliance Industries Ltd. v.  Pravinbhai  Jasbhai  Patel  and
Others[3].

He also referred to Ground A in the writ petition  and  submitted  that  the
plea of the respondent was that the duty  already  paid  by  the  respondent
should have been taken into account and only the balance out  of  it  should
have been the rate of duty.  He, thus, submitted that this  aspect  has  not
been taken into consideration by the High Court in the impugned judgment.

Learned counsel for the respondent, on  the  other  hand,  argued  that  all
those who paid excise duty as per the provisions of the Act  constitute  one
single class and, therefore, by restricting the benefit to  only  those  who
had paid custom duty at the rate of Rs.1,400/- per LDT and  excluding  other
sets of persons like appellants  amounted  to  hostile  discrimination  and,
therefore, the High Court rightly held the Notification to be  violative  of
Article 14 of the Constitution.

The judgment of this Court in Kasinka Trading's case, no  doubt,  lays  down
the principle that there is wide discretion available to the  Government  in
the matter of granting, curtailing, withholding, modifying or repealing  the
exemptions granted by earlier Notifications.  It is also  correct  that  the
Government is not bound  to  grant  exemption  to  anyone  to  which  it  so
desires.  When the duty is payable under the provisions of  the  Act,  grant
of exemption from payment of the said duty to particular  class  of  persons
or products etc. is entirely within the discretion of the Government.   This
discretion rests on various factors  which  are  to  be  considered  by  the
Government as these are policy decisions. In the present case, however,  the
issue is not of granting or not granting the exemption.  When the  exemption
is granted to a particular class of persons, then the benefit thereof is  to
be extended to all similarly  situated  person.   The  Notification  has  to
apply  to  the  entire  class  and  the  Government   cannot   create   sub-
classification thereby excluding one sub-category, even when both  the  sub-
categories are of same genus.  If that is done, it would  be  considered  as
violating the equality clause enshrined in Article 14 of  the  Constitution.
Therefore, judicial review of such Notifications is permissible in order  to
undertake the scrutiny as to whether the Notification results  in  invidious
discrimination between two persons though they belong  to  the  same  class.
In Aashirwad Films v. Union of India and Others[4],  this  aspect  has  been
articulated in the following manner:
9. The State undoubtedly enjoys greater latitude in the matter of  a  taxing
statute. It may impose a tax on a class of people, whereas it may not do  so
in respect of the other class.

10. A taxing statute, however, as is well known, is not beyond the  pale  of
challenge under Article 14 of the Constitution of India.


11. In Chhotabhai Jethabhai Patel & Co. v. Union of India, AIR 1962 SC  1006
it was stated: (AIR p. 1021, para 37)
“37. But it does not  follow  that  every  other  article  of  Part  III  is
inapplicable to tax laws. Leaving aside Article 31(2)  that  the  provisions
of a tax law within legislative competence could be  impugned  as  offending
Article 14 is exemplified by such decisions of  this  Court  as  Suraj  Mall
Mohta & Co. v. A.V. Vishvanatha Sastri (AIR 1954 SC 545 : (1955) 1 SCR  448)
and Meenakshi Mills Ltd. v. A.V. Visvanatha Sastri (AIR 1955 SC 13 :  (1955)
1 SCR 787).  In K.T. Moopil Nair v. State of Kerala (AIR 1961  SC  552)  the
Kerala Land Tax Act was struck down as  unconstitutional  as  violating  the
freedom guaranteed by Article 14. It also goes without saying  that  if  the
imposition of the tax was discriminatory as  contrary  to  Article  15,  the
levy would be invalid.”

12.   A taxing statute, however, enjoys a greater latitude. An inference  in
regard to contravention of Article 14 would, however,  ordinarily  be  drawn
if it seeks to impose on the same class of persons or occupations  similarly
situated or an instance of taxation which leads to  inequality.  The  taxing
event under the Andhra  Pradesh  State  Entertainment  Tax  Act  is  on  the
entertainment of a person. Rate of entertainment tax is  determined  on  the
basis of the amount collected from the visitor of a cinema theatre in  terms
of the entry fee charged from a viewer by the owner thereof.

It is, thus, beyond any pale of doubt that the justiciability of  particular
Notification  can  be  tested  on  the  touchstone  of  Article  14  of  the
Constitution.  Article  14,  which  is  treated  as  basic  feature  of  the
Constitution, ensures equality before the law or equal protection  of  laws.
Equal  protection  means  the  right   to   equal   treatment   in   similar
circumstances, both in the  priviliges  conferred  and  in  the  liabilities
imposed.  Therefore,  if  the  two  persons  or  two  sets  of  persons  are
similarly situated/placed, they have to be treated  equally.   At  the  same
time, the principle of equality does not  mean  that  every  law  must  have
universal application for all persons who are not by nature,  attainment  or
circumstances in the same position.  It would mean that the  State  has  the
power to classify persons  for  legitimate  purposes.   The  legislature  is
competent to exercise its discretion and make classification.   Thus,  every
classification is in some degree likely to produce some inequality but  mere
production of inequality is not enough.  Article  14  would  be  treated  as
violated only when equal protection is denied  even  when  the  two  persons
belong to same class/category.  Therefore, the person  challenging  the  act
of the State as violative of Article  14  has  to  show  that  there  is  no
reasonable basis for the differentiation between the two classes created  by
the State.  Article  14  prohibits  class  legislation  and  not  reasonable
classification.  What follows from the above is that in order  to  pass  the
test  of  permissible  classification  two  conditions  must  be  fulfilled,
namely, (i) that the classification  must  be  founded  on  an  intelligible
differential  which  distinguishes  persons  or  things  that  are   grouped
together from others left out of the group and (ii) that, that  differential
must have a rational relation to the object sought to  be  achieved  by  the
statute in question.  If the government  fails  to  support  its  action  of
classification  on   the   touchstone   of   the   principle   whether   the
classification is  reasonable  having  an  intelligible  differentia  and  a
rational basis germane to the purpose, the classification has to be held  as
arbitrary and discriminatory.  In Sube Singh v. State  of  Haryana[5],  this
aspect is highlighted by the Court in the following manner:
10. In the counter and the  note  of  submission  filed  on  behalf  of  the
appellants it is averred, inter alia, that the  Land  Acquisition  Collector
on considering the objections filed by the  appellants  had  recommended  to
the State Government for exclusion of the properties of appellants 1  and  3
to 6 and the State Government had not accepted such recommendations only  on
the ground that the constructions made by the appellants were of 'B' or  'C'
class and could not be easily amalgamated into the  developed  colony  which
was proposed to be built. There is no  averment  in  the  pleadings  of  the
respondents stating the basis of classification of  structures  as  'A'  'B'
and 'C' class, nor is it stated  how  the  amalgamation  of  all  'A'  class
structures was feasible and possible  while  those  of  'B'  and  'C'  class
structures was not possible. It is not the case of the State Government  and
also not  argued  before  us  that  there  is  no  policy  decision  of  the
Government  for  excluding  the  lands  having   structures   thereon   from
acquisition under the Act. Indeed, as noted  earlier,  in  these  cases  the
State Government has accepted the request of some land owners for  exclusion
of their properties on this very ground. It remains to be seen  whether  the
purported classification of existing structures into 'A', 'B' and 'C'  class
is a reasonable classification having an  intelligible  differential  and  a
rational basis germane to the purpose. If  the  State  Government  fails  to
support its action on the  touchstone  of  the  above  principle  then  this
decision has to be held as arbitrary and discriminatory. It is  relevant  to
note here that the acquisition of the lands is for the  purpose  of  planned
development of the area  which  includes  both  residential  and  commercial
purposes. That being the purpose of acquisition it is  difficult  to  accept
the case of the State Government that  certain  types  of  structures  which
according to its own classification are of  'A'  class  can  be  allowed  to
remain while other structures situated in close vicinity and being used  for
same purposes (residential or commercial) should be demolished. At the  cost
of repetition, it may be stated here that no material was placed  before  us
to show the basis of classification of the existing structures on  the  land
proposed to be acquired. This assumes importance in  view  of  the  specific
contention  raised  on  behalf  of  the  appellants  that  they  have  pucca
structures with R.C. roofing, Mozaic flooring etc. No attempt was also  made
from the side of the State Government to place  any  architectural  plan  of
different types of  structures  proposed  to  be  constructed  on  the  land
notified for acquisition in support of its contention  that  the  structures
which exist on the lands of the appellants could  not  be  amalgamated  into
the plan.


The question, therefore, that arises is as to whether  the  two  categories,
one mentioned in  Notification  No.386/86-CE  dated  20.08.1986,   which  is
given the benefit and removal of the second category,  which  was  initially
granted same benefit vide Notification  No.102/87-CE  dated  27.03.1987,  is
discriminatory.  To put it otherwise, we have to see as to whether  the  two
categories are identical or there is a reasonable  classification  based  on
intelligible differentia which has nexus with some objective that is  sought
to be achieved.  The test in this behalf that is to be applied can again  be
culled out from the judgment in Aashirwad's case.  It is summarized in  para
14, after taking note of various earlier  judgments.   This  para  reads  as
under:
14.  It has been accepted without dispute that taxation laws must also  pass
the test of Article 14 of the Constitution of India. It has been  laid  down
in a large number of decisions of this Court that  a  taxation  statute  for
the reasons of functional  expediency  and  even  otherwise,  can  pick  and
choose to tax some. Importantly, there is a rider  operating  on  this  wide
power to tax and even discriminate in taxation that the classification  thus
chosen must be reasonable. The  extent  of  reasonability  of  any  taxation
statute lies in its efficiency to achieve the object sought to  be  achieved
by the statute. Thus, the classification must bear a nexus with  the  object
sought to be achieved. (See Moopil Nair v. State  of  Kerala,  AIR  1961  SC
552, East India Tobacco  Co.  v.  State  of  A.P.,  AIR  1962  SC  1733,  N.
Venugopala Ravi Varma Rajah v. Union of India (1969) 1 SCC 681  :  AIR  1969
SC 1094, Asstt.  Director  of  Inspection  Investigation  v.  A.B.  Shanthi,
(2002) 6 SCC 259 : AIR 2002 SC 2188 and Associated Cement Companies Ltd.  v.
Govt. of A.P., (2006 ) 1 SCC 597 : AIR 2006 SC 928).

In the  present  case,  we  find  that  the  two  Notifications  both  dated
27.03.1987 pertain to same goods namely those falling  under  Heading  72.15
and 73.09 of the second Schedule to the Act. Customs  duty  is  leviable  on
these goods under Section 3 of the Customs Tariff Act.  The  said  duty  can
be paid under any of the two methods.   When  two  methods  are  permissible
under the statutory scheme itself, obviously option is that of the  assessee
to choose in all those methods to pay the custom duty.  Duty, thus, paid  is
to be naturally treated as validly paid.  Merely because with  the  adoption
of one particular method the duty that becomes payable is lesser  would  not
mean that two such persons belong to different  categories.   The  important
factors for the purposes of parity are same in the instant  case,  viz.  the
goods are same; they fall under the same Heading  and  the  custom  duty  is
leviable as per the Act  which  has  been  paid.   Therefore,  the  impugned
Notification giving exemption only to those persons who  paid  a  particular
amount of duty, namely Rs.1,400/- per LDT, would not mean that such  persons
belong to a different category and would be entitled to  exemption  and  not
other persons like the respondent herein who  paid  the  duty  on  the  same
goods under the same Act but on the formula which  he  opted  and  which  is
permissible, which rate of duty comes to  Rs.1,035/- per LDT.

It is also important to bear in mind that the appellants have not  supported
the withdrawal of exemption by any cogent explanation.  The High  Court  has
noted, and rightly so, that Ground C was taken  by  the  respondent  in  the
writ petition specifically urging that no rational policy is  mentioned  for
creating two different classes and  no  reply  to  this  was  given  by  the
appellants even in the counter affidavit filed to the said petition. On  the
other hand, the specific case made  out  by  the  respondent  was  that  the
purpose behind Notification No.146/86-CE  dated 01.03.1986 and  Notification
No.386/86-CE dated 20.08.1986 was to treat the ships imported on  or  before
28.02.1986 differently and to avoid  double  taxation  and  additional  duty
equivalent to excise duty.  For this reason, exemption  Notification  became
necessary which provided exemption from excise duty.   It  was  argued  that
the withdrawal of  the  exemption  duty  in  the  cases  like  that  of  the
respondent amounted to double taxation.  Even this could not be  refuted  by
the appellants.

We are conscious of the principle that the difference which will  warrant  a
reasonable classification need not be great.  However, it has  to  be  shown
that the difference is real and substantial and there must be some just  and
reasonable  relation  to  the  object  of   legislation   or   notification.
Classification having regard to microscopic differences  is  not  good.   To
borrow the phrase from the judgment in Roopchand Adlakha v.  D.D.A.[6]:  “To
overdo classification is to undo equality.”

We are also conscious of the principle that in the field  of  taxation,  the
Legislature has an extremely wide  discretion  to  classify  items  for  tax
purposes, so long as it  refrains  from  clear  and  hostile  discrimination
against particular persons or classes (See Secretary to Govt. of  Madras  v.
P.R.  Sriramulu[7]).   However,  at  the  same  time,  when  a   substantive
unreasonableness is to be found in a  taxing  statute/notification,  it  may
have to be declared unconstitutional.  Although the Court may  not  go  into
the question of a hardship which may be occasioned to  the  tax  payers  but
where a fair procedure has not been laid down, the validity  thereof  cannot
be upheld.  A statute which provides for civil  or  evil  consequences  must
conform to the test of reasonableness, fairness and non-arbitrariness.

In State of U.P. v. Deepak Fertilizers & Petrochemical Corporation  Ltd.[8],
this aspect is succinctly brought about as is apparent  from  the  following
passages in that judgment:
“15. The learned counsel appearing for the State relying heavily  on  Kerala
Hotel and Restaurant Assn. v. State of Kerala, (1990) 2 SCC  502,  contended
that the State has widest latitude where measures  of  economic  and  fiscal
regulation are concerned. There is no dispute on this principle  of  law  as
enumerated in the aforesaid decision of this Court. However, this  same  law
must not be repugnant to Article 14 of the Constitution  i.e.  it  must  not
violate the  right  to  equality  of  the  people  of  India,  and  if  such
repugnancy prevails then, it shall stand  void  up  to  the  level  of  such
repugnancy under Article 13(2) of  the  Constitution  of  India.  Therefore,
every law has to pass  through  the  test  of  constitutionality,  which  is
nothing but a formal name of the test of  rationality.  We  understand  that
whenever there is to be made any type of law  for  the  purpose  of  levying
taxes on a particular commodity  or  exempting  some  other  commodity  from
taxation, a  sought  of  classification  is  to  be  made.  Certainly,  this
classification cannot be a product of blind approach by  the  administrative
authorities on which the responsibility of delegated legislations is  vested
by the Constitution. In a nutshell, the notifications issued  by  the  Trade
Tax Department of the State of U.P., dated 10.04.1995  and  15.05.1995  lack
the sense of reasonability because it is  not  able  to  strike  a  rational
balance of classification between the items  of  the  same  category.  As  a
result of this, NPK 23:23:0 is not given  exemption  from  taxation  whereas
all other NPK fertilisers of the same category like that of NPK 20:20:0  are
provided with the exemption from taxation.



16. The reasonableness of  this  classification  must  be  examined  on  the
basis, that when the object of the taxing provision is not to tax  the  sale
of certain chemical fertilisers included in the list, which  clearly  points
out that all the fertilisers with the similar compositions must be  included
without excluding any other chemical fertiliser which has the same  elements
and compositions. Thus, there is no reasonable nexus of such  classification
among various chemical fertilisers of the same  class  by  the  state.  This
court in Ayurveda Pharmacy [(1989) 2 SCC 285], held that two  items  of  the
same category cannot be discriminated and where such a distinction  is  made
between items  falling  in  the  same  category  it  should  be  done  on  a
reasonable  basis,  in  order  to  save  such  a  classification  being   in
contravention of Article 14 of the Constitution of India.”


It was contended by the learned  senior  counsel  for  the  appellants  that
purpose was to give  exemption  only  to  those  who  paid  custom  duty  at
Rs.1,400/- per LDT and since the duty paid  by  the  respondent  herein  was
lesser in amount, respondent could not ask for exemption.  That may  be  so.
In such a case, the only option to  bring  parity  was  to  demand  duty  on
differential amount, which was even  contended  by  the  respondent  herein.
That  provision  should  have  been  incorporated  to  save   the   impugned
Notification from the vice of arbitrariness.   In  fact,  that  would  bring
both the sub-categories completely at par.  Thus, while upholding  the  view
taken by the High Court, we modify the same only  to  the  extent  that  the
respondent herein shall also be entitled to the  benefit  of  the  exemption
Notification subject to the condition that the  duty  already  paid  by  the
respondent herein on LDT, would be taken into account and only  the  balance
out of it would be subject to excise duty.


The appeal is disposed of in the aforesaid terms without  any  order  as  to
cost.

                             .............................................J.
                                                                (A.K. SIKRI)


                             .............................................J.
                                                               (N.V. RAMANA)

NEW DELHI
JULY 29, 2015.

-----------------------
[1]   (1995) 1 SCC 274
[2]   (1997) 3 SCC 398
[3]   (1997) 7 SCC 300
[4]   (2007) 6 SCC 624
[5]   (2001) 7 SCC 545
[6]   (1989) 1 Supp. SCC 116
[7]   (1996) 1 SCC 345
[8]   (2007) 10 SCC 342

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