Prompt:
vil Appeal No. 6202 (NT) of 1983.
From the Judgment and Order dated 3.2.
1981 of the Punjab and Haryana High Court in L.P.A. No. 128of 1981.
Raja Ram Aggarwal, Arvind Minocha, H.K. Singh, S.K. Bagga, S.C. Patel and S.K. Gambhir for the Appellants.
Kapil Sibal, Additional Solicitor General, S.P. Goel, A. Subba Rao, C.V.S. Rao, Mahabir Singh, Bishambher Lal and K.C. Dua for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
1.
All these appeals and writ petitions raise a common question regarding the interpretation of s 9(1) of the Haryana Sales Tax Act, 1973 (hereinafter re ferred to as 'the Act ').
Counsel state that the facts in all these appeals are identical and that the only facts neces sary (or, atleast, on record before us), on the basis of which the issue us is to be decided, are these: Each of the appellants/ petitioners (hereinafter referred to compendi ously as 'assessees '), is a registered dealer in the State of Haryana.
He purchased certain raw materials in the State without paying tax thereon, in view of the provision con tained in section 24 of the Act.
He then manufactured certain goods in the State with the aid of said raw materials.
He then sold the manufactured goods to dealers who, in turn, exported those goods out of India.
On these facts, it is claimed, the assessee is not liable to pay the purchase tax on the raw materials imposed under section 9(1) of the Act.
This claim has been rejected by the taxing authorities and the High Court and hence these appeals.
The writ petitions have been filed directly in this Court in view of a learned single Judge of the High Court having decided the issue against the assessees as early as 25.11.
1980 in C.W.P. 1227/80, which was also affirmed by a Division Bench later 2.
The Act is a much amended one and Some of its provi sions have been recently amended with retrospective effect from 27th May, 1971 a point of time when actually a prede cessor Act (the Punjab General Sales Tax Act, 1948) had been in force.
The provisions of the statute, relevant for our purpose, and their relevant amendments may be noticed first: 347 1.
Section 2(e) (a) Originally section 2(e) defined 'export ' to mean "the taking out of goods from the State to any place outside it otherwise than by way of sale in the course of inter State trade or commerce.
" (b) Act 44 of 1976, added, at the end of the above definition, the following words w.e.f.
1.4.1976: "or in the course of export out of the territory of India.
Section 2(p) (a) section 2(p) defined the expression 'turnover ' as includ ing "the aggregate of the amounts of the sales and purchases . . made by any dealer" in any capacity during a given period.
Explanation 2 to the second defini tion provided: "(2) The proceeds of the sale of any goods on the purchase of which tax is leviable under this Act or the purchase value of any goods on the sales of which tax is leviable under this Act, shall not be included in the turnover, but the purchase value of the goods liable to tax under section 9 shall be included.
" (b) Act 13 of 1989 amended the Explanation by inserting, in it, after the words "section 9", the words "or section 24".
(c) Act 1 of 1990 has amended the above Explanation retrospectively to say that the words "but the purchase value of the goods liable to tax under section 9 or section 24 shall be included" shall be omitted and shall be deemed always to have been omitted with effect from 27.5.
So we have to proceed on the basis that the underlined words never were there in el.
(p) of section 2.
The 1990 Act also inserted an Explanation 6 to the clause w.e.f. 31.3.
1983 which reads: "(6) The purchase of barley or of goods used in the manufac ture of guar gum, scientific goods, utensils and metal handicrafts shall not form part of the turnover of a dealer for the period he is entitled to purchase the goods on the authority of his certificate of registration without payment of sales tax under section 24, provided these are used exclusively for the specified purposes.
" 348 111.
Section 6 Section 6, the charging section, read as under: "6.
Incidence of taxation (1) Subject to other provisions of this Act, every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeded the taxable quantum, Defined in section 7, shall be liable to pay tax under this Act on all sales and purchases effected after the coming into force of this Act.
Provided that this section shall not apply to a dealer who deals exclusively in goods specified in Schedule B. Goods on which no tax is leviable: section 6 read with section 15.
(2) Every dealer to whom sub section (1) does not apply shall, subject to other provisions of this Act, be liable to pay tax under this Act on the expiry of thirty days after the date on which his gross turnover during any year first exceeds the taxable quantum; Provided that this sub section shall not apply to a dealer who deals exclusively in goods specified in Schedule B. Provided further that . .
XXX XXX XXX Explanation For the purposes of sub section (1) and (2) "purchased" shall mean the purchase of declared (As defined in section 2(c) of the ) goods speci fied in Schedule C and goods falling under section 9.
(b) section 6 was amended by Act I of 1990 to read as follows with retrospective effect from 27.5.
1971: "section 6 Incidence of taxation (1) Every dealer whose gross turnover during the year immediately preceding the coming into force of the provisions of this section exceeded the taxable quantum shall be liable to pay tax on all sales and purchases effected after the coming into force of the provi sions of this section.
349 Provided that this sub section shall not apply to a dealer who deals exclusively in goods specified in Schedule B. (2) Every dealer to whom sub section (1) does not apply shall be liable to pay tax on all sales and purchases effected on the expiry of thirty days after the date on which his gross turnover during any year first exceeds the taxable quantum.
Provided that this sub section shall not apply to a dealer who deals exclusively in goods specified in Schedule B: Provided further that . .
XXX XXX XXX The earlier Explanation, however, is omitted with the same retrospective effect.
Section 9 (a) section 9(1) has undergone several amendments: by Act 44 of of of of of 1986 and Act 1 of of 1990 has also an impact, as we shall indicate later.
The section originally read thus: "section 9 Liability to pay purchase tax Where a dealer pur chases goods other than those specified in the Schedule B from any source in the State and (a) uses them in the State in the manufacture of (i) goods specified in Schedule B; or (ii) any other goods and disposes of the manufac tured goods in any manner otherwise than by way of sale whether within the State or in the course of inter State trade or commerce or in the course of export out of the territory of India; 350 (b) exports them in the circumstances in which no tax is payable under any other provision of this Act, there shall be levied, subject to the provisions of section 17, a tax on the purchase of such goods at such rate as may be notified under section 15.
" (b) Act 44 of 1976 made two amendments to this sub section.
The first amendment was to insert, after the open ing words, "where a dealer", the words "liable to pay tax under this Act".
The second amendment, which is crucial for the purposes of this case, is the addition at the end of sub clause (ii) of clause (a) above, the words: "within the meaning of sub section (1) of section 5 of the .
" These amendments were effective from 1.4.1976.
(c) Act 11 of 1979 redrafted the above provision, ex cluded milk from clause (b) and added clause (c).
After this amendment, effective from 9.4.1979, the provision read thus: "9(1) Where a dealer liable to pay tax under this Act, (a) purchases goods, other than those specified in Schedule B, from any source in the State and uses them in the State in the manufacture of goods specified in Schedule B; or (b) purchases goods, other than those specified in Schedule B except milk, from any source in the State and uses them in the State in the manufacture of any other goods and disposes of the manufactured goods in any manner otherwise than by way of sale whether within the State or in the course of inter State trade or commerce or in the course of export out of the territory of India within the meaning of sub section (1) of section 5 of the ; or (c) purchases goods, other than those specified in Schedule B, from any source in the State and exports them, in the circumstances in which no tax is payable under any 351 other provision of this Act, there shall be levied, subject to the provisions of section 17, a tax on the purchase of such goods at such rate as may be notified under section 15." (d) A doubt had arisen whether the words "disposes of" used in clause (a)(ii) later, clause (b) above was compre hensive enough to include cases of despatches by a dealer of the manufactured goods otherwise than by way of sale as, for example, by way of stock transfer.
The State Government had issued a notification dated 19.7.74 (even before the 1976 amendment) clarifying the position with an answer to the question in the affirmative but this notification as well as the interpretation favoured by it were quashed by a decision of the High Court reported as Goodyear India Ltd. vs State, [1982] 53 STC 163.
This led to the amendment of section 9(1) by Act 3 of 1983.
This amendment substituted a new clause (b) for the earlier one w.e.f.
27.5.71,inserted a new clause (bb) w.e.f.
9.4.79 and added a proviso.
Actually clauses (b) and (bb) are identical, except that the latter excludes milk from Its purview w.e.f. 9.4.79.
However, to avoid confusion both the clauses may be set out here: (b) purchases goods, other than those specified in Schedule B, from any source in the State and uses them in the State in the manufacture of any other goods and either disposes of the manufactured goods in any manner otherwise than by way of sale in the State or despatches the manufactured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of subsection (1) of section 5 of the Central Sales Tax Act, 1956;or; (bb) purchases goods, other than those specified in Schedule B except milk, from any source in the State and uses them in the State in the manufacture of any other goods and either disposes of the manufactured goods in any manner otherwise than by way of sale in the State or despatches the manufac tured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of sub section (1) of section 5 of the ; or".
352 The proviso added was in the following terms: "Provided that no tax shall be leviable under this section on scientific goods and guar gum, manufactured in the State and sold by him in the course of export outside the territo ry of India within the meaning of sub section (3) of section 5 of the ." (e) Act 11 of 1984 effected no material change.
The exclusion of milk was decided to be dropped and so all that this amendment did was to roll both clauses (b) and (bb) into one clause, reading thus: "4.
Amendment of section 9 of Haryana Act 20 of 197.3 For clauses (b) and (bb) of sub section (1) of section 9 of the principal Act, the following clause shall be substituted, namely: "(b) purchases goods, other than those specified in Schedule B. from any source in the State and uses them in the State in the manufacture of any other goods and either disposes of the manufactured goods in any manner otherwise than by way of sale in the State or dispatches the manufactured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of subsection (1) of section 5 of the Central Sales Tax Act, 1956;or.
(f) Amendment Act 8 of 1986 substituted, in the proviso to section 9( 1 ), the words "scientific goods, guar gum, uten sils and handicrafts" in place of "scientific goods and guar gum" w.e.f. 26.2.86.
The amendment to section 9(1) by Act 16 of 1986 is not relevant for our purposes and we pass on to the two relevant amendments effected by Act 1 of 1988.
The first was to change the marginal heading of the section to read thus: "9(1) Liability to pay tax on purchase value of goods".
The second was to omit the words "sub section (1) of" at the end of clause (b).
The relevant part of clause (b), as thus amended, will, therefore, read: "despatches the manufactured goods to a place outside the State in any manner otherwise than by way of sale . . in 353 the course of export outside the territory of India within the meaning of section 5 of the ;" These amendments became effective from 31.12.
V. Section 24 section 24 is the next section relevant for our purposes.
After its amendment by Act 44 of 1976, it read thus, w.e.f. 28.11.76: "24.
Rights of registered dealer Every dealer registered under this Act shall be entitled to purchase, without pay ment of sales tax, the following goods within the State, on the authority of his certificate of registration by giving to the dealer, from whom the goods are purchased, a declara tion, duly filled and signed by him, containing such partic ulars, on such form, obtained from such authority, as may be prescribed, and in case such form is not available with such authority, in such manner as may be prescribed, (a) any goods, other than those leviable to tax at first stage of sale under section 17 or section 13, for the purpose of (i) resale in the State; or (ii) sale in the course of inter State trade or commerce; (b) containers and packing materials and other goods (excluding those liable to tax at the first stage of sale under section 17 or section 18), specified in his certificate of registration for use by him in the manufac ture, in the State, of any goods other than those specified in Schedule B, for the purpose of (i) sale in the State; or (ii) sale in the course of inter State trade or commerce; or (iii) sale in the course of export out of the territory of 354 India within the meaning of sub section (1) of section 5 of the .
" (b) Act 3 of 1983 renumbered the above as section 24(1) and added, with effect from 31.3.83, a proviso each, to clauses (a) and (b).
These provisions read thus.
The proviso to clause (a) was: "Provided that a dealer registered under this Act, shall also be entitled to purchase barley, without payment of sales tax on the authority of his certificate of registra tion, on furnishing to the selling registered dealer, a declaration referred to above, for sale by him in the course of export outside the territory of India within the meaning of section 5 of the ." and that to clause (b) read: "Provided that a dealer registered under this Act, shall also be entitled to purchase, without payment of sales tax, on the authority of his certificate of registration, goods mentioned in clause (b) above, on furnishing to the selling registered dealer a declaration referred to above, for use by him in the manufacture, in the State, of scientific goods and guar gum for the purpose of sale by him in the course of export outside the territory of India within the meaning of sub section (3) of section 5 of the ." It also inserted, with retrospective effect from 1.4.76, the following sub section. "(2) Notwithstanding anything contained in form S.T. 15 or the certificate of registration issued under this Act or the Rules made thereunder, no dealer shall be entitled to claim the right envisaged in sub section (1) so renumbered, for the period from the first day of April, 1976, to the third day of September, 1979 in contravention of the provisions of sub section (1) so renumbered." The Act also contained a section (section 8) validating the notification issued under section 9 read with section 15 and also validating all levy, assessment and collection of taxes under section 9 notwithstanding any judgment, decree or order of any court or other authority.
355 (c) Act 11 of 1984 changed the marginal heading of the section as "Rights and liabilities of registered dealers".
It added a clause (c) to sub section (1) relating to use of the goods in the execution of works contract in the State, with which we are not concerned.
However, it added a new sub section (3) with retrospective effect from 27.5.
1971, to the following effect: "(3) Notwithstanding any other provisions of this Act or any judgment decree or order of any court or other authority to the contrary, if a dealer who purchases goods, without payment of tax, under sub section (1) and fails to use the goods so purchased for the purposes specified therein, he shall be liable to pay tax, on the purchase value of such goods, at the rates notified under section 15, without prejudice to the provisions of section 50; Provided that the tax shall not be levied where tax is payable on such goods under any other provision of this Act.
" (d) An amendment of 1986 expanded the proviso to section 24(I)(b) by adding "utensils and metal handicrafts" to "scientific goods and guar gum", as in section 9(1) proviso.
(e) Act 1 of 1988, affecting from 31.12.1987, omitted the words "sub section (1) of" in section 24(I)(b)(ii).
It also omitted the proviso to the said clause.
Section 27 Section 27, which defines "taxable turnover" is not quite relevant for our purposes.
We should only like to mention that the provisoes to section 27(a)(iV), section 27(b)(iii) and section 27(c)(ii) inserted by Act 44 of 1976 w.e.f. 1.4.76 all make specific reference to sales "in the course of export out of the territory of India within the meaning of sub section (1) of section 5 of the ".
The provisoes to section 27(a)(iv), in particular, make a clear contrast between sales falling under sub section (3) and those failing under sub section (1) of section 5 of the C.S.T. Act.
Validation provision Act 1 of 1990 effected no amendments to section 24 or 27.
But section 14 of 356 this Act (which is a validation section on the same lines as those contained in the earlier amendment Acts) has been referred to in the course of the arguments before us and can be usefully extracted.
It reads: "14.
Notwithstanding any judgment, decree or order of any court or tribunal or other authority to the contrary, any levy, assessment, re assessment or collection of any amount by way of tax made or purporting to have been made and any action taken or things done or purporting to have been taken or done before the commencement of the Haryana General Sales Tax (Amendment and Validation) Act, 1990, in relation to such levy, assessment, re assessment or collection made under the provisions of section 9 or subsection (3) of secton 24 of this Act shall be deemed to be as valid and effective as if such levy, assessment, re assessment or collection had been made or action taken or things done under the provisions of clause (p) of section 2, section 6, section 15 A, section 17, section 27 and Schedule D appended to this Act and as amended by the provisions of the Haryana General Sales Tax (Amendment and Validation) Act, 1990 and shall not be called in question in any court or tribunal or other authority and accordingly (i) all acts, proceedings or things done or action taken by the State Government or by any officer of the State Government or by any authority, in connection with the levy, assessment, re assessment or collection of such a tax shall, for all purposes be deemed to be, and to have always been done or taken in accordance with law; (ii) no suit or other proceedings shall be main tained or continued in any court or before any authority for the refund of any such tax so collected; and (iii) no court or authority shall enforce a decree or order directing the refund of any such tax so collected.
These, then, are the relevant provisions of the Act.
Before turning to the question posed for our considera tion, it is necessary to refer to section 5(1) of the .
Thus sub section read as follows: 357 "5.
When is a sale or purchase of goods said to take place in the course of import or export (1) A sale or purchase of goods shah be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India.
" This sub section came up for the consideration of this Court in Mohammed Sirajuddin vs State, [1975] Supp. 1 S.C.R. 169.
In that case the appellant 's goods were exported out of India.
The course of the transaction was that the appellant sold goods to the State Trading Corporation (S.T.C.) but, to the knowledge of both these parties, the goods were to be exported to fulfill contracts entered into by the S.T.C. with foreign buyers, the terms of such contracts between the foreign buyers and the S.T.C. being referred to in, and part of, the appellant 's contracts with the S.T.C.
The apppellant claimed its sales to be "sales in the course of export" and hence exempt under section 5 of the C.S.T. Act.
This Court, Khanna, J. dissenting, held that the sales of the appellant were not exempt u/s 5(1).
The appellant had agreed to sell his goods only to the S.T.C. and there was no provity of contract between him and the foreign buyer.
The court held that the movement of goods outside India was occasioned by the contract between the S.T.C. and the foreign buyer and not by that between the appellant and the S.T.C.
The deci sion caused several practical difficulties and called for an amendment of the C.S.T. Act.
The object and reasons of the C.S.T. (Amendment) Act (Act 103 of 1976), may be usefully extracted.
It said: "According to section 5(1) of the , a sale or purchase of goods can qualify as a sale in the course of export of the goods out of the territory of India only if the sale or purchase has occasioned such export or is by a transfer of documents of title to the goods after gods have crossed the customs frontiers of India.
The Su preme Court had held (vide: Mohd. Serajuddin vs State of Orissa, 36 S.T.C. 136 that the sale by an Indian exporter from India to a foreign importer alone qualifies 'as a sale which has occasioned the export of the goods.
According to the Export Control Orders, exports of certain goods can be made only by specified agencies such as the State Trading Corporation.
In other cases also, manufacturers of goods, particularly in the small scale and medium sectors, have to 358 depend on some experienced export house for exporting the goods because special expertise is needed for carrying on export trade.
A sale of goods made to an export canalising agency such as the State Trading Corporation or to an export house to enable such agency or export house to export those goods in compliance with an existing contract or order is inextricably connected with the export of the goods.
Fur ther, if such sales do not qualify as sales in the course of export, they would be liable to State sales tax and there would be a corresponding increase in the price of the goods.
This would make our exports incompetitive in the fiercely competitive markets.
It is, therefore, proposed to amend, with effect from the beginning of the current financial year, section 5 of the to provide that the last sale or purchase of any goods preceding the sale or purchase occasioning export of those goods out of the terri tory of India shall also be deemed to be in the course of such export if such last sale or purchase took place after and was for the purpose of complying with the agreement or order for, or in relation to, such export." section 5(3), inserted by the above Amendment Act w.e.f. 1.4.1976, reads thus: "(3) Notwithstanding anything contained in sub section (1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase ' took place after, and was for the purpose of complying with, the ' agreement or order for or in relation to such export." Now, coming to the facts of the present case, the asses sees purchased raw materials inside the State of Haryana but paid no tax thereon, as they were registered dealers and furnished the declaration forms prescribed under section 24.
Their sales of the manufactured goods are to persons who have exported the goods outside India and so, they claim, they are not liable to pay the tax sought to be imposed on them under section 9(1).
The department, however, has denied the relief on the short ground that the sales effected by the appellants are not sales in the course of export outside India within the meaning of section 5(I) of the C.S.T. Act.
They are only "penultimate" sales; they may be deemd to be 'e xport sales ' because of the fiction created under section 5(3) of the 359 C.S.T. Act but that is not enough to escape from the Clutch es of the charge in section 9(1).
Sri Rajaram Agarwal, learned counsel for the assessees, contended that the effect of section 5(3) of the C.S.T. Act is to expand the scope of section 5(1) and include within the concept of sales in the course of export outside India also the 'penultimate ' sales dealt with in Mohd. Sirafuddin 's case (supra), A reference to, and the meaning of, section 5(1) cannot be understood without a reference to section 5(3).
As a result of section 5(3), such penultimate sales become export sales falling beyond the purview and competence of State legislatures.
The provisions in section 9(1) of the Act need to be interpreted harmoniously and consistently with the con stitutional scheme.
section 9(1) is a charging section.
Purchases of raw materials in the State used in the manufacture of goods inside the State attract the tax under section 9(1) unless those manufactured goods are dealt with in one of three ways: (1) disposed of by way of sale inside the State; (2) despatched to a place outside the State but by way of a sale in the course of inter State trade or commerce; or (3) despatched to a place outside the State but by way of sale in the course of export outside the territory of India.
He submitted that the transactions in the present case fail under category (3) above.
In the alternative, he submitted that, clearly, as the assessees had sold goods to other parties in India, those sales must be either local sales falling under category (1) or inter State sales failing under category (2).
In any view of the matter, therefore, the assessee 's purchases of raw materials would not attract tax under section 9(1).
On the other hand, Sri Gupta, learned counsel for the State.
submitted that there were no facts on record to substantiate the claim on behalf of the assessee that the sales in question fulfilled the conditions set out in section 5(3) of the C.S.T. Act, as claimed.
He submitted that even if the claim were to be accepted, the assessees would be in no better position.
He fully supported the reasoning of the High Court and urged that full effect should be given to the words "within the meaning of sub section (I) of section 5" which found a place in section 9(1)(b) till they were dropped by Act 1 of 1988.
If due regard be given to these words, he pointed out, the assessees would be entitled to an exemption from the impugned purchase tax only if their sales 360 were export sales within the meaning of section 5(1) of the C.S.T. Act which they, admittedly were not.
He submitted that the argument that, to levy the tax imposed by section 9(1) in cases covered by section 5(3) but not section 5(1) of the C.S.T. Act would violate Article 286 of the Constitution.
was misplaced and overlooks the vital circumstances that what section 9(1)(b) taxes are the purchases of raw materials and not the manufactured goods that were eventually exported.
Alterna tively, he submits, section 9(1)(b) has been declared unconstitu tional by this Court in the Goodyear case ; and, therefore,, the assessees can seek no implied exemption from its language.
If section 9 is left out, he says, the lan guage of section 6 (as amended) which brings to charge all pur chases and sales in the State would be attracted and so the impugned taxation of the purchases would be in order.
For these reasons, he submits that the writ petitions were rightly rejected by the.
High Court and that the appeals as well as writ petitions before us deserve to be dismissed.
It will be convenient first to dispose of the contention dealt with by the High Court.
For the purposes of this argument we shall assume that the sales made by the asses sees were 'penultimate sales ' which would fall within the purview of section 5(3) of the C.S.T. Act.
The argument on behalf of the Revenue, which has found favour with the High Court is that section 9(1) exempts only sales made in the course of export within the meaning of section 5(1) of the C.S.T. Act but not those under section 5(3) of the said Act.
After careful consideration we think that this argument was rightly accepted by the High Court.
In the first place there is no dispute before us that section 5(3) covers a category of cases which would not otherwise have come within the purview of section 5(1), as explained in Mohd. Sirajuddin 's case.
The language of section 9(1)(a)(ii) later 9(1)(b) using the words "within the meaning of sub section (1) of section 5 of the " have to be given full meaning; in other words, the exemption under section 9(1) has to be restricted only to export sales falling within the scope of section 5(1).
It seems clear, from the circumstances referred to below, that the legisla ture deliberately used these words and intended to give a restricted operation to section 9(1)(a)(ii)(b).
These cir cumstances are: (1) Section 9(1)(a)(ii), as originally framed, merely uses the words "in the course of export outside the territo ry of India".
Clause 9(1)(b) referred to cases where raw materials were purchased and exported and the word 'export ' was defined in section 2(c) as meaning "the taking out of the goods from the 361 State to any place outside it otherwise than by way of sale in the course of inter State trade or commerce." Act 44 of 1976 amended the definition of 'export ' in section 2(c) by adding the wide words "or in the course of export out of the territory 01 ' India" w.e.f. 1.4.
But the same Act narrowed down the scope of clause (a)(ii) by adding the restrictive words at the end of the clause.
(2) If a reference is made to section 24, one finds that section 24(1)(iii) refers again to sub section (1) of section 5 of the only.
However, the language of the two provisoes simultaneously introduced in section 24(1)(a) and (b) by Act 3 of 1983 makes interesting reading.
The proviso to clause (a) refers only to "sale by him in the course of export outside the territory of India within the meaning of section 5 of the ", whereas the proviso to clause (b) refers to "sale by him in the course of export outside the territory of India within the meaning of sub section 3 of section 5 of the ".
Thus the statute, within the same provision, has made a distinction between a sale in the course of export within the meaning of section 5 and such a sale within the ' meaning of section 5(3).
(3) When we turn to section 27 next, we find two provisoes introduced in section 27(1)(iv)(a) by Act 44 of 1976, the same amending Act that introduced the extra words at the end of section 9(1)(a)(ii).
These provisoes make a marked contrast between sates failing under sub sections (1) and those falling under subsection (3) of section 5 of the C.S.T. Act.
(4) As will be seen from the extract of the legisla tive amendments set out earlier the legislature has subse quently deleted the reference to sub section 3 of section 5 in section 9(1)(b).
However, this amendment, which has been made both in section 9 and in section 24 by Act 1 of 1988 has not been given any retrospective effect.
Considering that the legislation is replete with instances of retrospec tive effect (in some cases even to as early as a date as 7.9.1955), the failure or omission to give any retrospective effect to the amendment to section 9 in this regard is an eloquent pointer to the intention of the legislature.
In view of the circumstances outlined above, we are of the opinion that the High Court was right in concluding that the assessee 362 was not entitled to the exemption under section 9because the sales made by him were not sates in the course of export outside the territory of India within the meaning of section 5(1) of the .
Shri Rajaram Agarwal, learned counsel for the assessees raised a new contention before us, which we have already referred to as an alternative contention.
This contention which really seems to be unanswerable appears to have been missed at the stage of the High Court but this contention is purely one of law and merits consideration.
The point made by him was this.
There is no dispute that the assessees have transferred the manufactured goods by way of sale and that these goods have been despatched to various ports of India.
The exact terms of despatch are not clear and there are no facts on record which will help us to understand the course of transactions in the several cases before us.
But Shri Agarwal submitted that the sales made by the assessees can only fall within one of three categories.
They are either local sales or inter State sales or export sales.
Each of the assessee have sold its goods to another dealer, If that dealer is also a resident of Haryana and has taken delivery of the goods in Haryana and exported them thereafter, the assessees ' sales would be local sales.
If the purchaser dealer of the manufactured goods is in some other State and the goods have been moved out of Haryana in pursuance of that sale, they would be inter State sales.
The goods which have been sold by the assessee must have been delivered to the dealer in pursuance of the sale either within the State or outside the State in India.
In either event, it would be a sale covered by the exceptions in section 9(1).
It would be a local sale or inter State sale.
The only third possi bility is that assessee sold the goods to a dealer outside India and exported the goods in pursuance of that sale in which event it would be a sale within the meaning of section 5(1) of the .
We think Shri Agarwal is right in saying that any sale effected by the assessees in the circumstances, which have been set out by us earlier, must fall in one of three cate gories.
We are unable to conceive of a fourth category of sale, which could be neither a local sale nor an inter State sale nor an export sale.
Shri Gupta, on behalf of the State, contended that the goods might have been directly moved by the assessee to a port for shipment abroad in pursuance of an export contract entered into by the dealer who purchased from the assessee.
Even in such a case if the transport of goods from the assessee 's place of business to the port is in pursuance of the terms of the sale, the movement of the goods would be occasioned by the sale made by the assessee and would be an inter State sale.
If, on the other hand, the goods were sent 363 to the port by the assessee subsequent to and independent of the sale made by him, then, for the purpose of that trans port, the assessee.
would only be an agent of the purchaser and the movement of the goods in pursuance of the contract of sale entered into by the purchaser and would be one in the course of export within the meaning of section 5(1) of the C.S.T. Act.
As pointed out by Sri Agarwal, even in Mohd. Sirajuddin 's case (supra), although the exemption claimed for the sales as export sales was denied, the conclusion of the High Court that the sales to S.T.C. were inter State sales chargeable under section 5(1) of the C.S.T. Act was upheld.
We are, therefore, of the opinion that this alternative contention urged by the learned counsel for the assessee has to be accepted and it has to be held that, since the sales effected by the assessees fall within one of the three exempted categories set out in section 9(1)(b), there can be no levy of purchase tax under section 9(1) of the Act.
Faced with this situation, Shri Gupta, for the State, contended that this argument will not avail the assessees as, according to him, section 9(1)(b) of the Act has been de clared unconstitutional by this Court and is, therefore, non est.
It is somewhat curious that such contention should come from the department which has charged the assessees on the basis of section 9(1)(b).
Nevertheless, we proceed to consider this contention, as Sri Gupta says he can support the as sessments, alternatively, under section 6 of the Act, without any aid from section 9 at all.
This contention, it seems to us, proceeds on a misconception of the issue before, and the ratio of the decision of this Court in the Goodyear case ; That was a case in which certain dealers, having purchased raw materials and manufactured goods inside the State despatched those goods outside the State otherwise than by way of sale.
The State levied a purchase tax on the raw materials u/s 9(1).
Thereupon the assessee contended that the levy of tax in the circumstances was in truth and substance the levy of a tax on the manufactured goods on the event of their consignment outside the State otherwise then by way of sale and that the State legislature was not compe tent to levy such a tax.
This contention was accepted by this Court.
What was declared unconstitutional by this Court was, therefore, only the levy of a tax where raw materials are purchased and used inside the State for the manufacture of finished goods which are then simply and without any sale despatched rather, consigned outside the State.
There is, however, nothing unconstitutional about the two other consequences that flow on the language of the clause: one express and the other implied; one in favour of the Revenue and the other in favour of the assessee viz. 364 (1) that there will be a tax on the purchase of the raw materials if the manufactured goods are disposed of in the State itself otherwise than by way of sale; and (2) that there will be no tax on the purchase of the raw materials if the manufactured goods are despatched from the State consequent on a (i) local sale; (ii) inter State sale; or (iii) a sale in the course of export.
It seems that these two aspects of section 9(1)(b) survive even after the judgment of this Court in the Goodyear case ; Shri Gupta, however, drew our attention to certain sentences in the headnote as well as the body of the above decision where certain wider expressions have been used, such as :"s. 9(1)(b) was ultra vires" "section 9(1) and 24(3) are constitutionally invalid" "section 9(1)(c) is ultra vires" and" . . the latter part of section 9(1)(b) is ultra vires and void".
As pointed out above, section 9(1) is both a charging and exempting section.
Even after the decision the charge under a part of clause (b) still survives and so also the exemption provided in the latter part of clause (b).
But let us examine what the position would be if we hold, as con tended by Shri Gupta, that the effect of the decision is that the words "or despatches the manufactured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of sub section (1) of section 5 of the Central Sales tax Act, 1956" in section 9(1)(b) should be deemed to have been deleted from the statute.
Shri Gupta contends that, if section 9(1) is left out of account for this reason, the pur chases of raw materials by the assessee would be liable to tax under section 6 of the Act.
This argument will now be consid ered.
The contention of Shri Gupta on this aspect proceeds thus: section 6, which is the charging section, both originally and after its retrospective amendment in 1990, imposes a tax on all sales and purchases effected by a dealer.
In the original section, there was an Explanation which restricted the meaning of purchases for the purposes of the section.
It provided that only purchases of declared goods, goods speci fied in 365 Schedule C and goods falling under section 9 would be part of the 'turnover '.
In other words purchases which did not fall under section 9 i.e. which could not be taxed under section 9, could not be taxed then under section 6 either.
But the 1990 amendment has omitted this Explanation retrospectively.
The result is that all purchases are now taxable in the State.
This contention is an interesting one but it overlooks the effect of section 2(p) read with section 15 of the Act.
Though section 6, as amended, purports to make dealers liable to pay tax on their sales as well as purchases, the actual charge of tax, under section 15, is only imposed on the sales and purchases that form part of his taxable turnover.
To ascertain what this one has to turn to section 2(p) of the Act.
This definition includes, within the definition of 'turnover ' the purchase value of goods liable to tax under section 9 but, the goods presently in question are not laible to tax under section 9, not only as contended for the assessees and held by us above but also on the hypothesis as to the invalidity of section 9(1)(b) on which the present argument on behalf of the Revenue pro ceeds.
The, definition also excludes from its purview "the sale proceeds of goods on which purchase tax is leviable under this Act" and "the purchase value of any goods on the sales of which tax is leviable under this Act".
There can be no dispute that a tax is leviable under the Act on the goods in question when they are sold by a dealer and, indeed, the assessees would have had to pay tax on the sales made to the purchases effected by them but for a claim for exemption under section 24.
The definition of 'turnover ' clearly postulates that goods are either to be taxed at the point of purchase or sale and the same transaction cannot be taxed as a sale in the hands of the dealer who sells to the assessees and as a purchase in the hands of the assessees.
The only exception was the limited class of goods covered by section 9 but even this exception has been left out with complete retro spective effect.
We do not, therefore, think that Sri Gupta is right in arguing that the purchase tax on the raw materi als can be upheld under section 6 itself even if the charge under section 9 fails.
Explanation 6, inserted in section 2(p) read, with the provisoes inserted in section 24(1) w.e.f.
31.3.1983 and their amendment in 1986 have also a bearing in the cases of raw materials purchased for manufacture of guar gum and utensils where the purchase is exempt even if purchased by a registered dealer for the purpose of export within the meaning of section 5(3) of the C.S.T. Act, 1956 and some of the assessees before us are such manufacturers out we leave these amendments out of account as they are relevant only for purposes of later assessment years.
The raw materials purchased by the assessees are goods on the sales of which tax is leviable under the Act though the assessees are 366 exempt from payment of such tax by reason of section 24(1).
The value of the purchases cannot, therefore, be included Within the definition of "turnover" and, consequently, section 6 will not come to the aid of the Revenue to support the levy of the impugned sales.
We may also make a reference to sub section (3) of s, 24, inserted with retrospective effect from 27.5.1971, which taxes the purchase of raw materials, when the dealer who purchases them had claimed exemption under section 24(1) but is found not to have used the goods for the purposes speci fied therein i.e. for the manufacture of goods for the purpose of (a) local sale; (b) inter State sale; or (c) sale in the course of export outside the territory of India within the meaning of sub section (1) of section 5 of the C.S.T. Act.
This provision will not help the Revenue for two reasons: (i) As held earlier, while discussing the alternative con tention of Shri Agarwal,sales in the course of export within the meaning of section 5(1) of the C.S.T. Act, 1956.
It may be pointed out that, after Act I of 1988, this provision does not tax purchases even in cases where the manufactured goods are disposed of only by way of 'penultimate sales falling under section 5(3) but not under section 5(1) of the C.S.T. Act, 1956, but this amendment came later and will have to be left out of account for the purpose of these cases; (ii) This provi sion has been held to be ultra vires in the Goodyear case (supra).
We have, therefore, reached the conclusion that the purchases of raw materials by the assessees are not charge able to tax either u/s 9(1) or section 6 or section 24(3).
The appeals and petitions are, therefore, allowed.
The relevant assess ments to tax will be computed/modified accordingly.
We, however, make no order regarding costs.
R.S.S. Appeals & Petitions allowed.

Response:
Each of the appellants/petitioners is a registered dealer in the State of Haryana.
He purchased certain raw materials in the State without paying purchase tax thereon, in view of the provision contained in section 24 of the Haryana Sales Tax Act, 1973.
He manufactured certain goods in the State with the aid of the said raw materials.
He then sold the manufactured goods to dealers who, in turn, export ed those goods out of India.
On these facts the assessee claimed that he was not liable to pay the purchase tax on the raw materials, imposed under section 9(1) of the Sales Tax Act.
The Department denied the relief on the short ground that the sales effected by the appellants were not sales in the course of export outside India within the meaning of section 5(1) of the .
Ac cording to the Department, they were only "penultimate" sales, which may be deemed to be 'export sales ' because of the fiction created under section 5(3) of the C.S. Act 1956, but that was not enough to escape from the clutches of the charge in section 9(1).
Accordingly, the claim of the asses see was rejected by the taxing authorities.
The High Court also rejected the assessee 's petition.
Before this Court, it was contended on behalf of the assessees that the effect of section 5(3) of the C.S.T. Act was to expand the scope of section 5(1) and include within the concept of sales in the course of export outside India also the 'penultimate ' sales; that a reference to, and the meaning of, section 5(1) could not be understood without a reference to section 5(3); and that as a result of section 5(3), such penultimate sales became export sales falling beyond the purview and competence of State legislature.
It was further submitted that purchases of 344 raw material used in the manufacture of goods inside the State attracted the tax under section 9(1) unless those manufactured goods were dealt with in one of three ways; (1) disposed of by way of sale inside the State; (2) despatched to a place outside the State but by way of a sale in the course of inter State trade or commerce; or (3) despatched to a place outside the State but by way of sale in the course of export outside the territory of India.
In the alternative, it was contended that as the asses see had sold goods to other parties in India, those sales must be either local sales or inter state sales; and that in any view of the matter, it would be a sale covered by the exceptions in section 9(1), and the assessee 's purchases of raw material would not attract tax under section 9(1).
On the other hand, on behalf of the State it was, inter alia contended that there were no facts on record to sub stantiate the claim on behalf of the assessee that the sales in question fulfilled the conditions set out in section 5(3) of the C.S.T. Act.
It was submitted that the assessees would be entitled to an exemption from the impugned purchase tax only if their sales were export Sales within the meaning of section 5(1) of the C.S.T. Act, which they admittedly were not.
Alternatively, it was submitted that section 9(1)(b) had been declared unconstitutional by this Court in the Goodyear case ; and the assessee could seek no implied exemption from its language.
Therefore, if section 9 was left out, the language of section 6 ( as amended) which brought to charge all purchases and sales in the State would be attracted and so the impugned taxation of purchases would be in order.
Allowing the appeals and the petitions, this Court, HELD: (1) The language of section 9(1)(a)(ii) later section 9(1) (b) using the words "within the meaning of sub section (1) of section 5 of the " have to be given full meaning; in other words, the exemption under section 9(1) has to be restricted only to export sales failing within the scope of section 5(1).
[360F G] Mohammed Sirajuddin vs State, [1975] Supp. 1 SCR 169, re ferred to.
(2) The language of the two provisions simultaneously introduced in section 24(1)(a) and (b) makes interesting reading.
The proviso to 345 clause (a) refers only to "sale by him in the course of export outside the territory of India within the meaning of section 5 of the " whereas the proviso to clause (b) refers to "sale by him in the course of export outside the territory of India within the meaning of sub section (3) of section 5 of the ".
Thus, the statute, within the same provision, has made a distinction between a sale in the course of export within the meaning of section 5 and such a sale within the meaning of section 5(3).
[361C D] (3) The High Court was right in concluding that the assessee was not entitled to the exemption under section 9 because the sales made by him were not sales in the course of export outside the territory of India within the meaning of section 5(1) of the .
[362A] (4) What was declared unconstitutional by this Court when it declared section 9(1)(b) of the Act unconstitutional in Goodyear case was only the levy of a tax where raw mate rials were purchased and used inside the State for the manufacture of finished goods which were then simply and without any sale despatched rather, consigned outside the State.
There is, however, nothing unconstitutional about the two other consequences that flow on the language of the clause: one express and the other implied; one in favour of the Revenue and the other in favour of the assessee, viz. (1) that there will be a tax on the purchase of the raw materials if the manufactured goods are disposed of in the State itself otherwise than by way of sale; and (2) that there will be no tax on the purchase of the raw materials if the manufactured goods are despatched from the State conse quent on a (i) local sale; (ii) inter State sale; or (iii) a sale in the course of export.
These two aspects of section 9(1)(b) survive even after the judgment of this Court in the Goodyear case.
[363G H; 364A C] Goodyear, case ; , explained.
(5) Section 9(1) is both a charging and exempting sec tion.
Even after the decision in Goodyear case the charge under a part of clause (b) still survives and so also the exemption provided in the latter part of clause (b).
[364E; C] (6) Since the sales effected by the assessee fail within one of the three exempted categories set out in section 9(1)(b), there can be no levy of purchase tax under section 9(1) of the Sales Tax Act.
[363C] (7) The purchase of raw materials by the assessees are not 346 chargeable to tax either under section 9(1)or section 6 or section 24(3).
[366G]


Prompt:
it Petition No. 459 & 460 of 1988.
(Under Article 32 of the Constitution of India).
Harish N. Salve, S.V. Kamdar and M.N. Shroff for the Petitioners.
P.K. Goswami, Additional Solicitor General, Kailash Vasdev and Ms. A Subhashini for the Respondents.
The Judgement of the Court was delivered by S.C. AGRAWAL, J. These petitions under Article 32 of the Constitution raise a common question as to the validity of sub para (10) of para 218 of the Import & Export Policy for the period April, 1988 to March, 1991.
236 The petitioners in both these writ petitions are partnership firms carrying on business of import of rough diamonds and export of cut and polished diamonds.
The Import & Export Policy for the period April 1978 to March 1979, in para 174, made provision for grant of certain import facilities to Export Houses which were registered in accordance with the provisions of the said Policy.
One of the said facilities was grant of an Additional licence in terms of para 176 of the said Policy for an amount to be calculated at one third the f.o.b. value of the exports of select products made by the Export House in the year 1977 78.
The petitioners submitted application for registration as Export Houses and for grant of Export House Certificate which would have entitled them to the grant of such Additional licence.
The said applications of the petitioners were rejected by the authorities on the view that petitioners had failed to diversify their export of "Other Products" during the year 1977 78.
The said order refusing the Export Certificate was challenged by the petitioners by filing writ petitions under Article 226 of the Constitution before the Bombay High Court.
One of those writ petitions (filed by the petitioners in writ petition No. 460 of 1988 herein) was dismissed by a learned Single Judge of the High Court and the said petitioners filed an appeal before a Division Bench of the High Court.
While the said appeal and the other writ petition (filed by the petitioners viz. writ petition No. 459 of 1988 herein) were pending in the Bombay High Court, this Court decided Civil Appeal No. 1423 of 1984, Union of India vs Rajnikant Brothers, and other connected matters by order dated April 18, 1985, wherein it was observed that there was no requirement of diversification of exports as a condition for the grant of Export House Certificates in theImport Policy for the year 1978 1979, and the authorities were directed to issue necessary Export Certificates for the year 1978 79.
In that order this Court laid down the following conditioned: "Save and except items which are specifically banned under the prevalent import policy at the time of import, the respondents shall be entitled to import all other items whether canalised or otherwise in accordance with the relevant rules".
The writ petition and the appeal were decided by the Bombay High Court in accordance with the aforesaid decision of this Court in the case of Union of India vs Rajnikant Brothers, (supra) and the High Court directed the authorities to grant Export House Certificates to the petitioners under the Import Policy 1978 79 within three months.
While giving the said direction the High Court imposed a condition in 237 the same terms as laid down by this Court in its order dated April 18, 1985, referred to above.
While construing the aforesaid direction contained in its order dated April 18, 1985, in Rajnikant Brothers case (supra) this Court has held that the grantees of the Additional licences were not only prohibited from importing items which were excluded under the Export Policy 1978 79 but also from importing items excluded under the Import Policy prevailing at the time of import and that the word "banned" was intended to take in terms which were banned altogether as well as items which were banned for import by the holder of an Additional licence.
(See: Raj Prakash Chemicals Ltd. & Anr.
vs Union of India & Ors.
; In Union of India vs M/s. Godrej Soaps Pvt. Ltd. & Anr., ; this Court construed the words 'whether canalised or otherwise ' contained in the order dated April 18, 1985, passed in Rajnikant Brothers case (supra) and it was observed that the Court would not know whether in the future certain canalised items could be imported directly by an Export House holding an Additional licence and that the possibility of a policy being framed in the future enabling an Export House holding an Additional licence to directly import items which are `non canalised ' and also item which are `canalised ' could not be ruled out and it was in this light that the Court can be said to have used the words "whether canalised or otherwise" in the order dated April 18, 1985.
The matter was further clarified by this Court in D.Navinchandra & Co. Bombay & Anr.
vs Union of India & Ors.
, ; , wherein this Court has observed: "Analysing the said order, it is apparent, (1) that the importation that was permissible was of goods which were not specifically banned, (2) such banning must be under the prevalent import policy at the time of import, and (3) whether items which were canalised or uncanalised would be imported in accordance with the relevant rules.
These conditions had to be fulfilled.
The Court never did and could not have said that canalised items could be imported in any manner not permitted nor it could have given a go bye to canalisation policy".
(P. 1000) In accordance with the directions given by the Bombay High Court the petitioners in writ petition No. 459 of 1988 herein were granted the Export House Certificate and were also granted an Additional licence dated November 16, 1987.
Similarly, the petitioners in 238 writ petition No. 460 of 1988 herein were granted the Export House Certificate and an Additional licence dated August 31, 1987.
These licences were valid for a period of 12 months and they contained the following endorsement: "This licence in valid for import of items permissible to Export Houses under the Additional Licence category as per para 176 of Import Policy for the period 1978 79 excluding those items which were banner in the policy for the period 1978 79 and those which have been specifically banned in the prevailing Import Policy, 1985 88, pursuant to and subject to the decision of the Supreme Court dated 5.3.1986 in M/s. Raj Prakash Chemicals case civil appeal No. 4978 of 1985; the decision dated 15.5.1986 in the case of M/s. Indo Afghan Chamber of Commerce writ petition No. 199 of 1986, the decision dated 12.9.86 in the case of M/s Godrej Soap Pvt.
Ltd. civil appeal No. 3418/1986; the decision dated 12.9.1986 in the case of M/s Star Diamonds Company of India in civil misc.
petitions No. 20021 22 of 1986 in civil appeal No. 2924/1984; and the decision dated 15.4.1987 in the writ petition No. 1483 of 1987 filed by M/s. D. Naveen Chandra & Company.
xxx" It appears that the petitioners were not able to make imports under the said Additional licences till March 31, 1988.
With effect from April 1, 1988, the Government of India issued the revised Import & Export Policy for the period April, 1988 to March 1991.
The Import & Export Policy 1988 1991 also contains in para 214 and 215 provisions for grant of Additional licences to Export Houses.
In para 215 of the said Policy certain additional facilities have been given in the matter of imports by Export Houses under Additional licences issued to them.
In sub para(4) 215 it has been provided as under: "(4) Additional licences issued to Export Houses will also be valid for the import of the following items upto 10% (upto 15% in the case of Trading Houses) of the value of the licence for: (i) Import of technical designs, drawings and other technical documentation for a value not exceeding Rs. 10 lakhs in the case of Export Houses, and Rs. 25 lakhs in the case of Trading Houses; 239 (ii) import of items appearing in Appendices 3 Part A,3 Part B and 5 Part A subject to the following conditions: (a) that the c.i.f. value of a `single item ' shall not exceed 10% of the flexibility in value terms of Rs.10 lakhs, whichever is less: (b) where the value for import of a `single item ' on the basis of 10% as at (a) above, works out to less than Rupees one lakh, import would be permitted upto a value of Rs. 1 lakh, provided it is within the overall flexibility allowed on the licence: and (iii) import of non OGL capital goods (other than those appearing in Appendices 1 Part A and 8) without indigenous clearance, subject to the same conditions as stipulated at (ii) above, within the overall flexibility allowed to Export/Trading Houses".
Paragraphs 217 and 218 of the said Policy provide for transitional arrangements.
In para 217, it is prescribed that Export Trading House Certificates issued prior to April 1, 1988 would continue to be valid till the date of the expiry and the Export House Trading House can apply for fresh certificates, if they fulfil the eligibility conditions laid down in the policy and in cases where these Certificates are expiring on 31st March, 1988, and the applicants do not fulfil the eligibility conditions for recognition laid down under the revised Policy, recognition would be granted for one year only if they fulfil conditions for renewal of these Certificates as laid down in the Import Policy, 1985 88.
Para 218 of the said Policy reads as under: "218.
(1) Where the applications from Export Houses/Trading Houses for Additional licences have not been disposed of by 31st March of the proceeding licensing year, the rate of entitlement will be the same as permissible during the licensing year to which the application pertains, but the items to be allowed will be as per the Import Policy in force on the date of issue of the licence.
(2) Additional licences already issued prior to 1.4.1988 shall continue to be `non transferable '.
(3) The Additional licences issued prior to 1.4.1988 240 shall cease to be valid for import of items of raw materials, components and spares which appeared in Parts I and II of List 8, Appendix 6 of Import Export Policy, 1985 88, but are not now covered by Part I of List 8, Appendix 6 of this Policy.
These licences will also cease to be valid for the import of items of capital goods which appeared in Appendix 1 Part B of Import Export Policy, 1985 88 but are now covered by Appendix 1 Part B of this Policy.
(4) The Additional licences issued to Trading Houses prior to 1.4.1988 will cease to the valid for the import of items which appeared in Appendices 3 and 5 Part A of the Import Export Policy, 1985 88 but do not appear in Appendices 3 and 5 Part A of this Policy.
(5) Additional licences issued to Export Houses/Trading Houses prior to 1.4.1988 shall cease to be valid for import of items of spares appearing in Appendices 2,3, 5 Part A, 8 and 10 of this Policy.
(6) Notwithstanding the provisions contained in sub paras (3), (4) and (5) above, the restrictions will not apply to the extent the licence holders have already made firm commitments by irrevocable Letters of Credit opened and established through authorised dealers in foreign exchange before 1st April, 1988 but any extension of these letters of credit made after 31st March, 1988 shall be treated as `fresh commitments '.
(7) Additional licences issued to Export Houses/Trading Houses prior to 1.4.1988 will also be valid within their overall value, for import of raw materials, components, consumables and spares appearing in Appendix 6, List 8, Part A of this Policy.
Similarly, such licences will also be valid for import of items of capital goods now covered by Appendix 1, Part B of this Policy within their overall value.
(8) REP licences held by Export Houses/Trading Houses and already endorsed prior to 1.4. 1988 shall cease to be valid for import of any item which could be imported under Open General Licence under the Import Export Policy, 1985 88 but are no longer so in this Policy.
241 (9) Additional licences issued to Export Houses/Trading Houses after 1.4.1988 on exports made during 1986 87 or earlier periods, will be `non transferable '.
These licences will be valid for import of the items appearing in Part I of List 8, Appendix 6 of this Policy.
These licences when issued to Trading Houses, will also be valid for import of the items appearing in Appendices 3 and 5 Part A of this Policy, subject to the conditions laid down in this regard, in the Import Export Policy, 1985 88.
(10) Additional licences issued on Export Houses/Trading Houses prior to 1.4.1988, or issued after 1.4.1988 on exports made during 1986 87 or earlier periods, will not be eligible for the flexibilities in the import of items of raw materials, components and consumables covered by Appendices 3 and 5 Part A and items of non OGL capital goods (other than those covered by Appendices 1 Part A and 8) available under this Policy.
However, these licences will be eligible for the endorsement (if not already endorsed) for the import of non OGL capital goods (other than those covered by Appendices 1 Part A and 8) as allowed against such licences in the Import Policy.
1985 88, subject to the conditions laid down therein provided the items sought to be imported against such licences continued to be non OGL (other than those covered by Appendices 1 Part A and 8) under this Policy".
The grievance of the petitioners is confined to sub para (10) of para 218 which lays down that Additional licences issued to Export Houses/Trading Houses prior to April, 1, 1988, or issued after April 1, 1988, on exports made during 1986 87 or earlier periods, will not be eligible for the flexibilities in the import of items of raw materials, components and consumables covered by Appendices 3 and Part A, and items of non OGL capital goods (other than those covered by Appendices 1 Part A 8) available under the revised Policy.
Appendix 3 Part A relates to raw materials, components, consumables, tools and spares (other than Iron and Steel and Ferro Alloys) and part B of the said Appendix deal with raw materials (Iron and Steel and Ferro Alloys).
Part A of Appendix 5 contains the list of items import of which is canalised through public sector agencies.
As a result of the aforesaid provision contained in sub para (10) of the para 218, the petitioners who were granted Additional licences prior to April 1, 1988, cannot avail the flexibilities in import of items granted under 242 clauses (ii) and (iii) of sub para (4) of para 215 of the Import Policy 1988 1991.
On behalf of the petitioners it has been urged by Shri Salve that sub para (10) of para 218 of the Import & Export Policy 1988 1991 arbitrarily discriminates between Export Houses who were issued Additional licences prior to April, 1 1988, and Export Houses who were issued Additional licences on or after April 1, 1988 in as much as the Export Houses who were issued Additional licences prior to April 1, 1988, on the basis of exports made during 1986 87 or earlier periods have been denied the facilities which have been given to Export Houses who were issued Additional licences on or April 1, 1988, on the basis of exports made during the period subsequent to 1986 87.
It has been submitted that all Export houses who have been granted Additional licences constitute a single class and that there is no basis for classifying such Export Houses into two different categories on the basis of the date of issuance of the Additional Licences or on the basis of the period of the exports against which such licences have been issued and that such a classification has no connection whatsoever with the object sought to be achieved by the Import & Export Policy 1988 91.
On behalf of the respondents it has been submitted by the learned Additional Solicitor General that there is no similarity between the petitioners who have been granted Additional licences on the basis of their exports made during the period 1977 78 in accordance with the Import Policy 1978 79 and the Export Houses who would be granted Additional licences on or after April 1, 1988, under the Import & Export Policy 1988 91 inasmuch as the conditions of eligibility for grant of such licences and the value of licences under the Import & Export Policy 1978 79 were quite different from those contained in the Import & Export Policy 1988 91.
It has been urged that under Import & Export Policy 1978 79 Additional licences were to be given on the basis of one third of the f.o.b. value of the exports made in 1977 78 whereas under Import & Export Policy 1988 91 Additional licences are to be given on the basis of not foreign exchange earnings from the exports actually made and the value of such Additional licence is only 10 to 12% of the net foreign exchange earnings.
As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment.
It means that all persons similarly circumstan 243 ced shall be treated alike both in privileges conferred and liabilities imposed.
Conversely discrimination may result if persons dissimilarly situate are treated equally.
Even amongst persons similarly situate differential treatment would be permissible between one class and the other.
In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differential must have a rational relation to the object sought to be achieved by the statute in question.
The petitioners, in order to successfully invoke the right guaranteed under Article 14 of the Constitution, will have to establish that they and the Export Houses which were issued Additional licences under the Import Policy 1988 91 are similarly situate.
A close examination of the Import & Export Policy 1978 79 under which the petitioners have been granted the Additional licences and the Import & Export Policy 1988 91 shows that there is material difference between the conditions for grant of Additional licences under Import Policy 1978 79 and the conditions for grant of such licences under the Import Policy 1988 91 and it cannot be said that the petitioners who have been granted Additional licences under the Import & Export Policy 1978 79 and the Export & Import Policy 1988 91 are persons similarly circumstanced.
Under the Import & Export Policy 1978 79, there were two requirements for grant of Additional license: one was the condition as to eligibility for registration as an Export House and grant of Export House Certificates; and the other was the basis for issuing the Additional licences to Export House which had been granted Export House Certificates.
In Para 165 of the said Policy eligibility for grant of Export House Certificates was to be determined on the basis of the export actually made in the three year base period 1975 76, 1976 77 and 1977 78 and in para 166 it was laid down that annual average f.o.b. value of exports in the prescribed base period of select products should not be less than Rs. One crore or those of non select products Rs. Five crores, but in the case of a small scale unit or a consortium of small scale units, the said minimum limit was reduced to Rs. 25 lakhs for select products and Rs. 2 crores for non select products.
In para 176 of the said Policy it was laid down that the value of the Additional licences to be granted for 1978 79 would be calculated at one third of the f.o.b. value of the export of select products made in 1977 78 and manufactured by the small scale and cottage industries 244 plus 5% of the f.o.b. value of other exports of select products made in the same year.
In other words, under the Import & Export Policy of 1978 79 the basis for grant of Export House Certificate as well as grant of Additional licences to Export Houses was the f.o.b. value of the exports.
Under the Import & Export Policy 1988 91 provision with regard to eligibility for the grant of Export House/Trading House Certificate is contained in para 212 which prescribed that the said eligibility shall be determined on the basis of the net foreign exchange (NEF) earnings from the export actually made in preceding three licensing years termed as 'the Base period '.
The expression 'net foreign exchange earnings ' has been defined as the total f.o.b. value of admissible exports minus the c.i.f. value of Advance/Imprest (including Diamond Imprest/DTC Imperest) Licences/Import Export Pass Books (excluding Special Imprest Import Export Pass Book) if any issued, and the REP licences issued or the eligibility thereto, during the preceding three licensing years.
Among the conditions for eligibility for grant of such Certificates are that the annual average NFE earnings in the prescribed base period should not be less than Rs. 2 crores in the case of Export House and Rs. 10 crores in the case of Trading Houses and the NEF earnings in none of the three years of the base period should be less than 25% of the minimum average NFE earnings prescribed.
For determining the eligibility of the products manufactured by small scale and cottage sector industries are to be reckoned at twice the actual NFE earnings.
In para 215 of the said Policy, it is providedthat the Export House/Trading House would be eligible to Additional licences on the basis of the admissible exports made in the preceding licensing year and that the value of these licences will be calculated at 10% of the NFE earnings on the total eligible exports made in the preceding licensing year and that this percentage shall be 12% in cases where an Export/Trading House is able to achieve a minimum growth of 10% in term of NFE realisation in the previous year, over and above the year preceding the same.
This indicates that under the Import & Export Policy 1988 91 for the purposeof grant of Export House Certificate as well as Additional licences the emphasis is on the net foreign exchange earnings made by the Export House, which means that the value of the imports made by the Import House for the purpose of exporting goods is to be excluded from the f.o.b. value of exports.
That apart even the value of the Additional licences which can be issued under the Import & Export Policy 1988 91 on the basis of NFE earnings is much less viz. 10% as against 33.33% of f.o.b. value under the Import & Export Policy 1978 79.
The said 10% value can be 245 increased to 12% in cases where the Export House is able to achieve a minimum growth of 10% in terms of realisation in the previous year, over the above the year preceding the same.
The aforesaid examination of the provisions contained in the Import & Export Policy 1978 79 and the Import & Export Policy 1988 91 shows that while in the Import & Export Policy 1978 79 the emphasis was only on the f.o.b. value of exports without taking into account the outgo of foreign exchange in importing the goods required for achieving the export by an Export House and Additional licences were granted for a much larger amount at a high percentage on the basis of the f.o.b. value of the exports, in the Import & Export Policy 1988 91 there is a more realistic appraisal of actual benefit to country 's economy by the exports by taking into account the net foreign exchange earnings after deducting the value of the imports and additional licences are issued on the basis of the net foreign exchange earnings for a much lesser value on a smaller percentage.
The petitioners who were granted Additional licences to the extent of 33.33% of the f.o.b. value of the exports made them during the year 1977 78 cannot, therefore, be said to be persons similarly circumstanced as Export House who exported goods in the year 1987 88 and in subsequent years and obtain Additional licences for a much lesser value under the Import Policy 1988 91 on the basis of the net foreign exchange earnings.
The provisions conferring flexibility in the matter of imports contained in sub para (4) of para 215 of the Import & Export Policy 1988 91 are intended to give an incentive to Export Houses to increase the exports in a way as to enhance the net foreign exchange earnings of the country.
The petitioner were no granted Additional licences on the basis of net foreign exchange earnings and they have secured the Additional licences on the basis of the f.o.b. value of the exports, without taking into account the value of the goods imported by them for achieving the exports.
They cannot claim to be entitled to the same facilities that have been provided to Export Houses who are granted Additional licences under the Import & Export Policy 1988 91.
Shri H.N. Salve, has, however, urged that in view of the decision of this Court in D. Navinchandra & Co. case (supra) the Export Houses who were granted Additional licences under the Import & Export Policy 1978 79 have to be treated at par with Export Houses who have been granted Additional licences under the Import & Export Policy for the subsequent years and since there has been relaxation in the matter of policy of canalisation of imports under sub para (4) of 246 para 215 in respect of Additional licences granted to Export Houses under the Import & Export Policy 1988 91, the petitioners are also entitled to a similar relaxation.
We are unable to agree with this contention.
In D. navinchandra & Co. case (supra) this Court has not laid down that Export Houses, like the petitioners, who are granted Additional licences on the basis of the order Dated April 18, 1985, are to be treated at par with Export Houses who are granted Additional licences under Import & Export Policy prevalent at the time of import.
In that case this Court, while explaining the background in which the order dated April 18, 1985, was passed, has observed: "It has to be borne in mind that basic background under which the Rajnikant 's decision was rendered, the Export Houses had been refused Export House Certificates because it was insisted that they should have diversified their export and that was a condition for the grant or entitlement of an export house certificate.
it was found and it is common ground now that was wrong.
Therefore, the wrong was undone.
Those who had been denied Export House Certificates on that wrong ground were put back to the position as far as it could be if that wrong had not been done.
To do so, the Custom authorities and Govt.
authorities were directed to issue necessary Export House Certificates for the year 1978 79 though the order was passed in April, 1985.
This was a measure of restitution, but the Court while doing so, ensured that nothing illegal was done." (P.1000) After referring to the decision in Raj Prakash Chemicals Ltd. (supra) this Court has stressed: "The items had to pass to two tests, firstly, they should have been importable under the import policy 1978 79 and secondly they should also have been importable under the import policy 1985 88 in terms of the Order dated 18th April, 1985, and if one may add, in such terms 'in accordance with the import rules ' whether canalised or not canalised." (P. 1001) This Court has gone on to emphasise: "It must be emphasised that in the Order dated 18th April, 1985, this Court did not do away with canalisation.
That 247 was not the issue before this Court.
The expression 'whether canalised or not canalised ' was to include both.
This Court did not say that canalised items could be imported directly by the importers ignoring the canalisation process.
We are of the opinion that this Court did not say that canalisation could be ignored.
That was not the issue.
High public policy, it must be emphasised, It involved in the scheme of canalisation." (Pages 1001 2) Shri Salve has placed reliance on the following observations of this Court in this case: " Canalised items are those items which are ordinarily open to import only through a public sector agency.
Although generally these are importable through public section agencies, it is permissible for any import policy to provide an exception to the rule and to declare that an importer might import a canalised item directly.
It is in that sense and that sense only that the Court could have intended to define the entitlement of diamond exporters.
They would be entitled to import items which were canalised or not if the import policy prevailing at the time of import permitted them to import items falling under such category.
This was also viewed in that light in the case of Indo Afghan Chambers of Commerce (supra).
" These observations only indicate that import of the canalised items under Additional licences issued to Export Houses, like the petitioners, would be permissible if the import policy prevailing at the time of import permits them to import such items.
In other words it would depend on the terms of the import policy prevailing at the time of import.
The decision in Indo Afghan Chambers of Commerce vs Union of India, to which reference has been made, is also to the same effect.
In fact case Export Houses, like the petitioners, wanted to import to Dry Fruits under the Additional licences issued to them.
Under the Import POLIcy 1985 88 prevailing at the time of such import, the import of Dry Fruits was permissible only by dealers engaged in the trade of stocking and selling Dry Fruits.
It was held that the Export Hoses could not import Dry Fruits in view of the said restriction placed in the Import Policy 1985 88.
The decision of this Court in D. Navinchandra & Co. case (supra) reiterates that the rights of the petitioners under the Additional licences issued to them would be governed by the terms of the import policy prevailing at the time of import.
248 Here we find that in the Import & Export Policy 1988 91 there has been relaxation to a limited extent in respect of import by Export Houses who are granted Additional licences under the said Policy on the basis of their exports during that period 1987 88 and subsequent periods.
Since the basis for the grant of Additional licences which are entitled to this relaxation is different from the basis on which Additional licences were granted to the petitioners, the petitioners cannot claim the benefit of the same relaxation and assail the validity of sub para (10) of para 218 of the Import & Export Policy 1988 91.
Shri Salve has invited our attention to the Import Licence dated November 21, 1988 issued in favour of M/s. Suraj Diamonds Industries Pvt.
Ltd wherein it is stated that this licence is valid for import of items as per para 215 of Import & Export Policy 1988 91 subject to restrictions/conditions laid down therein.
It has been submitted that this licence has also been issued under the Import & Export Policy 1978 79 on the basis of the f.o.b. value of exports.
It has been urged that the petitioners as well as the said license, namely, M/s. Suraj Diamonds Industries Pvt. Ltd. are persons similarly situate and whereas M/s. Suraj Diamonds Industries Pvt. Ltd. have been granted an Additional licence whereunder, it is permissible to import items as per para 215 of the Import & Export Policy 1988 91, the said facility has been denied to the petitioners and that the petitioners have been subjected to arbitrary and hostile discrimination.
The learned Additional solicitor General had pointed out the said licence to M/s. Suraj Diamonds Industries Pvt. Ltd. was used under a mistake and the said mistake has been rectified on 2nd December, 1988, i.e., within 10 days of the issue of the said licence.
In view of the fact that the licence issued in favour of M/s. Suraj Diamonds Industries was issued under a mistake and the said mistake has been rectified, it cannot be said that the petitioners have been subjected to hostile discrimination vis a vis other Export House similarly situate.
Before we conclude, we may take note of the recent decision of this Court in B. Vijay Kumar & Co. etc.
vs Collector of Central Excise and Customs, ; The appellants therein had been granted Additional Import licence in pursuance of this Court 's order dated April 18, 1985 in Rajnikant Brothers, case (supra) and had imported canalised items under the said licence.
The goods were not cleared by the customs authorities and the Collector of Customs imposed penalty and passed orders for confiscation of the goods and permitted the appellants to take delivery of good on payment of redemption fine.
The Customs, Excise & Gold (Control) Appellate Tri 249 bunal (hereinafter referred to as 'the Appellate Tribunal ') on appeal, while upholding the order of imposition of redemption fine, set aside the order of Collector imposing penalty.
In view of the special facts and circumstances of the case and specially having regard to the findings of the Appellate Tribunal that the appellants imported canalised items bona fide, this Court set aside the orders of the Collector and the Appellate Tribunal with regard to confiscation of goods and imposition of redemption fine without dealing with the submissions of learned counsel for the parties with regard to the interpretation and the effect of the earlier judgments of this Court in Raj Prakash Chemicals case (supra), Indo Afghan case (supra), Godrej Soap case (supra) and D. Navinchandra & Co. case (supra).
This decision is, therefore, a decision based on the facts of that particular case only.
As a result of the aforesaid discussion it must be held that the petitioners have failed to make out a case for interference by this Court under Article 32 of the Constitution.
As indicated earlier, the licences issued to the petitioners were valid for a period of twelve months and the said period has expired during the pendency of these writ petitions.
By order dated may 3, 1988, this Court, whiledirecting that notice be issued had further directed that the matter be listed on July 20, 1988, and in these circumstances this Court did not pass any interim order for stay.
The writ petitions could not, however, be heard as per the aforesaid directions.
Since the matter has been pending in this Court and the Additional licences issued to the petitioners have expired in the meanwhile we consider it appropriate that the period of validity of the said licences should be extended so that the petitioners can avail the same and are able to import the goods which can be so imported under the prevailing Import Policy.
It is, therefore, directed that the period of validity of the Additional licences that have been granted to the petitioners under Import & Export Policy 1978 79 may be extended by six months from the date of such extension.
Subject to the aforesaid observations, the writ petitions are dismissed.
The parties are left to bear their own costs.
T.N.A. Petitions dismissed.

Response:
The petitioners, carrying,on import export of diamonds, field applications for registration as Export Houses and grant of Additional Import Licences under Para 174 and 176 of the Import and Export Policy 1978 79 which were rejected by the authorities on the ground that they have failed to diversify their exports of "other products" during the year 1977 78.
They challenged the order of the authorities by filing writ petitions before the Bombay High Court under Article 226 of the Constitution.
One of the petitions was dismissed by a learned single judge of the High Court and the said petitions filed an appeal before a Division Bench of the High Court.
During the pendency of the appeal 233 and the writ petition,the Supreme Court by its order dated April 18, 1985 decided the case of Union of India vs Rajnikant Bros. holding that there was no requirement of diversification of exports as a condition for the grant of Export Houses Certificates in the Import Export Policy for the year 1978 79 but the grantee of Additional Licences were not only prohibited from importing items which were excluded in the Export Policy 1978 79 but also from importing items excluded under the Import Policy prevailing at the time import.
The High Court decided the cases of the petitioners in accordance with the decision of this Court in Union of India vs Rajnikant Bros. Purusant to the decision of the Bombay High Court petitioners were granted Export House Certificates and Additional Import Licences which were valid for 12 months, with the same condition as provided by this Court in its order dated April18, 1985 in the case of Rajnikant.
However, the petitioners were not able to make imports under the said licences till 31st March,1988.On 1.4.1988, the Government of India issued a revised Export and Import Policy for the period 1988 91.Under Para 215 of the said revised policy certain flexibilities were granted in the matter of imports to the grantees of Additional Import Licences.
However, under para 218(10) of the said revised Policy the holdersof the Additional Import Licences issuedprior to 1.4.1988 were made ineligible for the benefit of flexibilities in import as contained in para 215(4).
Since ,the petitioners were holding licences issued prior to 1.4.1988 they could not avail the flexibilities in import as contained in Para 215 of the 1988 91 Policy.
Consequently, they filed writ petitions in this Court challenging the validity of para218(10) of the 1988 91 Policy contending (i) that all the Export Houses who were granted Additional Licences constitute at single class and their classification on the basis of date or on the basis of period of exports has no connection with the object sought to be achieved by the 1988 91 policy; (ii) that Para 218(10) of 1988 91 Policy arbitrarily discriminates between Export Houses who were issued Additional Licences prior to 1.4.1988 since the benefits ofPara 214 of 1988 91 Policy were conferred only on the latter; (iii) that in view of the judgement of this Court in C.Naveenchandra and Co. vs Union of India, [1987] 2 S.C.R. 989 the petitioners should be treated at par with the grantees of Additional Licences under the Export Policy for the subsequent years and since there has been relaxation in the matter of policy of canalisation of imports under Para 215(4) in respect Additional Licences granted to Export Houses under the 1988 91 Policy, the petitioners were also entitled to a similar relaxation.
Dismissing the petitions, this Court, 234 HELD: 1.
The right to equality guaranteed under Article 14 ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment.
It means that all persons similarly circumstance shall be treated alike both in privileges conferred and liabilities imposed.
Conversely discrimination may result if persons dissimilarily situate are treated equally.
Even amongst persons similarly situate differential treatment wouldbe permissible between one class and the other.
In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation tothe object sought to be achieved by the statute in question.
[242H, 243A B] 2.
A close examination of the Import & Export Policy 1978 79 and the Import & Export Policy 1988 91 shows that there is material difference between the conditions for grant of Additional licences under Import Policy 1978 79 and the conditions for grant of such licences under the Import Policy 1988 91.
While in the Import & Export policy 1978 79 the emphasis was only on the f.o.b. value of exports without taking into account the outgo of foreign exchange in importing the goods required for achieving the exports by an Export House and Additional licences were granted for a much larger amount at a higher percentage on the basis of the f.o.b.value of the exports, where as in the Import & Export Policy 1988 91 there is a more realistic appraisal of actual benefit to the country ' economy by the exports by taking into account the net foreign exchange earnings after deducting the value of the imports and additional licences are issued on the basis of the net foreign exchange earnings for a much lesser value on a smaller percentage.
Therefore, the basis for the grant of Additional Licences which are entitled to relaxation in import under the 1988 91 Policy is different from the basis on which Additional Licences were granted under the 1978 79 policy.
[243C, 245B C,248A] 3.
The petitioners were not granted Additional Licences on the basis of net foreign exchange earnings and they have secured the Additional Licences on the basis of f.o.b. value of the exports, without taking into account the value of goods imported by them for achieving the exports.
It cannot be said that the petitioners who have been granted Additional Licences under the 1978 79 Policy and the Export Houses who were granted Additional Licences under the 1988 91 Policy are persons similarly circumstanced.
Therefore the petitioners cannot claim the same facilities that have been provided to Export Houses who are granted Additional Licences under the 1988 91 Policy.
Hence they have failed to make out a case for interference by this Court under 235 Article 32 and consequently they cannot assail the validity of Para 218(10) of the Import & Export Policy 1988 91.[245E, 243D, 245F, 249C, 248B] 4.
Export Houses, like the petitioners, who were granted Additional Licences on the basis of order of this Court dated April 18, 1985 are not to be treated at par with Export Houses who are granted Additional Licences under the Import & Export Policy prevalent at the time of import.
Import of canalised items under Additional Licences issued to the petitioners would be permissible if the import policy prevailing at the time of import permits them to import such items.
Therefore the rights of the petitioners under the Additional Licences issued to them would be governed by the terms of the Import Policy prevailing at the time of import.[246A B, 247E, 247H] D. Naveenchandra & Co. Bombay & Anr.
vs Union of India Raj Prakash Chemicals Ltd. & Anr.
vs Union of India & Ors.
, ; ; Union of India vs Godrej Soaps Pvt . Ltd., [1986]3 S.C.R. 771; Union of India vs Rajnikant Bros., Civil Appeal No. 1423 of 1984 decided on 18.4.1985; Indo Afghan Chamber of Commerce vs Union of India, , referred to.
B. Vijay Kumar & Co. etc.
vs Collector of Central Excise and Customs, ; ; held inapplicable.