SCA/6162/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6162 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA Sd/- HONOURABLE MR.JUSTICE Z.K.SAIYED Sd/- ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ?NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ===================================================== PURE BEVERAGES LTD. - Petitioner(s) Versus UNION OF INDIA, ITS NOTICES BESERVED ON THE SECRETARY, & 3 - Respondent(s) ============================================================== Appearance : MR MJ THAKORE for Petitioner(s) : 1, MR BB NAIK for Respondent(s) : 1 - 4. ===================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 23/04/2008 SCA/6162/1987 2/6 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) 1 This petition has been preferred on 23.11.1987 praying for following reliefs : “28. The petitioner prays : (a) That the Hon'ble Court be pleased to declare that Notification No. 203/87 dated 9th September 1987 (Annexure E) is ultra vires, unconstitutional, illegal, null and void; (b) that this Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction under articles 226 of the Constitution of India calling for the records or the case pertaining to the said Notification No. 203/87 dated 9th September 1987 and after entering into the question of the legality thereof, be pleased to quash and set aside the same; (c) that this Hon'ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under articles 226 of the Constitution of India against the respondents : (i) to withdraw and/or cancel the Notification No.203/87 dated 9th September SCA/6162/1987 3/6 JUDGMENT 1987 (Annexure E hereto) (ii) to forthwith continue the benefit of the MODVAT rules (i.e. Rules 57A onwards of the Central Excise Rules, 1944) to Aerated Waters manufactured by the petitioner; and (iii)to forthwith forbear from withdrawing the benefit of the MODVAT rules to the aerated waters by the petitioner. (iv) Forthwith withdraw and/or cancel the said Order Annexure F hereto. (v) Forbear from taking any action in pursuance of or in implementation of the said order Annexure “F” hereto; and (vi) Permit the 1st petitioner to take the credit in respect of the input lying in stock with them purchased on or before 1st October, 1987; (d) That pending the hearing and final disposal of this petition, the respondents, their servants, subordinates, Officers and agents be restrained by an order and injunction of this Hon'ble Court from taking any steps or proceedings in pursuance of or in implementation of the Notification No. 203/87 dated 9th September 1987”. 2 It is not necessary to set out facts and contentions in detail as it is common ground between SCA/6162/1987 4/6 JUDGMENT the parties that the principal issue raised, viz. challenge as to validity of Notification No.203/87 dated 09.09.1987 stands concluded by a judgment rendered by this Court in the case of Gujarat Bottling Company Private Limited V/s. Union of India (Special Civil Application No. 5957 of 1987) dated 01.08.1994 whereunder the following directions have been made by the High Court : “11. In the result the petition is rejected as far as the prayer relating to the constitutional validity of Notification No. 203 of 1987 dated September 9, 1987 is concerned. As far as the challenge to the letter dated October 28, 1987 produced at Annexure-G to the petition is concerned, it is directed that if the petitioner files appeal to the appropriate appellate authority, i.e.,Collector (Appeals), Ahmedabad on or before September 15,1994, the same shall be entertained by the appellate authority and will be decided without taking objection as to limitation. It is hoped that the appeal that may be filed will be decided by the appellate authority concerned as expeditiously as possible. Rule made SCA/6162/1987 5/6 JUDGMENT absolute to the aforesaid extent only, with no order as to costs”. 2 The learned Advocate for the petitioner states that the petitioner may be permitted to challenge communication dated 04.10.1987 (Annexure F) on the same lines as was permitted by the High Court in the case of Gujarat Bottling Company Private Ltd.(supra). 3 In so far as the challenge relating to constitutional validity of Notification No 203/87 dated 09.09.2007 is concerned, the petition is rejected for the same reasons recorded in the aforesaid judgment. As far as the challenge to letter dated 04.10.1987 is concerned, it is directed that if the petitioner files an Appeal before the appropriate Appellate Authority, on or before 07.06.2008, the Appeal shall be entertained by the Appellate Authority and shall be decided without taking objection as to limitation. Rule made absolute to the aforesaid extent only. There shall be no order as to costs. Sd/- (D.A. Mehta, J) SCA/6162/1987 6/6 JUDGMENT Sd/- (Z.K.Saiyed, J) M.M.BHATT