JUDGMENT This Rule is directed against classification of tea gardens into five Zones made by the Central Government by the Notifications issued under sub-item (1) of item (3) of the First Schedule to the Central Excises and Salt Act and Rule 96F of the Excise Rules, for the purpose of levying excise duty at varying rates on tea produced by the gardens according to the Zones to which they belong and in particular against placing the petitioner's tea estate in Zone V, that is to say, in a high excise duty Zone, for re-classification of tea gardens, for transfer of the petitioner's tea garden to Zone II, a lower excise duty Zone, for cancellation of the Notifications dated 28th September, 1958, 24th April 1962, for an order directing the respondents to refrain from levying Central excise duty on tea produced in the petitioner's tea estate at a rate higher than the rate payable in respect of gardens in Zone II and to refund all excise duties paid by the petitioners which is in excess of the sum payable on the basis of the rate payable in respect of gardens in Zone II, for cancellation of Rule 96F of the Central Excise Rules, and for other reliefs. 2. The petitioners carryon business as growers and manufacturers of tea. They own a tea estate known as Shokamato tea garden in the district of Darrang in Assam. It is necessary to state, for reasons which will appear later, that the said tea garden is not situate in Mangaldai subdivision of the said district. The tea grown in the said garden is mostly brought down to Calcutta for public auction, for home consumption as well as for export. Public auctions are held at Calcutta within the jurisdiction of this Court. 3. In the petition it is stated that the tea produced in the said garden is exigible to Central Excise Duty. The petitioners claim that they have all along deposited and still deposit nearly 90% of the Central Excise duty payable on their tea with the Reserve Bank of India, Calcutta, within the jurisdiction of this Court. In paragraph 5 of the petition it is stated that by Act No. 45 of 1958 (Tea Alteration in Duties of Customs and Excise Act 1958) amendments to the Indian Tariff Act, 1934 were effected. In paragraph 5 of the petition it is stated that by Act No. 45 of 1958 (Tea Alteration in Duties of Customs and Excise Act 1958) amendments to the Indian Tariff Act, 1934 were effected. By the said Act the First Schedule to the Central Excises and Salt Act, 1944 was also amended by substituting the new item no. 14 in place of the old item. By the amendment tea was classified into two categories and/or varieties, viz. tea which included ail varieties of the product (excluding waste) except package tea and package tea. By notification No. 100CE dt. September 28, 1958, Rule 96F was introduced into the Central Excise Rules. Rule 96F reads as follows: "Fixation of areas for the purposes of excise duty. Having regard to the weighted average sale price in the internal and export auctions of tea in India, the Central Government may, by notification in the Official Gazette, from time to time group areas into Zones for the purpose of assessment of tea produced in such areas." The petitioners state that the tea is of different varieties and the prices fetched at the auctions held at Calcutta vary depending upon their qualities. The weighted average sale price fetched by their tea at such auction is arrived at by dividing the total sale proceeds by the total quantity of tea auctioned measured in kilogrammes. Prices of tea fluctuate and accordingly the weighted average sale price varies from time to time. The petitioners sell some tea locally. The price of such tea is lower than the price fetched at the auction. In paragraph 8 of the petition, it is stated that under Rule 96F it is incumbent on the Central Government to group areas into zones from time to time having regard to the weighted average sale prices obtained at the auctions. 4. Originally under Rule 96F there were three Zones and the petitioners' tea garden was placed in Zone III. Thereafter from time to time diverse notifications were published making further zones as also transferring tea gardens to zones different from the zones where they were originally placed. In fact, by a notification, Zone III was split up into Zone IIIA and Zone IIIB and Darrang district excluding Mangaldai Sub-Division was placed in Zone IIIB. Thereafter from time to time diverse notifications were published making further zones as also transferring tea gardens to zones different from the zones where they were originally placed. In fact, by a notification, Zone III was split up into Zone IIIA and Zone IIIB and Darrang district excluding Mangaldai Sub-Division was placed in Zone IIIB. Thereafter two more Zones were created and on April 24, 1962 Darrang district except Mangaldai sub-division was placed in Zone V. Mangaldai Sub-division was subsequently placed in Zone II and continues to be in the said Zone. Similarly Marionbari and Simulbari Tea gardens in the Darjeeling District were transferred to Zone I from Zone III in or about 1962. In paragraph 10 of the petition the petitioners contended that there are many Assam tea gardens in Zone II, the weighted average sale price of the produce of which is higher than that of the petitioners' tea. There are also many gardens in Zone II, the weighted average sale price of the produce of which is the same as or similar to that of the petitioners' garden. It is then said that the weighted average sale price of tea of Mangaldai gardens is higher than the weighted average sale price of tea of gardens in the rest of Darrang district and yet Mangaldai Sub-division has been placed in Zone II and the Mangaldai gardens therefore pay a lesser duty than those in the rest of Darrang District which have been placed in Zone V. It is contended that it is incumbent upon the respondent, Union of India to group areas into Zones and/or transpose tea gardens from one Zone to another exclusively on the basis of weighted average sale prices fetched at auctions held at Calcutta. On that principle it is further contended that the petitioners’ garden should be transferred at least to Zone II. The petitioners contend that there are gardens in Zone II which fetch a higher price than the petitioners' tea as also there are gardens in Zone II which fetch prices similar to those fetched by the petitioners' tea. The said gardens are similarly situated. The respondents have wrongfully failed and refused to re-classify the petitioners' garden and in consequence the petitioners had to pay a higher duty than what could be lawfully demanded of the petitioners. 5. The said gardens are similarly situated. The respondents have wrongfully failed and refused to re-classify the petitioners' garden and in consequence the petitioners had to pay a higher duty than what could be lawfully demanded of the petitioners. 5. Prior to the Notifications dated March 1, 1970 and May 1, 1970 by which the rate of duty payable by gardens in Zone V was fixed at Rs. 1.25, per kilogramme the difference between Zone V and Zone II rates was not so large as to make the petitioners' business uneconomical. The expense and trouble of litigations would have been altogether disproportionate to the benefit which re-classification at that stage could have brought. The petitioners claim that unless their gardens are re-classified they will have to close down their business. 6. The petitioners contend that the rate of duty which they are required to pay is illegal, arbitrary, discriminatory-and the inclusion of the petitioners' garden in Zone V by reason of which they are required to pay a higher rate is expropriatory. In paragraph 16 of the petition it is stated that the rate at which duty can at all be levied on the petitioners' tea must be a rate fixed and set out in the first schedule to the Central Excises and Salt Act, 1944. No specific rate of duty has been fixed or set out in the schedule. There is therefore no jurisdiction vested in the Central Government to charge duty at any rate not exceeding the maximum rate prescribed in the schedule on tea of all varieties as laid down in sub-item (1) of Item 3 in the Schedule. 7. In paragraph 18 of the petition it is said that the present classification under which the petitioners' garden has been placed in Zone V and the Notifications dated March 1, 1970 and May 1, 1970 are arbitrary, mala fide, discriminatory and violative of the rights guaranteed under Arts. 14, 19 (1) (f) and (g) and 31 of the Constitution of India. 8. The grounds taken by the petitioners are, inter alia, as follows: (i) There exists no intelligible differentia justifying the inclusion of the petitioners' tea garden in Zone V and Mangaldai gardens in Zone II. 14, 19 (1) (f) and (g) and 31 of the Constitution of India. 8. The grounds taken by the petitioners are, inter alia, as follows: (i) There exists no intelligible differentia justifying the inclusion of the petitioners' tea garden in Zone V and Mangaldai gardens in Zone II. (ii) The weighted average sale price of the produce of gardens in Magaldai Sub-division is higher than that of the produce of gardens in the rest of Darrang district and yet the latter are placed in Zone II and pay lesser duty than the rest of Darrang district which is placed in Zone V paying a higher duty. (iii) The weighted average sale price of the produce of several gardens in Mangaldai Sub-division is higher than that of the petitioners' tea. There are other gardens in Mangaldai Sub-division, the weighted average sale price of the produce of which is the same as that of the petitioners' tea. Mangaldai tea gardens similar to the petitioners' garden pay duty at Zone II rate and the petitioners pay duty at Zone V rate. The imposition of Zone V rate on the petitioners' tea is expropriatory in character. The inclusion of petitioners' garden in Zone V is arbitrary and malafide. 9. The respondents are refusing to place the petitioners' tea garden in Zone II which it is incumbent on them to do. The relevant notifications while professing to have been made in exercise of the powers conferred inter alia, under Rule 96F have been issued in disregard of the weighted average sale price of tea realised by the tea gardens. The duties fixed as payable under the said notifications are arbitrary. The notifications have been made in excess of the power and jurisdiction of the respondent, Union of India under the law. The Notifications are violative of Articles 14, 19(1) (f) and (g) and 31 of the Constitution. There is no jurisdiction or power in the Central Government to group areas into Zones for the purpose of levying duty on tea produced in such areas as has been purported to be done under Rule 96F. There is no jurisdiction or power to fix rates of duty on tea on the basis of weighted average sale price realised in the internal export auctions of tea in India. There is no jurisdiction or power to fix rates of duty on tea on the basis of weighted average sale price realised in the internal export auctions of tea in India. Sale price has always been and is liable to fluctuate and, therefore cannot constitute a permanent or rational basis for classification of Zones for which different rates of duty are being fixed from time to time. No rate of duty of excise for tea has been set forth in the Schedule to the Act and as such no duty is payable. The power conferred on the Central Government in column 3 of the First Schedule to fix the rates does not authorise the Central Government to group areas into zones or to adopt the weighted average sale price in the internal and export auctions of tea in India as a basis for assessment of tea to duty. The division into zones is arbitrary and discriminatory. 10. In paragraph 22 of the petition it is contended that the respondents are liable to refund the duty paid by the petitioners which is in excess of duty payable in respect of Zone II rate since 1967. The total sum refundable for the period from 1967 to May 31, 1970 is Rs.5,34,338.17 p. 11. On the basis of the aforementioned petition, the petitioners obtained the present Rule. 12. The Central Excises and Salt Act 1944, as its Preamble indicates, is an Act to consolidate and amend the Jaw relating to Central duties of Excise. Section 3 of the Act which is the charging section provides that there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods at the rates set forth in the First Schedule. Item 3 of the First Schedule is 'tea'. The item may be set out in extenso. 13. By Notification No. 10 C. E. dated 28th September, 1958 the Central Government framed Rule 96F which has already been set out. 14. By another Notification dated 28th September, 1958 the Central Government in exercise of the powers conferred by Sub-Item (1) of Item 3 of the First Schedule to the Central Excises and Salt Act, 1944 and Rule 96F of the Central Excise Rules 1944, fixed varying rates of duty on tea of all varieties except package tea. 14. By another Notification dated 28th September, 1958 the Central Government in exercise of the powers conferred by Sub-Item (1) of Item 3 of the First Schedule to the Central Excises and Salt Act, 1944 and Rule 96F of the Central Excise Rules 1944, fixed varying rates of duty on tea of all varieties except package tea. By the said Notification all the tea producing areas were divided into three Zones. Zone I consisted of the District of Goalpara and Cachar in Assam, Tripura, Siliguri Sub-division of the Darjeeling district, the district of West Dinajpur and other districts in West Bengal excluding the district of Jalpaiguri and other Sub-divisions of Darjeling district, Gudalur Taluk of the district of Nilgiri and district of Kanya Kumari and Tinevelli in Madras State, several taluks of the districts of Kottayam and some other districts in Kerala and all areas in the Punjab, Bihar, U. P. and Himachal Pradesh as also residuary areas other than those included in Zones II and III. 15. Zone II consisted of districts of Nawgaon and Kamrup in Assam, the district Jalpaiguri in West Bengal several districts in Mysore, one taluk in the district of Kottayam in Kerala and some districts in Madras. Zone III consisted of the districts of Darrang, Lakhimpur and Sibsagar in Assam Sadar, Kurseong and Kalimpong Sub-divisions of Darjeeling district and the district of Nilgiri excluding Gudalur Taluk in Madras. The rate of duty payable per pound of tea grown in Zone I was fixed at 2 n.p. in Zone II 4 n.p., and in Zone III 10 n.p. 16. By a notification dated 17th January 1959 certain amendments were made in the said Notification, Kalimpong Sub-division and jurisdiction list Nos. 31 and 22, that is to say, Simulbaree and Marionbari tea gardens in the Kurseong Sub-division were transferred from Zone III to Zone I and Mangaldai Sub-division of Darrang district was transferred from Zone III to Zone II. 17. By a Notification dated 31st December, 1960 the earlier Notification of 28th September, 1958 was superseded and all tea producing areas were divided into four Zones. Zones I and II remained as before, but Zone III was split up into Zone IIIA and Zone III B. Zone IIIA included the Sadar Sub-division and Kurseong Sub-division excluding the areas in jurisdiction list Nos. 31 to 22 of Darjeeling district. Zones I and II remained as before, but Zone III was split up into Zone IIIA and Zone III B. Zone IIIA included the Sadar Sub-division and Kurseong Sub-division excluding the areas in jurisdiction list Nos. 31 to 22 of Darjeeling district. The district of Darrang excluding Mangaldai Sub-division and the districts of Lakhimpur and Sibsagar in Assam constituted Zone IIIB. The duties payable on Zone I were at the rate of 45 N. P. per K. G., on Zone II 9 P. per K. G., on Zone IIIA 18 per K. G., for Zone IIIB 27 per K.G. 18. By a Notification dated April 24, 1962 Zone IIIA was split into two different Zones, viz., Zone III and Zone IV attracting different rates of duty. Zone III consisted of the Sadar and Kurseong Sub-divisions excluding the areas in jurisdiction list Nos. 31-22, 29, 33, 20, 21, 23 & 24 of Kurseong Sub-division of Darjeeling district. Zone IV consisted of the district of Nilgiri excepting Gudalur taluk in the State of Madras. Zone IIIB was re-designated as Zone V. The rates of duty payable for Zone III was 30 np., for Zone IV 35 np., and for Zone V 45 np. per kg. It appears that by a Notification dated October 28, 1967 a further redistribution of areas under various Zones was made. 19. By a Notification dt. 1st May 1970 the earlier Notification dated April 24, 1962 was superseded and the rates of duty payable per kilogram me of tea produced in different Zones were prescribed and a consolidated re-description of the different Zones was given. 20. Under the said Notification, Zone I consists of the districts of Goalpara and Cachar in Assam, Tripura, Siliguri, Kalimpong Sub-division and areas in jurisdiction list No. 31, 29, 33, 20, 21, 22, 23 and 24 in Kurseong Sub-division, the district of West Dinajpur and other Districts of West Bengal excluding the District of Jalpaiguri and other Sub-Divisions of Darjeeling District, Gudalur Taluk of the Nilgiri District and Kanyakumari and Tinevelli in Madras State. Zone II consists of the district of Nowgong, Kamrup and Mangaldai Sub-division of Darrang district in Assam and the district of Jalpaiguri. Zone III consists of the Sadar Sub-division and Kurseong Sub-division excluding the jurisdiction list nos. 31, 29, 33, 20, 21, 22, 23 and 24 of Darjeeling district. Zone II consists of the district of Nowgong, Kamrup and Mangaldai Sub-division of Darrang district in Assam and the district of Jalpaiguri. Zone III consists of the Sadar Sub-division and Kurseong Sub-division excluding the jurisdiction list nos. 31, 29, 33, 20, 21, 22, 23 and 24 of Darjeeling district. Zone IV consists of the District of Nilgiri excluding Gudalur taluk in Madras State. Zone V consisted of the district of Darrang excluding Mangaldai Sub-division, and the districts of Lakhimpur and Sibsagar in Assam. Under the said Notification the rates of duty payable per K. G. are 25 p. for Zone I, 50 p. for Zone II, Rs. 1.50 for Zone III, Re. 1/- for Zone IV and Rs. 1.50p. for Zone V. 21. The Notification dated 1st May, 1970 as also the earlier notifications were issued by the Central Government in exercise of the powers conferred by the Sub-Item (1) of Item No.3 of the First Schedule to the Central Excises and Salt Act, 1944 and Rule 96F of the Central Excise Rules 1944. By that notification as also by the earlier Notifications all tea producing areas were grouped into Zones and different rates of duty were prescribed for different zones. 22. An argument was addressed on behalf of the petitioners that the Central Government have no power to levy duties, far less to levy duties on different varieties of tea at different rates, as no specific rate or rates of duty have been prescribed in the schedule itself. 23. Mr. Subrata Roy Chowdhury appearing on behalf of the respondents submitted that different rates of duty for different zones were prescribed by notifications made in exercise of the powers conferred by Sub-Item (1) of Item No.3 of the First Schedule and not in exercise of the powers conferred by Rule 96F. All tea producing areas have been grouped into zones by the Central Government under Rule 96F. Rule 96F, he submitted, authorises the Central Government to group tea producing areas into zones on principles expressed and implied in the statute and in Rule 96F itself. Under Rule 96F, regard has to be had to the weighted average sale price fetched by the tea produced by those areas, in grouping areas into zones. Rule 96F, he submitted, authorises the Central Government to group tea producing areas into zones on principles expressed and implied in the statute and in Rule 96F itself. Under Rule 96F, regard has to be had to the weighted average sale price fetched by the tea produced by those areas, in grouping areas into zones. He submitted that under Sec. 3 of the Act read with Item 3, Sub-Item (1) of the schedule the Central Government have ample power to impose different rates of duty on different varieties of tea though, in no case, the rate can validly exceed Rs. 2/- per kg. The zones formed by the Central Government under Rule 96F represent, by and large, five different varieties of tea in respect of which imposition of different rates of duty are justifiable and permissible under Item 3, Sub-item (1) of the First Schedule. It was pointed out on behalf of the petitioners that Sub-item (1) of Item 3 of the schedule empowers the Central Government to tax all varieties of tea except package tea and instant tea at a rate not exceeding Rs. 2/- per kg. as the Central Government may by notification in the official Gazette fix. The Central Government, it was argued, could fix any rate within the prescribed limit but that rate must be one uniform rate. It must apply to all varieties and description of tea covered by Sub-item (1). The Central Government cannot validly levy tax at different rates on different varieties of tea. In so far as the Central Government have sought to levy different rates of duty on different varieties of tea under the relevant notifications, they have exceeded their power which has been conferred by Sec. 3 of the Act read with item 3 sub-item 1 of the schedule. Mr. Deb contended that item 3 sub-item (1) is a class by itself. The Central Government has been empowered by the statute to levy a rate of excise duty not exceeding Rs.2/-per kilogramme. There is no power in the Central Government to create further classification within Sub-item (1) and levy different rates on tea of different sub-classes. Mr. Dev referred to (1) State of Bombay vs. F. N. Balsara. The Central Government has been empowered by the statute to levy a rate of excise duty not exceeding Rs.2/-per kilogramme. There is no power in the Central Government to create further classification within Sub-item (1) and levy different rates on tea of different sub-classes. Mr. Dev referred to (1) State of Bombay vs. F. N. Balsara. AIR 1951 S. C. 318 in which Sec. 39 (c) of the Bombay Prohibition Act which conferred power on the State Government to exempt any person or class of persons from the observance of all or any of the provisions of the statute came up for consideration. He contended that under the Central. Excises and Salt Act the Central Government have not been authorised to make further classifications within a particular class created by the statute for levy of excise duty and therefore, the sub• classification which has been made is not permissible. He submitted that a fiscal statute has to be strictly construed. He relied on the observation of Lord Russell of Killowen in (2) Inland Revenue Commissioner vs. Duke of West minister 1936 A.C. 1 at p. 24. "I Confess that I view with disfavour the doctrine that in taxation cases the subject is to be taxed if, in accordance with a Court's view of what it considers the substance of the transaction, the Court thinks that the case falls within the contemplation or spirit of the statute. The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case." 24. These observations were relied on by the Supreme Court in (3) A. V. Fernandez v. The State of Kerala. AIR 1957 S.C. 657 , Bhagwati J. in delivering the judgment of the Court said: "It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law the subject can be taxed. If the Revenue satisfies the Court that the case falls strictly within the provisions of the law the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions" of the legislature and by considering what was the substance of the matter". 25. In answer, Mr. Roy Choudhury argued that under section 3 read with sub-item 1 of item No.3 of the schedule, the Central Government are free to levy by Notification different rates of duty on different varieties of tea so long as those rates do not exceed Rs. 2/- per Kg. He relied on the case of (4) Northampton Corporation v. Ellen, (1904) 1 KB 299 by sec. 49 of the relevant statute a Company was empowered to charge for supply of water for domestic use, rates 'not exceeding' certain amounts graduated according to the value of the premises, and by sec. 59 of the Act it was provided that "the Company may from time to time supply any person with water for any purpose for which such supply is required, for such remuneration, and upon such terms and conditions, as shall be agreed upon between the Company and the person desirous of such supply of water, under a special agreement". By a later Act the undertaking and powers of the Company were transferred to a municipal Corporation. By sec. 36 of the later Act, sec. 49 of the earlier Act was repealed and the Corporation was empowered "to charge for the supply of water for domestic use to any dwelling house a sum not exceeding 7’5% per annum on the net rateable value of such dwelling houses, as ascertained by the valuation list in force at the commencement of the quarter during which the water rate was payable". There was no express provision in either of the Acts requiring equality of rating in respect of the charge made for water to consumers. The Corporation charged to consumers in respect of water supply in one part of the district at the rate of 7’5% and in the remainder of the district at the rate of 5% upon the rateable value of their respective dwelling houses. The Corporation charged to consumers in respect of water supply in one part of the district at the rate of 7’5% and in the remainder of the district at the rate of 5% upon the rateable value of their respective dwelling houses. In an action brought to recover the sum charged to a consumer for water at the higher rate, the Court of Appeal, reversing the judgment of Bigham J. field that no implication arose from sec. 36 of the later Act that the Corporation was bound to charge for the water at an equal rate in the pound to all consumers and therefore the fact that they had not done so was no defence to the action. In course of his judgment Lord Alverstone C.J. observed as follows: "The absence of any equality clause in Water Works Acts has been frequently referred to, and I think the authority which has been cited, namely Hungerford Market Co. v. City Steamboat Co. is important as showing that it is necessary in order to support the defence in such a case that there should be found in the statute some obligation upon the Company or other body to deal uniformly with all persons. Such an obligation may be express, or may be implied from the mode in which the statute is framed or from the essential nature of the charge itself. I do not think that Sec. 36 gives rise to any implication that they must charge all consumers at an equal rate in the pound". Collins M. R. said: "the charge being imposed under statutory authority, we have to see whether the statute imposes any limitation on the Corporation in charging for a supply of water for domestic purposes otherwise than by defining a maximum which they must not exceed, or whether there is some provision that the charge must be made upon all consumers at an equal rate in the pound. It was admitted that there was no express provision to that effect, and the only question therefore, appears to me to be whether such a provision can be implied from words of sec. 36 of the Act of 1884. I do not think such an implication arises from the words of the Section". 26. Reliance was placed on the case of (5) Hungerford Market Co. v. The City Steamsboat Co. Ltd, 121 English Reports 479. 36 of the Act of 1884. I do not think such an implication arises from the words of the Section". 26. Reliance was placed on the case of (5) Hungerford Market Co. v. The City Steamsboat Co. Ltd, 121 English Reports 479. There Sec. 76 of the statute empowered the plaintiff to charge the Master of any vessel "in respect of every passenger landing on or embarking from the wharf or cross-way" authorised by the Act to be made, tolls which should at any time or from time to time be fixed and appointed by plaintiffs but not exceeding a sum or sums mentioned in the schedules to the Act. In the schedule, a sum of 2nd was the maximum prescribed as payable by a passenger. It was held that in the absence of an equality clause in the statute the plaintiffs were entitled to charge different persons at different rates. 27. Collins M.R. in his judgment in (4) Northampton Corporation v. Ellen, observed that the ground on which that conclusion was arrived at was that there were no words in the statute expressly imposing an obligation to charge equally, and there way no necessary implication of such an obligation from the relations of the parties. 28. In the present case there is no equality clause in the statute. There is nothing from which it may be implied that all varieties of tea are to be taxed at equal rates. Only a maximum rate has been prescribed. I am therefore, of opinion that the principles expressed in these cases are fully applicable here. 29. Mr. Deb on behalf of the petitioner submitted that the expression 'not exceeding' was not construed in either of these casse. Moreover, these cases reveal, on a careful analysis, that they are not tax cases at all in a real sense. They relate to transactions in sale of goods or charges for services in respect whereof the principles laid down in those cases might apply, but they have no application in the field of taxation. He relied on the case of (6) Re: Baker Ltd., (1954)2 All ER 790 for the proposition that water rate contemplates payment for a commodity and is not a tax. He relied on the case of (6) Re: Baker Ltd., (1954)2 All ER 790 for the proposition that water rate contemplates payment for a commodity and is not a tax. It is true that in (4) Northampton Corporation's cast' Lord Alversdone, C. J, drew sustenance from the fact that under the earlier statute, the company whose undertaking and powers the Corporation had taken over were free to charge different rates for the supply of water by contract and the Corporation as its successor had not lost that right. It is not however correct, in my estimation, to say that the judgment of the learned Chief Justice is referable only to that aspect of the matter. Both the learned Chief Justice as also the learned Master of the Rolls appear to have held as a general proposition that in the absence of an equality clause the Corporation was not under any obligation to charge all consumers at an equal rate. Neither judgment makes a distinction between price of goods or remuneration for service done on the one hand and taxes on the other, nor is the ratio of the decision founded on any such principle. There is one sentence in the judgment of Collins, M. R. which is of some assistance in the facts of the present case. He says 'the cost of supplying one householder may be different from that of supplying another, and, therefore, there is no such antecedent presumption in favour of equality of rating as there is in the case of a charge made on citizens in proportion to their respective means in respect of the performance of a public duty". On that principle, excise duty may be levied at rates depending on the capacity of the commodities to bear those charges. Of course, commodities similarly circumstanced, must be treated equally for the purpose of taxation. 29. It is true that the words 'not exceeding' were not construed in these cases, but nevertheless the principles laid down in the context of those words in the statute are, in my opinion, applicable in the facts of the present case. Moreover, there is nothing in these cases or in any case cited at the Bar from which a distinction may legitimately be drawn between a taxing statute and the statutes which were considered in these cases. 30. Moreover, there is nothing in these cases or in any case cited at the Bar from which a distinction may legitimately be drawn between a taxing statute and the statutes which were considered in these cases. 30. I am, therefore, of opinion that under section 3 of the Central Excises and Salt Act. 1944 read with sub-item (1) of item 3 of the First Schedule thereto, it is not incumbent on the Central Government to levy and collect duties of excise on all varieties of tea at a uniform rate. The Central Government have ample power to levy and collect duties at different rates on different varieties though in no case such rate may exceed the limit prescribed by the statute. 31. It was then submitted that the expression 'varieties' in schedule (1) item (3) sub-item (1) does not contemplate the produce of different zones artificially constituted by the Central Government as has been done by the Notifications under Rule 96F. Some of the tea gardens situate in different zones often grow the same quality or variety of tea. The word 'variety' refers to the quality or characteristics of tea. Therefore, assuming that under Item 3, sub-item (1) the Central Government have power to levy duty at different rates on different varieties of tea, such power does not include the power to prescribe different rates of duty on the produce of different zones. If classification is permissible under item 3 sub-item (1) the classification must be done on the basis of varieties, that is to say, on the basis of qualities and characteristics of tea and not on the basis of their place of origin. In answer to this contention, Mr. Roy Chowdhury pointed out that the categories of varieties are never closed. Classification on the basis of situation of gardens in a particular district or in any other geographical or administrative unit is also a classification of varieties. In my opinion, it is not necessary in the facts of this case to go to either extreme. Traditionally there are different varieties of tea grown in India, such as common tea, Darjeeling tea of the high grown variety, the variety grown in the foothills of the Himalayas, Assam tea of two varieties-one grown in upper Assam and the other in Lower Assam, tea grown in Dooars, in Cachar and Tripura. Traditionally there are different varieties of tea grown in India, such as common tea, Darjeeling tea of the high grown variety, the variety grown in the foothills of the Himalayas, Assam tea of two varieties-one grown in upper Assam and the other in Lower Assam, tea grown in Dooars, in Cachar and Tripura. It is well known that Darjeeling tea is of a very high quality specially valued for its flavour. Upper Assam tea is also of a high quality. Darjeeling tea and Assam tea have high export potentials. Some parts of Lower Assam grow only common tea or tea almost indistinguishable from common tea. It is also well known that Nilgiri tea is of a different quality. There is a tea of an intermediate variety, that is to say, of a quality, a little superior to common tea, but which comes nowhere near the high quality tea of Darjeeling, upper Assam or the Nilgiris. It is also a fact, though exceptions may easily be found, that, by and large, different varieties of tea are grown in those traditionally different tea producing areas. The situation of a tea garden is more often than not, an index of the variety of tea it produces. In that view of the matter, it cannot be said that the classification made of areas producing varieties of tea into zones which have been formed on the basis of the traditional divisions of tea producing areas, is not a classification of varieties. 32. I may now refer to some of the relevant provisions of the Central Excises and Salt Act for making Rules. Power of Central Government to make rules- (1) The Central Government may make rules to carry into effect the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may- (i) provide for the assessment and collection of duties of excise, the authorities by whom functions under this Act are to be discharged, the issue of notice requiring payment, the manner in which the duty shall be payable, and the recovery of duty not paid. Publication of - rules and notifications-All rules made and notifications issued under this Act shall be made and issued by publication in the Official Gazette. All such rules and notifications shall thereupon have effect as if enacted in this Act. Publication of - rules and notifications-All rules made and notifications issued under this Act shall be made and issued by publication in the Official Gazette. All such rules and notifications shall thereupon have effect as if enacted in this Act. Provided that every such rule shall be laid as soon as may be after it is made before Parliament while it is in session. for a total period of thirty days which may be comprised in one session or in two or more sessions and if before the expiry of that period, Parliament makes any modification in the rule or directs that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be. 33. Mr. Deb relied upon the case of (7) Newspaper Ltd. v. State Industrial Tribunal, U. P., AIR 1957 S.C 532 and contended that if a Rule is not made in due compliance with the requirements of the statute, it is no Rule at all in the eye of law and it will not have effect as if enacted in the Act, section 38 notwithstanding. The proposition advanced by Mr. Deb is not open to dispute. The question is whether Rule 96F has been validly made. It seems to me that Rule 96F has been made to carry into effect the purposes of the Act, and in particular, to provide for assessment and collection of revenue. The Rule has therefore been made by the Central Government in exercise of the powers conferred by sub-section (1) and clause (i) of sub-section (2) of section 37. The Rule has been published in the Official Gazette. It has not been disputed that the Rule was laid before Parliament as required by the statute. The Rule must therefore have effect as if enacted in the Act as provided by section 38. In that view of the matter, it cannot be contended that the Rule is ultra vires the Act though the Rule may be open to constitutional challenge like any other provision of the Act. 34. It was contended that Rule 96 F does not formulate any policy for making a rational classification of tea nor does it lay down any determinable basis for grouping areas into zones for the purpose of assessment of excise duty on tea. 34. It was contended that Rule 96 F does not formulate any policy for making a rational classification of tea nor does it lay down any determinable basis for grouping areas into zones for the purpose of assessment of excise duty on tea. Under Rule 96F grouping has to be done, if at all, having regard to the weighted average sale price of tea obtained in the auctions but the areas which have to be grouped, have neither been defined nor has any indication been given as to how they are to be selected for grouping. After all, in the contemplation of the Rule, the unit is the area. If 'area' is not defined expressly or by implication the units which are to be grouped into zones are left indeterminate. In that context, it must be held that no guidance has at all been given for constitution of zones on any rational basis. It was submitted that if by 'area' a tea garden is to be understood then that will be some guidance. In that case, the proper thing will be to group together tea gardens, the produce of which fetches weighted average sale prices within a particular range so as to constitute a zone. But that is not what tile Central Government have done by the Notifications. They have not taken into consideration the weighted average sale price of the produce of individual tea gardens into consideration in forming the zones. 35. In answer to this criticism, Mr. Roy Choudhury, appearing on behalf of the respondents, submitted that in Rule 96F 'areas' mean well recognized tea producing areas, as for example, Darjeeling, Assam, Nilgiri or the common tea producing areas as they are understood in the tea trade. Rule 96F, therefore, contemplates that those diverse tea producing areas are to be grouped into zones having regard to the weighted average sale prices fetched by those tea-producing areas regarded as units. By and large, the areas which have been grouped into zones, are geographical divisions distinguished by the fact that they produce certain specific varieties of tea. It is true that in some cases a particular tea producing area has bean broken up and one part of the area has been grouped under one zone and the other part under another. By and large, the areas which have been grouped into zones, are geographical divisions distinguished by the fact that they produce certain specific varieties of tea. It is true that in some cases a particular tea producing area has bean broken up and one part of the area has been grouped under one zone and the other part under another. For example, Simulbaree and Marionbaree tea estates have been included in Zone-I for special reasons, though by their geographical situation they should have come under Zone III, that is to say, among the tea gardens of the Sadar and Kurseong sub-divisions of Darjeeling district paying a higher rate of duty. 36. In (8) Jyoti Pershad v. Union Territory of Delhi, A. I. R. 1961 S. C. 1602 it was said that in order to comply with the rule as to equal protection of laws it is not necessary for the guidance of the designated authority, which is to exercise the power or is vested with the discretion, that rules should be laid down in express terms in the statutory provision itself. Such guidance may be obtained from or afforded by the preamble read in the light of surrounding circumstances, which necessitated the legislation taken in conjunction with well-known facts of which the Court might take judicial notice or of which it is apprised by evidence before it in the form of affidavits. The Court therefore may very well take judicial notice of the fact that traditionally different varieties of tea are produced in different tea producing areas, a fact which is supported in this case by the affidavit evidence adduced on behalf of the Revenue. That however does not mean that tea of an inferior quality is not grown in a superior quality area at all or superior quality tea is not at all produced in an area which predominantly produces common tea. Be that as it may, making due allowance for inevitable anomalies, it is undeniable that the different zones formed by the Central Government appear to conform to groups of areas producing specific varieties of tea. 37. Mr. Be that as it may, making due allowance for inevitable anomalies, it is undeniable that the different zones formed by the Central Government appear to conform to groups of areas producing specific varieties of tea. 37. Mr. Deb in support of his contention that Rule 96F does not lay down any policy and provides no guidance for the purpose of fixing varying rates of duty on different zones, relied on the decision in (9) C. N. M. C. S. & W. Mills v. Ahmedabad Municipality, A. I. R 1967 S. C. 1801. The Municipal Corporation under rule 9 of the Taxation Rules made under Bombay Act No. 59 of 1949 imposed tax on buildings on the basis of a flat rate per hundred sq. ft. of floor area. The buildings were divided into two classes, one used for processing and the other for non-processing purposes. The monthly rental was taken for each class at a particular figure. It was held that the flat rate method on the basis of floor area could only be applied where majority of properties are so nearly alike in character as to be regarded as identical for rating purposes. Applied indiscriminately, it was sure to give rise to inequalities as there had been no classification of buildings on any rational basis. Further, there was no basis for dividing the buildings under two general classes, as buildings used for processing and non-processing purposes. Rule 9 was therefore struck down. This case, in my opinion, is readily distinguishable in the facts of the present case. In the Bombay case a flat rate was imposed without any rational classification of buildings. The basis of classification did not have any intelligible nexus with the object of the statute. Under Rule 96F of the Central Excise Rules all tea producing areas have been grouped into Zones by Central Government. The units are the areas which traditionally have a general reputation for producing their respective varieties of tea. Those areas have been grouped under Rule 96F into Zones having regard to the weighted average sale price fetched by the tea they produce. 38. It was then contended that in forming Zones, the Central Government have not gone by the weighted average sale price alone. They have admittedly taken a multitude of factors into consideration which they cannot do on a proper construction of Rule 96F. 39. 38. It was then contended that in forming Zones, the Central Government have not gone by the weighted average sale price alone. They have admittedly taken a multitude of factors into consideration which they cannot do on a proper construction of Rule 96F. 39. The phrase "shall have regard to" in a statute came up for consideration in (10) Ryots of Garabandho v. Zemindar of Parlakimedi 70 Indian Appeals 130. The respondent applied under Chapter XI of the Madras Estates Land Act for settlement of rent in respect of some villages, and by a supplemental application for settlement of a fair and equitable rent under Sec. 168, sub-sec. (1) of the Act. The Special Revenue Officer, made an order doub1ing the previous rents. On the ryots' appeal to the Board of Revenue a member of that Board, sitting alone, reversed the decision and allowed an increase of rent of only 12'5% per cent. considering himself bound by proviso (b) to sub-section (1) of Sec. 30, which reads as follows: "Provided... …. …. …. ...that no enhancement under this Clause shall raise the rent by more than 2 annas in the rupee of the rent previously payable for the land". The zemindar appealed by way of a revision to the Collective Board of Revenue. The Collective Board decided by a majority that proviso (b) to Sec. 30, Sub-sec. (1) did not apply to this case. At the same time, they were not prepared to endorse so drastic an enhancement of rent as 100% and fixed as the appropriate increase an enhancement of six annas in the rupee, or 37'5%, per cent. The appellants petitioned to the Madras High Court for a writ of certiorari to quash the order of the Collective Board of Revenue, complaining that the rents had been raised above the limit of two annas in the rupee, or 12'5% which was the maximum increase permited under sec. 30, sub-sec 1(b), of the Act. The High Court held that in the circumstances, the Board of Revenue had power to enhance the rent by 37'5% per cent. Thereupon the appellant appealed to the Privy Council. In dismissing the appeal, the judicial Committee in course of their judgment observed as follows: "The appellants' argument that the proviso already cited from Sec. 30 of the Act applies to the present case is based on sub-sec 2 of sec, 168. Thereupon the appellant appealed to the Privy Council. In dismissing the appeal, the judicial Committee in course of their judgment observed as follows: "The appellants' argument that the proviso already cited from Sec. 30 of the Act applies to the present case is based on sub-sec 2 of sec, 168. In settling rents under "this section, the collector shall presume unless the contrary" is proved that the existing rent or rate of rent is fair and equitable and shall have regard to the provisions of this Act for determining rates of rent payable by a ryot.' The view taken by the majority of the Collective Board of Revenue in making the order which is now complained of, is that the requirement to "have regard" "to" the provisions in question bas no more definite or technical meaning than that of ordinary usage, and only requires that these provisions must be taken into consideration, In their view, the prime duty of the Revenue Officer under Ch. XI, is to fix a fair and equitable rent, and though he must be guided by the principles underlying such provisions as are contained in Ch. III, be is not strictly bound by such provisions. Having regard to the long time that had elapsed since the last tentative settlement of rent in 1867-1868, to the prodigious rise in prices that had taken place since then, and to the general economic improvement of this part of the country, the Collective Board considered that an enhancement of 37'5% per cent would not be oppressive, and directed the Revenue Officer to reduce to that figure the enhancement of 100 per cent. which he had made. ..... ….. ….. ….. ….. ….. Their Lordships find themselves on this matter in agreement with the view taken by the majority of the Collective Board, It is not possible to peruse the proceedings of the Special Revenue Officer in this case without seeing that a number of matters besides the rise in prices of staple food crops were considered by him, if he was to carry out his duty under Ch. XI. Under Ch. XI, the existing rent has only the benefit of a presumption and its fairness has to be probed. XI. Under Ch. XI, the existing rent has only the benefit of a presumption and its fairness has to be probed. For this purpose many matters have to be 'Considered, and rules have been made under the Act requiring that attention should be paid to a number of matters such as the condition of the land, the nature of the soil the prevailing rates of tent in adjoining villages, and so forth. In these circumstances. their Lordships think it impossible to say that the duty to have regard (inter alia) to the prohibition Contained in proviso (b) of the first clause of sec. 30, is a duty to keep rigidly within the limit there imposed for cases to which the section of its own force applies. The expression "have regard to", or expressions very close to this are scattered throughout this Act, but the exact force of each phrase must be considered in relation to its context and to its own subject-matter. Any general interpretation or such a phrase is dangerous and unnecessary. but it is fairly clear, as a matter of English, that the view taken by the majority of the Collective Board is nearer to the ordinary meaning of the phrase "have regard to" when it appears in a statute, than is that of the dissentient member. This may be illustrated by such English cases as The Queen vs. Vestry of St. Pancras, and Me. Dermott v. Owners of s. s. Tintoretto. 40. The phrase 'having regard to' was considered by the Supreme Court in (4) Mysore State Electricity Board v. Bangalore W. C. and S. Mills. A. I. R. 1963 S. C. 1128 in construing Sec. 49 of the Electricity Supply Act, 1948. The section read "subject to the provisions of this and/or any regulation made in this behalf the Board may supply electricity to any person being a licensee upon such terms and conditions as the Board may from time to time fix having regard to the geographical position of the supply and the purpose for which it is required." It was contended that a dispute may arise between the Board and the consumer of electricity in the sense that the consumer may allege that in fixing the priorities for supply of electricity, the Board had no regard to the geographical position of the supply and the purpose for which it was required. The Court relied on the interpretation given by the Judicial Committee, of the expression 'shall have regard to' in Ryots of Garabandho v. Zemindar of Parlakimedi and observed that the expression 'having regard to' does not contemplate that a consumer of electricity can raise a dispute against the Board on the footing that the Board did not pay due regard to the nature and geographical position of the supply and the purpose for which it was required. In other words, the expression was not construed by the Supreme Court to mean that the factors to which regard had to be had under the statute were the only guiding factors. 41. Mr. Roy Chowdhury sought to make a distinction between 'shall have regard to' and 'having regard to' and submitted that for the purpose of his argument, namely, that under Rule 96F the weighted average sate price is only one of the factors to be taken into consideration, his case is much stronger than the case decided by the Judicial Committee and therefore, what was said in that case applied to the present case with greater force. Mr. Deb contended that there is no difference in meaning between 'shall have regard to' and 'having regard to'. In my opinion, the distinction sought to be made is not one of substance. They are merely turns of phrases, different ways of saying the same thing. Be that as it may in my view, the decisions of the Privy Council and of the Supreme Court are authorities for the proposition that the implication of the words 'shall have regard to', or 'having regard to' depends on the context in which the words are used. 42. In the context of the fact, that the Act under consideration is a fiscal statute and the purposes of the statute are manifold, that is to say, to raise and collect revenue for the State, to promote export, to give relief to common tea, to discourage consumption of quality tea at home so as to make it available for export, and a multitude of social and economic purposes underlying any fiscal legislation in modern times, it will not be fair to hold that Rule 96F contemplated that Zones are to be formed on the sole and exclusive basis of weighted average sale prices fetched by the produce of tea gardens. 43. Mr. 43. Mr. Deb contended that the concept of average as a basis for classification is itself open to objection because the purpose of taking an average is to treat unequal as equals. He relied on a decision of the Madras High Court in Buckingham & Carnatic Co. Ltd. v. State of Madras, 1966 (2) M.L.J. 172 . By that decision the court held that the Madras Urban Land Tax Act was liable to be struck down as violating Article 14 of the Constitution because the tax under the charging section of the Act was levied on urban land not on the actual market value of such land but on the average value of lands in a locality known as a sub-zone. In that case, the Court found that in the charging section there was a total lack of classification of urban lands according to their market values and corelating and applying the rate of tax to such market value. In the present case, there is a rational classification of tea producing areas of traditional, and therefore determinable, description into zones formed with due regard to weighted average sale price of the tea produced in those areas. On the other aspect of the decision, I am unable to agree that the concept of average militates against the rule of equality enshrined in Article 14 of the Constitution, In (13) Twyford Tea Co. v State of Kerala, AIR 1970 S. C. 1133, paragraph 17, the Supreme Court upheld a classification based on average. The same principle was also upheld by the Supreme Court of the United States in (14) Michigan C. R. Co. v. Powers, 50 Lawyer's Edition 744 at pages 763-4. 45. It Wag argued at some length that the Central Government in classifying the tea gardens under Rule 96F. have not proceeded on the basis of weighted average sale price of the produce of individual gardens. As I have said, the weighted average sale price contemplated in the Rule is the weighted average sale price of the produce of a particular tea producing area, that is to say, of all the gardens situate in that area taken as a whole. It was also argued that assuming that to be the correct basis, the Central Government, have not used that basis at all. It was also argued that assuming that to be the correct basis, the Central Government, have not used that basis at all. They have calculated the weighted average sale price by taking the average of the weighted average sale prices of individual tea gardens situate in a particular tea producing area. It was contended that this is, in effect, making an average of averages. It is true that if the weighted average sale price is calculated on the basis of the total quantity of tea sold and the total price obtained at auctions by all the gardens in a particular tea producing area, the weighted average sale price, so calculated will be slightly different from the figures arrived at by the method adopted by the Central Government. As I have held that in constituting the zones all that the Central Government are required to do under Rule 96F is to take the weighted average sale price of tea-producing areas into consideration, but they are free to take other relevant factors into account, I am unable to hold that a minor discrepancy of that nature is by itself a ground for holding the classification to be invalid. 46. It was further submitted by Mr. Deb that Rule 96F contemplates that the weighted average sale price is to be calculated on the basis of price obtained in internal and export auctions of tea in India. He pointed out that internal auctions have been abolished. The Rule therefore cannot be given effect to in its entirety or in other words, it has become unworkable. It must be borne in mind that a great deal of tea has always been sold in London auctions. A large quantity has also been and is being sold by private sale. It was therefore never contemplated that the weighted average sale price to be taken into consideration for the purpose of Rule 96F would be based on the price obtained by all the tea sold by all the tea gardens. In my view, Rule 96F has to be applied mutatis mutandis, that is to say, in so far as circumstances permit and therefore, the Rule should not be stuck down on the ground urged by counsel. 47. In my view, Rule 96F has to be applied mutatis mutandis, that is to say, in so far as circumstances permit and therefore, the Rule should not be stuck down on the ground urged by counsel. 47. In (15) Murthy Match Works v. The Assistant Collector of Central Excise, AIR 1974 SC 497 a Notification made in exercise of the powers conferred by Sub-Rule 1 of Rule 6 of the Central Excise Rules 1955 by which certain exemptions from payment of excise duty were granted to matches were challenged as violative of Art. 14 of the Constitution. It was contended that by that Notification unequals were treated equally, that small manufacturers of matches have been subjected by the impugned notification to excise duty at the same rate as bas been applied to larger producers in disregard of the traditional classification between the smaller and the larger groups of match manufacturers who are unequal in their economic strength ill the mailer of production and sale. There are two distinct categories of manufacturers of matches viz. manufacturers in the mechanised sector and those in the non-mechanised sector. The non-mechanised sector comprises units of varying capacity. Inicially on the basis of quantity of production and other relevant factors matches were divided into four categories (a), (b), (c) and (d). Different rates of excise duty were imposed on different categories. The division was made not on the basis of technology of production but on the basis of output on a slab basis, higher the slab, higher being the rate of duty. The Tariff Commission found that large scale fragmentation of Band C class units has taken place as a result of the slab system motivated by the attraction offered by the large duty differential for the lower slab rate under category “C”. The Commission recommended the abolition of the said system of classification for the purpose of excise duty and suggested separate scales of excise duty to be levied on the four classes of units viz., (a), (b), (c) and (d). As a result of these recommendations, the slab system of excise duty was abandoned by the Government and the category wise rate was adopted. The result of adopting the scheme was a tendency for B Group manufacturers to splinter into "C" Group units with consequential reduction in total production. As a result of these recommendations, the slab system of excise duty was abandoned by the Government and the category wise rate was adopted. The result of adopting the scheme was a tendency for B Group manufacturers to splinter into "C" Group units with consequential reduction in total production. Attracted by Iowa rate of duty many 'B' Group manufacturers came into the 'C' Group and the genuine 'C' Group manufacturers were exploited by middlemen who enjoyed the margin of tax concession for themselves. In view of the situation which arose, the Government revised its fiscal policy and by the impugned notification divided matches into two categories, those manufactured ordinarily with the aid of power and those manufactured ordinarily without the aid of power. A duty of Rs 4.60p. per gross of boxes was levied on matches of the first category and Rs. 4.30 p. on those of the second category. By a proviso in the said notification, matches in the second category, the production of which did not exceed 75 million were to pay Rs. 3.75 p. per gross of boxes up to 75 million matches and the quantity of matches cleared in excess and up to 100 million matches were to pay at the rate of Rs. 4.30 per gross of boxes, and if clearances of such factory exceeded 100 million matches during the financial year, the manufacturer was to be required to pay at the rate of Rs. 4.30 per gross of boxes in respect of the entire quantity cleared during the financial year. Manufacturers of matches of category 'C' complained that to treat them equally for the purpose of imposition of excise duty with the manufacturers in category 'B' is to condemn them to gradual extinction. The effect of such a policy, they claimed was to treat unequals, as equals. The contention was raised on behalf of the State that the classification of manufacturers on the basis of the use of power for manufacture has a rational relation to the techniques of production and their ability to bear the burden of the levy. It was further submitted on behalf of the Government that the Government had given effect to the recommendation of the Tariff Commission regarding the fourfold classification. But finding certain evils developing under the system, the Central Excise and Reorganization Committee suggested methods to-re-orient the scale and scope of excise duty. It was further submitted on behalf of the Government that the Government had given effect to the recommendation of the Tariff Commission regarding the fourfold classification. But finding certain evils developing under the system, the Central Excise and Reorganization Committee suggested methods to-re-orient the scale and scope of excise duty. The Committee's Report led to the impugned notification. It was submitted that the distinction between mechanised and non-mechanised sectors proceeds on a rational differentia which has a substantial relation to the legislative object. 48. Krishna Iyer, J. speaking for the Court observed: “The Court is being invited to compel the legislative and executive wings to classify, but we feel that from the judicial inspection power the Court may only search for arbitrary and irrational classification and its obverse, namely, capricious uniformity of treatment where a crying dissimilarity exists in reality. Right at the threshold we must warn ourselves of the limitations of judicial power in this jurisdiction.........Unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review". In paragraph 15 of the Report the learned Judge observed: "certain principles which bear upon classification may be mentioned here. It is true that a State may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects. Every differentiation is not a discrimination. But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevant and artificial ones. The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured, has been repeatedly stated by the courts. If it rests on a difference which bears a fair and just relation to the object for which it is proposed, it is constitutional. To put it differently, the means must have nexus with the ends. Even so, a large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the court will be reluctant and perhaps ill-equipped to investigate. In this imperfect world perfection even in grouping is an ambition hardly ever accomplished......A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the judicature cannot rush in where even the legislature warily treads. In this imperfect world perfection even in grouping is an ambition hardly ever accomplished......A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the judicature cannot rush in where even the legislature warily treads. All these operational restraints on judicial power must weigh more emphatically where the subject is taxation. It is well established that the modern State, in exercise of its sovereign power of taxation, has to deal with complex factors relating to the objects to be taxed, the quantum to be levied, the conditions subject to which the levy has to be made, the social and economic policies which the tax is designed to sub-serve and what not. In the famous words of Holmes J., in Bain Peanut Co. v. Pinson (1930) 282 US 499, 501 ; 'We must remember that the machinery of Government would not work if it were not allowed a little play in its joints.' Absolute justice to every producer is a self-defeating adventure for any administration and general direction, not minute classification, is all that can be attempted." 49. On behalf of the petitioner reliance was placed on the decision of the supreme Court in (6) K. T. Moopil Nair v. State of Kerala, A.I.R 1961 S. C. 552. The Travancore Cochin Land Tax Act 1955 provided for levy in respect of lands in the State of a uniform rate of basic tax. Sec. 5A provided for provisional assessment of the basic tax payable by a person in respect of the land held by him which had not been surveyed by the Government and for liability of the assessee to pay the same provisionally assessed. Sec. 7 provided that the Act was not applicable to lands held or leased by the Government or any land or class of land which the Government might by notification in the Gazette exempt from the provisions of the Act. The Court observed "the Act could not have been characterised in more general terms and the proceedings under the Act could not have been more summary. It has thus the merit of brevity as also of simplicity derived from the fact that a tax is levied at a flat rate, irrespective of the quality of the land and consequently of its productive capacity. Under the Act, the charge has to be levied, whether or not any income has been derived from the land. It has thus the merit of brevity as also of simplicity derived from the fact that a tax is levied at a flat rate, irrespective of the quality of the land and consequently of its productive capacity. Under the Act, the charge has to be levied, whether or not any income has been derived from the land. The legislature was so much in earnest about levying and realising the tax that it could not wait for a regular survey of the land to be assessed with a view to determining the extent and character of the land. Sinha C. J. in course of his judgment said: "It cannot be disputed that if the Act infringes Art. 14 of the Constitution, it must be struck down as unconstitutional................... The guarantee of equal protection of the law must extend even to taxing statutes. It does not mean that every person should be taxed equally. But it does mean that if property of the same character has to be taxed, the taxing must be by the same standard, so that the burden of taxation may fall equally on all persons holding that kind and extent of property. If the taxation, generally speaking, imposes a similar burden on everyone with reference to that particular kind and extent of property on the same basis of taxation, the law shall not be open to attack on the ground of inequality even thought the result of taxation may be that the total burden on different persons may be unequal. Hence, if the Legislature has classified persons of properties into different categories, which are subjected to different rates of taxation with reference to income or property, such a classification would not be open to tile attack of inequality on the ground that the total burden resulting from such a classification is unequal. Similarly, different kinds of property may be subjected to different rates of taxation but so long as there is a rational basis for the classification, Art. 14 will not be in the way of such a classification resulting in unequal burdens on different class of properties. But if the same class of property similarly situated is subjected to an incidence of taxation which results in inequality, the law may be struck down as creating an inequality amongst holders of the same kind of property. But if the same class of property similarly situated is subjected to an incidence of taxation which results in inequality, the law may be struck down as creating an inequality amongst holders of the same kind of property. It must therefore be held that a taxing statute is not wholly" immune from attack on the ground that it infringes the equality clause in Art. 14, though the Courts are not concerned with the policy underlying a taxing statute or whether a particular tax could nut have been imposed in a different way or in a way that the Court might think more just and equitable". The Act was struck down as unconstitutional. Apart from being discriminatory and imposing unreasonable restriction on holding property, the Act was held to be clearly confiscatory in character and effect. The operative Sections viz., Sec. 4, 5A and 7 were held to offend against Art. 19 (1) (f) of the Constitution as well. In paragraph 8 of the report, Sinha C. J. said, 'it is clear therefore that inequality is writ large on the Act and is inherent in tile very provisions of the taxing section, It is also clear that there is no attempt at classification in the provisions of the Act. Hence, no more need be said as to what could have been the basis for a valid classification. It is one of those cases where the lack of classification creates inequality. It is, therefore, clearly hit by the prohibition to deny equality before the law contained in Art. 14 of the Constitution. Furthermore, Sec. 7 of the Act which vests the Government with the power wholly or partially to exempt any land from the provisions of the law, is clearly discriminatory in effect and therefore infringes Art. 14 of the Constitution. The Act does not lay down any principle or policy for the guidance of the exercise of the discretion by the Government in respect of the selection contemplated by Sec. 7". 50. The classification of tea gardens into five zones on the basis of traditional tea producing areas with adjustments in cases of individual tea estates justified by special circumstances can hardly be described as arbitrary. The unit is a tea producing area. The tea produced by the different zones have varying export potentials and varying capacity to bear the tax burden. The classification of tea gardens into five zones on the basis of traditional tea producing areas with adjustments in cases of individual tea estates justified by special circumstances can hardly be described as arbitrary. The unit is a tea producing area. The tea produced by the different zones have varying export potentials and varying capacity to bear the tax burden. The classification has a rational connection with the object of the taxing statute viz., to raise and collect revenue, to promote export, to afford relief to common tea and elsewhere where relief is wanted, to inhibit home consumption of quality tea and to achieve certain social and economic purposes. It must not be forgotten that the classification is not an end in itself but is made for the purpose of assessment of revenue. No doubt there are cases where a tea garden situate in a high grade tea producing area produces a low-grade tea and fetches a lower price than the produce of some other gardens in that zone. It does even happen that some gardens in a quality zone fetch lesser prices than the produce of some gardens in a zone producing a lower grade of tea. That is however an eventuality which cannot be avoided in making rational classification. The expression 'generally speaking' in the judgment of Sinha C.J. needs to be emphasised. By and large, particular types of tea producing areas which produce the same or similar variety of tea are sought to be taxed by the same standard. Even then, ... ... the total burden on the produce of different tea gardens in the same area may happen to be unequal. But that is no ground for striking down the classification as arbitrary or unreasonable. In (16) Moopil Nair's case no classification was made at all. All lands productive or unproductive were taxed equally. In the present case there is a classification on an intelligible basis having a rational relation to the object of legislation. In that context it must be held that the classification made by the Central Government under Rule 96F by the relevant Notifications has a rational relation to the object of the taxing statute. 51. Mr. Roy Chowdhury relied on a number of American cases and in particular on (17) Yakus v. USA. 88 Law Ed. In that context it must be held that the classification made by the Central Government under Rule 96F by the relevant Notifications has a rational relation to the object of the taxing statute. 51. Mr. Roy Chowdhury relied on a number of American cases and in particular on (17) Yakus v. USA. 88 Law Ed. 834 at P. 846 h. n. (1) (2), (5) at p. 848 h.n. (2) and at P. 847 h. n. (2). (18) Electric Power and Light Co. v. Security Exchange Commission 91 Law Ed. 103 h.n. (7), (8),(9) and (19) Pierre Grimand v. USA, 55 Law Ed. 563, paragraph 115-h.. n. (7), h. n. (9) paragraph 116 h. n. (11) and at P. 566 and 569. The principles for which he relied on those cases are: (i) in classification no meticulous adjustment is required and in fact it is impossible. (ii) If there is a rational classification, meticulous adjustment of a sub-class in a particular class is not called for in a broad-based legislation (iii) administrative convenience is a consideration (iv) certainty of collecting revenue is also a matter which has to be thought of. (v) the Court will not impose a classification which in its opinion, is a better one. (vi) the Courts have approached the question of classification from a practical point of view and not from the angle of the iron rule of equality. Mr. Deb relied on (19) State of Madhaya Pradesh v. Baldeo Prasad, A. I. R. 1961 S. C. 293 and (20) Harak Chand v. Union of India, A. I. R. 1970 S. C. 1453 as instances where the Court held that the statute did not give any guidance for the exercise of delegated power. Under Sec. 4 of the C. P. and Berar Goondas Act, the District Magistrate, if satisfied that there were reasonable grounds for believing that the presence, movement or acts of any goonda in the proclaimed area is prejudicial to the interest of the general public, could order him to report his movements or make an order to restrain his movements. In the Act, a 'goonda' was defined to mean a hooligan, rough, or vagabond and as including a person who is dangerous to public peace and tranquility. It was held that the definition of the word ‘goonda’ is Section 2 affords no assistance in deciding which citizen can be put under the category. In the Act, a 'goonda' was defined to mean a hooligan, rough, or vagabond and as including a person who is dangerous to public peace and tranquility. It was held that the definition of the word ‘goonda’ is Section 2 affords no assistance in deciding which citizen can be put under the category. The definition of a goonda was an inclusive definition and it did not indicate which tests have to be applied in deciding weather a person was a goonda or not. In paragraph 7 of the Report the learned Judge observed that it was clear that the primary condition precedent for taking action under Section 4 was that the person against whom action was proposed to be taken is a goonda, and it is in regard to this condition that thy section suffered from a serious infirmity. Gajendragadkar J" said in course of his judgment: "The definition of the word goonda affords no assistance in deciding which citizen can be put under that category. It is an inclusive definition and it does not indicate which tests have to be applied in deciding whether a person falls in the first part of the definition. Recourse to the dictionary meaning of the word would hardly be of any assistance in this matter. Further it must be borne in mind that the Act authorises the District Magistrate to deprive a citizen of his fundamental right under Art. 19(1) (d) and (e) and though the object of the Act and its purpose would undoubtedly attract the provisions of Art. 19 sub-section (5) care must always be taken in passing such Acts that they provide sufficient safeguards against casual, capricious or even a malicious exercise of the powers conferred by them". In striking down the statute, the Court was guided in the main, by the fact that no satisfactory definition of 'goonda' was to be found in the statute and no provision was made in the statute for giving the person an opportunity to satisfy the District Magistrate that he was not a 'goonda.' 52. In (21) Harak Chand v. Union of India, A. I. R. 1970 S. C. 1453 certain provisions of Gold (Control) Act 1968 were held to offend against Arts. 14 and 19 of the Constitution. In (21) Harak Chand v. Union of India, A. I. R. 1970 S. C. 1453 certain provisions of Gold (Control) Act 1968 were held to offend against Arts. 14 and 19 of the Constitution. Sec. 27 of the Act by which issue of license to dealers was governed provided as follows: "Provided that no license shall be issued or renewed under this section unless the Administrator, having regard to the following matters, is satisfied that the license should be issued or renewed, namely: (a) the number of dealers existing in the region in which the applicant intends to carryon business as a dealer, (b) the anticipated demand, as estimated by him, for ornaments in that region. (c) the turnover of the applicant, if he had been carrying on business as a dealer prior to the commencement of Part XIIA of the Defence of India Rules, 1962, during the two years immediately preceding such commencement, or, in the case of an application for the renewal of a license the date of the application for such renewal. (d) the previous experience, if any, of the applicant with regard to the making, manufacturing, preparing, repairing or polishing of, or dealing in, ornaments. (e) the suitability of the applicant, (f) the suitability of the premises where the applicant intends to carryon business as a dealer. (g) the public interests and (h) such other matters as may be prescribed. The Court found that the word 'region' in Clauses (a) & (b) was vague and had nowhere been defined in the statute. Likewise the expression 'anticipated demand' was vague and not capable of objective assessment. Similarly 'suitability of the applicant' in Clause (e) and 'public interest' in Clause (g) do not provide any objective standard or guidance. For these reasons it was held that Clauses (a), (b), (c) and (g) of Section 27 (6) imposed unreasonable restrictions on the fundamental right of the petitioners to carryon business and therefore those provisions were constitutionally invalid. In that case it was said that when a law is challenged as violative of Art. 14 it is necessary, in the first place, to ascertain the policy underlying the statute and the object intended to be achieved by it. In that case it was said that when a law is challenged as violative of Art. 14 it is necessary, in the first place, to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the object and the policy of the Act, the Court has to apply a duel test in examining its validity, the tests being whether (a) the classification is rational and based upon an intelligible differentia which distinguish persons or things that are grouped together from others that are left out of the group and (b) whether the basis of differentiation has any rational nexus or relation with the policy and object of the Act. 53. I have accepted the argument that the expression 'area' in Rule 96F means a tea producing area producing mainly a recognised variety of tea. Distinct divisions can be and have been constituted by grouping those units broadly on the basis of weighted average sale price of their produce as also other relevant factors. In the gold case, the scheme of the Gold Control Act was so vague that it was found to be unworkable. There, the term 'region' and in the goonda case the word 'goonda' were not defined ; nor could their meanings be determined by importing matters of common knowledge. In Rule 96F, the word 'area' is readily understood to be a traditional tea producing area. It cannot be said that no effect can be given to Rule 96F or to the levy of different rates of duty which have been prescribed for the produce of different zones. In fact, the scheme has been successfully applied since 1958. That is of course, not to say that there is no scope for improvement or that no better classification can be made. Rule 96F itself contemplates revision of the classification from time to time. Be that as it may, under the Rule the Central Government is not obliged to revise the classification though it is to be expected, that in the best interest of the revenue, the assesses and the exigencies of situations obtaining from time to time such revision will, be made. 54. Be that as it may, under the Rule the Central Government is not obliged to revise the classification though it is to be expected, that in the best interest of the revenue, the assesses and the exigencies of situations obtaining from time to time such revision will, be made. 54. In (22) D. Rama Raju v. State of Andhra Pradesh, AIR 1972, SC 828 some of the provisions of the Andhra Pradesh Drainage Cess Act were challenged on the ground that they were arbitrary and ran counter to the principle of equality. In order to raise funds for construction of works, to prevent inundation of the Godavari delta by floods, the delta was divided into a number of divisions and varying rates of cess were prescribed on holdings in different divisions. It was contended that only 7% of the land in the delta was affected by the floods and yet all the land holders in the delta were made to share the costs Moreover the difference in the rates of cess in different divisions was also challenged on the ground that the scheme offended against the principle of equality before the law. Khanna J. delivering the judgment of the Court said "it is urged that a flat and uniform rate for all lands in a division results in inequality and is violative of Art. 14. In this connection, we find that the material on record, to which reference has been made earlier, shows that the rate of cess prescribed for each division has a rational nexus with the object of the Act and is based on intelligible differentia. The object of the Act is to raise funds for the implementation of a scheme to secure protection of the land in the delta area from ravages of the floods. As the Act is designed to benefit the land in the divisions of the delta area, the levy of cess at uniform rate for each acre of the land in a division cannot be considered to offend against the principle of equality. The floods strike equally all lands in the area and make no discrimination so far as the quality and production capacity of those lands are concerned. The floods strike equally all lands in the area and make no discrimination so far as the quality and production capacity of those lands are concerned. In the circumstances, it appears to be just and reasonable that each acre in a division could bear equal burden of the amount which is sought to be raised to fight the danger of floods and provide for an efficient system of drainage. Further, as the cost of drainage scheme varies in the different divisions, the rate of cess has been fixed at different rates in the division keeping in view the cost of drainage scheme in each division. The differential in the cost of drainage scheme for the four divisions, in our opinion, has been deliberately reflected in the varying rates of cess for each division. As regards the argument that not all the lands are affected by floods the Court said that floods are unpredictable and their depredations vary from year to year. As regards the arguments that on account of topographical situation some land-owners get greater benefit of the drainage scheme because of their land being more prone to damage by floods is a fortuitous circumstance and the same would not be a valid ground for striking down the impugned legislation.........There is one integrated drainage scheme for the divisions in which the appellants' lands are situated and the appellants in our opinion, are the beneficiaries of that scheme in the same way as the other land owners in that division...... It is well established that if there is equality and uniformity within each group, the Taw will not be condemned as discriminative though due to some fortuitous circumstances arising out of a peculiar situation, some included in a class get an advantage over others so long as they are not singled out for special treatment:' In paragraph 21 of the judgment the learned Judge pointed out: "The State is given a wide range of choice for the purpose of taxation. It is axiomatic that different situations can for different fiscal measures. The State is presumed to know the requirements of the situation and act accordingly. No rigidity being possible, it is difficult to apply any set formula. Much greater latitude and discretion, therefore, is to be allowed to the State for the purpose of taxation in the context of Art. 14 of the Constitution. 55. The State is presumed to know the requirements of the situation and act accordingly. No rigidity being possible, it is difficult to apply any set formula. Much greater latitude and discretion, therefore, is to be allowed to the State for the purpose of taxation in the context of Art. 14 of the Constitution. 55. It was contended that the Notification of May 1, 1970 is expropriatory in character or in other words, it is calculated to tax the petitioners' tea estate out of existence. In (16) Moopil Nair's case the petitioner satisfied the Court on the basis of facts and figures, that the only reasonable course left open to the owner was to get rid of the property. A forest yielding an income of Rs. 3,100/. per year was made liable to pay a tax of Rs. 50,000/- a year under the statute without making any deduction for expenses of management. In the present case there is no evidence at all from which it can be inferred that the rate of duty imposed by the Notification is more than that the goods can bear. In no case the prescribed maximum of Rs. 2/- per Kg. has been reached. The ceiling of Rs. 2/- has not been proved to be unreasonably high. No balance sheet or profit and loss account has been placed before the Court in support of the contention that it has become uneconomic for the petitioners to carryon business. 56. To sum up: Rule 96F of the Central Excise Rules has been properly and validly made under Section 37 of the Act to carry into effect the to purposes of the Act. It has been published in the Official Gazette and laid before Parliament in compliance with Section 38 of the Act. The Rule, therefore, has effect, as if it has been enacted in the Act. The Rule confers power on the Central Government to group areas into Zones having regard to he weighted average sale price of tea realised in the auctions for the purpose of assessment. In the context of the Rule, areas must be construed to mean traditional tea producing areas producing, by and large, tea of different varieties or in other words, tea of different qualities or having different characteristics. 57. In the context of the Rule, areas must be construed to mean traditional tea producing areas producing, by and large, tea of different varieties or in other words, tea of different qualities or having different characteristics. 57. The Court will take judicial notice of the fact, which is also supported by affidavit evidence, that the tea producing areas naturally and traditionally, and from times immemorial, fall into well known divisions, as for example, areas producing common tea, high grown tea of the Darjeeling and Nilgiri varieties, the quality tea of the Upper Assam variety, and tea of an intermediate quality which shades off into common tea on one extreme and quality tea on the other. It is true that tea of a superior as well as of an inferior quality realising prices varying within a wide range may be produced by different gardens situate within a common tea producing area. Some gardens in a quality area may produce tea of inferior quality and vice versa but that does not detract from the realities of the situation, namely, that these tea producing areas, by the general character of their produce, are distinct entities. 58. It is idle to contend that the Rule is vague or that no guidance is to be found in the Rule for rational classification. The rationale of classification is to be found in the existence of determinate tea-producing areas producing, in the main, specific types of tea, be those areas large or small, and correspond as they might to an administrative district or a sub-division or even a single garden. 59. In grouping areas into zones for the purpose of levy and assessment at varying rates, the Central Government have a duty under the Rule to have regard to the weighted average sale price realised by the tea producing areas, that is to say, all the tea gardens in those areas but that does not mean that no other factor can or need be taken into consideration in making the classification. Administrative convenience, for example, is a consideration. 60. A tea garden in a quality area may produce tea of inferior quality because of bad husbandry and realise a lesser price than others. It may also be due to accidental and passing factors. Prices fluctuate and qualities vary from time to time. Administrative convenience, for example, is a consideration. 60. A tea garden in a quality area may produce tea of inferior quality because of bad husbandry and realise a lesser price than others. It may also be due to accidental and passing factors. Prices fluctuate and qualities vary from time to time. It is not reasonable to hold that the price factor alone should be taken into consideration in constituting zones. 61. The weighted average sale price spoken of in Rule 96F is the weighted average sale price of an entire tea producing area not of, individual tea gardens. If as a result of grouping of areas into zones some gardens are placed at an advantage or a disadvantage, that must be held to be a fortuitous circumstance which cannot detract from the propriety and validity of the classification made under the Rule. In any classification, some anomalies are inevitable but the classification cannot be struck down on the score of fortuitous discrepancies. Those discrepancies notwithstanding, it must be held that Rule 96F lays down a policy and a determinable basis for the constitution of zones. On a careful consideration of the relevant provisions of the Central Excises and Salt Act and the Rules made thereunder, their aims and objects and the context in which they have been enacted or made, I am of opinion that neither Rule 96F nor the relevant notifications offend against Art. 14 or 19 of the Constitution. No separate or specific arguments have been advanced on the contention that Rule 96F or the notifications are violative of Art. 31 of the Constitution. Having regard to the principles which in, my opinion are applicable in deciding the question of vires of the Rule and the notifications, and the precedents 10 which reference has been made, I do not see how it can be said that Rule 96F or the notifications infringe Art. 31 of the Constitution. 62. It was contended that Section 3 of the Central Excises and Salt Act read with item 3, sub-item (i) of the First Schedule suffers from the vice of excessive delegation. No guidance, it was claimed, has been given to the delegate, that is to say, the Central Government, as to how the rates of duty are to be fixed in respect of different varieties of tea, assuming that power has been conferred to impose duties at different rates. No guidance, it was claimed, has been given to the delegate, that is to say, the Central Government, as to how the rates of duty are to be fixed in respect of different varieties of tea, assuming that power has been conferred to impose duties at different rates. Without such guidance, it was submitted, the exercise of power by the Central Government is arbitrary. In the case of (23) Delhi Municipality v. Delhi Cloth Mills, A. I. R. 1968 S. C. 1232, it was held that what guidance should be given and to what extent, and whether guidance has been given in the particular case at all, depend on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble. It was further said that the power conferred on the Corporation by Sec. 150 of the Act to levy any of the optional taxes by prescribing rates of tax to be levied, to fix class of persons or description of articles to be taxed and to lay down the system of assessment and exemption, if any, to be granted was not unguided and it could not be said to amount to excessive delegation. In paragraph 8 of the judgment, Wanchoo and Shelat JJ. held that the nature and body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. In the field of taxation the guidance may take the form of providing maximum rates of tax. In paragraph 48 of the judgment Hidayatullah, J. said: "We do not wish to be understood as saying that the conferral of a power of taxation on Municipalities must always be accompanied by a detailed enumeration in the constituent Act of the rate of the tax, the person to be taxed, the manner of the levy and collection before it can be said that there are sufficient safeguards. Nor do we think that these matters cannot be left to the determination of the Municipal Corporation subject of course to such controls as the Legislature may think necessary to effectuate its own will...... The proper test to apply is not the existence of safeguards but whether the legislative will to impose the tax is adequately expressed so as to bind those who have to pay the tax. The proper test to apply is not the existence of safeguards but whether the legislative will to impose the tax is adequately expressed so as to bind those who have to pay the tax. This requires an examination of the policy and provisions of the Act with a view to determining whether the legislative will is fully expressed to invest the Municipal Committee with the power to levy tax, subject of course, to the proper procedure being evolved. 63. In (24) Orient Weaving Mills Ltd. v. Union of India, A. I. R. 1963 S. C. 98, the Supreme Court observed: "The Central Excises and Salt Act recognises and only gives effect to the well established principle that there must be a great deal of flexibility in the incidence of taxation of a particular kind. It must vary from time to time, as also in respect of goods produced by different processes and different agencies. It is a function of the State in order to raise revenue for the said purposes, to determine what kind of taxes shall be levied and in what manner. 64. In (13) Twyford Tea Co. v. Kerala State, A. I. R. 1970 S. C. 1133 a majority of Judges expressed the view that there is a wide range of selection and freedom in appraisal not only in the objects of taxation and the manner of taxation but also in the determination of the rate or rates applicable. Speaking for the majority, Hidayatullah C. J. observed: "It was said that yield of tea varies from estate to estate. It is hardly necessary to refer to the findings of the Tea Board because it may be assumed without discussion that there are differences. It may be conceded that the uniform tax falls more heavily on some plantations than on others because the profits are widely discrepant. But does that involve discrimination? If the answer be in the affirmative hardly any tax direct or indirect would escape the same censure for taxes touch, purses of different lengths and the very uniformity of the tax and its equal treatment would become its undoing. The rich and the poor pay the same taxes irrespective of their incomes in many instances such as the sales tax and the professional tax etc. The rich and the poor pay the same taxes irrespective of their incomes in many instances such as the sales tax and the professional tax etc. Later in his judgment, the learned Chief Justice relied on “East India Tobacco Company v. State of Andhra Pradesh, A. I. R. 1962 S. C. 1733 and particularly on the observations made by the Court at page 1735 of the Report approving the dictum of the Supreme Court of the United States in Madden v. Kentucky, U. S. 84 Law Ed. 590. "In taxation even more than in other fields, Legislatures possess the greatest freedom in classification. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it": 65. As Rottschaefer said in his Constitutional Law at p.668 :- 'A statute providing for the assessment of one type of intangible at its actual value while other intangibles are assessed at their face value does not deny equal protection even when both are subject to the same rate of tax'. The decisions of the Supreme Court in this field have permitted a State Legislature to exercise an extremely wide discretion in classifying property for tax purposes so long as it refrained from clear and hostile discrimination against particular persons or classes ".................." The burden is on a person complaining of discrimination. The burden is proving not possible 'inequality' but hostile 'unequal' treatment. This is more so when uniform taxes are levied. It is not proved to us how the different plantations can be said to be 'hostilely or unequally' treated. A uniform wheel tax on cars does not take into account the value of the car, the mileage it runs, or in the case of taxis, the profits it makes and the miles per gallon it delivers. An Ambassador taxi and a Fiat taxi give different outturns in terms of money and mileage. Cinemas pay the same show fee. We do not take a doctrinaire view of equality. The legislature has obviously thought of equalising the tax through a method which is inherent in the tax scheme. Nothing has been said to show that there is inequality much less 'hostile treatment', All that is said is that the State must demonstrate equality. That is not the approach. At this rate nothing can ever be proved to be equal to another" 66. Nothing has been said to show that there is inequality much less 'hostile treatment', All that is said is that the State must demonstrate equality. That is not the approach. At this rate nothing can ever be proved to be equal to another" 66. In (25) State of Madhya Pradesh v. Pandit Benarasi Das, A.I.R. 1958 S. C. 909, it was said "the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods and the like". 67. In (26) Corporation of Calcutta v. Liberty Cinema, A. I. R. 1965 S. C. 1107, it was held that the fixing of a rate of tax is not of the essence of legislative power, that the fixing of rates might be left to a non-legislative body and that it is so left to such a body. The legislature should provide for guidance for such fixation. The majority of Judges held in that case that such a guidance was to be found in the monetary needs of the municipality in discharging the functions entrusted to it under the Act. 68. In (27) S. B. Dayal v. State of U. P., A. I. R. 1972 S. C. 1168, it was held that a provision in the U. P. Sales-Tax Act by which the choice of rate was left to the State Government subject to a maximum of 2 paise in the rupee in the case of foodgrains and 5 paise in the case of other goods, was valid. 69. In (28) Vasantlal Maganbhai v. State of Bombay, A. I. R. 1961 S. C. 4, a notification under the Bombay Tenancy and Agricultural lands Act of 1948 by which maximum rent on irrigated and non-irrigated land was prescribed was held to be valid. The Court found that the fixation of agricultural rent depends upon so many uncertain factors which may vary from time to time and place to place that it would be idle to contend that the legislature wanted to fix the maximum rent only once or twice. The Court found that the fixation of agricultural rent depends upon so many uncertain factors which may vary from time to time and place to place that it would be idle to contend that the legislature wanted to fix the maximum rent only once or twice. There, by Section sub-section (2) of the Act, a maximum rate of rent was prescribed by the legislature but the legislature left it to the Government to fix a lower rate and the maximum rate payable in a particular area or to fix such rate on any other suitable basis as it thought fit. 70. In the (23) Delhi Municipality v. B.C.S. & W. Mills, A.I.R. 1968 S.C. 1232, Hidayatullah J. said "nor can it be said that an aggregate of all of them must clearly appear from the impugned statute because if they do there will be no need for the agent. The agent is then only an executing authority and not acting in aid of the legislature which is the underlying principle on which delegated legislation is upheld." Elsewhere in his judgment the learned Judge said: "our Constitution no doubt divides the functions of the State between three organs of the Government but it does not make a clean-cut division of the functions of these three organs as do some other Constitutions". "Take any statute and it will be found that quite a lot of things are left to be done by some other instrumentality. The rule-making power, 'the appointed day' clauses, the provisions for extending the Act, for granting exemptions and so on and so forth are to be met with everywhere" 71. Reference was made to the cases of (30) Debi Das v. State of Punjab, AIR 1967 S.C. 1895 and (31) State of Punjab v. Sansari Mal, A. I. R. 1968 S. C. 331. By Sec. 5 Sub-section 1 of the Punjab Sales Tax Act, as it originally stood power was conferred on the State Government to levy a tax at such rates as the Government might by notification direct. In 1952, Sec. 5(i) was amended by insertion of the words "not exceeding 2 paise in the rupee. Sec. 5(i) as it originally stood was held to be void on the ground of excessive delegation of legislative power to the State Government. In 1952, Sec. 5(i) was amended by insertion of the words "not exceeding 2 paise in the rupee. Sec. 5(i) as it originally stood was held to be void on the ground of excessive delegation of legislative power to the State Government. The Court held that under that Section the State Legislature practically effaced itself in the matter of fixation of rates and it did not give any guidance either under that Section or under any other provisions of the Act. 72. The Court however found that sub-section (i) of Sec. 5 as amended by the Act of 1952 was not invalid. In the case of (30) Devi Das v. State of Punjab. Subba Rao, C. J. said: It was contended that Sec. 5, as amended, only gave the maximum rate and did not disclose any policy giving guidance for fixing any rate within that maximum. Conferment of reasonable area of discretion by a fiscal statute has been approved by this Court in more than one decision. At the same time a larger statutory discretion placing a wide gap between the minimum and maximum rates and thus enabling the Government to fix an arbitrary rate may not be sustained. In the ultimate analysis, the permissible discretion depends upon the facts of each case. The discretion to fix the rate between 1 pice and 2 pice in a rupee is so insignificant that it is not possible to hold that it exceeds the permissible limits. Counsel for the petitioners contended that although Sec. 3 by itself may be valid as a charging Section, item (3) Sub-item (i) of the First Schedule is invalid on the ground of excessive delegation of legislative power. There is no valid provision in the item for fixing or authorising the fixing of the rate at which the tax is to be levied. Counsel relied on the following observations made with reference to the Punjab Sales Tax Act, in (31) State of Punjab vs. Sansari Mal : "In the absence of such a provision there could be no levy, assessment and collection of the tax from the dealer and sec. 4 remained unenforceable". Likewise, it Was contended sec. 3 remains unenforceable in its application to tea covered by Item 3 Sub-Item 1 of the Schedule. 73. 4 remained unenforceable". Likewise, it Was contended sec. 3 remains unenforceable in its application to tea covered by Item 3 Sub-Item 1 of the Schedule. 73. In the light of the observations made in (23) Delhi Municipality, v. Delhi Cloth Mills, to which reference has been made, the fact that the delegate in the present case, is the Central Government, a responsible body, is a factor to be taken into consideration in deciding whether there is sufficient guidance in delegation. The fact that the maximum rate of duty has been prescribed in the Act itself offers some guidance. It cannot be said, as was sought to, be argued, that the maximum limit fixed by the statute is too high. There is no evidence of that. In any event, the rate of Rs.2/- per K. G. is not too high, having regard to the level of prices, the position with regard to demand and supply, and the fact that large quantities of tea are intended for export. The needs of revenue is another factor which has to be taken into consideration. 74. The power conferred on the Central Government by item 3, Sub-item (1) of the Schedule to prescribe rates at which excise duty is leviable under Section 3 of the Act is not arbitrary or unguided. Guidance has been given and necessary safeguards have been provided in the sub-item itself under which a limit has been prescribed; guidance will also be found in the objects of the statute, namely the exegencies of revenue, the social and economic purposes which fiscal legislation is intended to serve, promotion, of export as also the interest of the consumer at home, the varying needs to encourage or discourage consumption of certain varieties of tea and also in the fact that the delegation of power has been made in favour of the Central Government, a responsible body which is presumed to exercise the power in consultation with the Tea Board and having regard to representations made on behalf of the trade. It is not correct to maintain that the legislature, by leaving it to the Central Government to fix the rate of duty subject to a prescribed limit, renounced its essential legislative function. 75. It is not correct to maintain that the legislature, by leaving it to the Central Government to fix the rate of duty subject to a prescribed limit, renounced its essential legislative function. 75. Moreover, having regard to the limit to the rate prescribed by the sub-item and in the absence of evidence that the rates prescribed by the relevant notifications are likely to tax the tea estates out of existence, it must be held that the notifications made under sub-item (i) item 3 of the First Schedule to the Central Excise and Salt Act and Rule 96F of Central Excise Rules do not offend against Art. 14 or 19 of the Constitution. 76. In this case as also, in other cases where the a gardens are situate in Assam it has been contended on behalf of the respondents that this Court has no jurisdiction to entertain the application. In the present application the respondents are the Collector of Customs and Central Excise, Shillong, Superintendent of Central Excise having his office at Tezpore, Inspector, Central Excise having his office in Assam, Union of India through the Secretary. Ministry of Finance, New Delhi and again Union of India, through the Collector of Customs and Central Excise, Shillong. All the respondents have their offices situate outside the jurisdiction of this Court. It is not in dispute that if the court has jurisdiction at all to entertain the application it can have jurisdiction only under Art. 226 (IA) which provides: "(IA) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within t hose territories". 77. The question is, does any part of the cause of action arise within the jurisdiction of this Court. The petitioners have sought to attract jurisdiction by the averment that the impugned notifications by which the Central Government have constituted the zones and imposed excise duty, are published and circulated within the jurisdiction of this Court. 77. The question is, does any part of the cause of action arise within the jurisdiction of this Court. The petitioners have sought to attract jurisdiction by the averment that the impugned notifications by which the Central Government have constituted the zones and imposed excise duty, are published and circulated within the jurisdiction of this Court. Further the effect of the formation of these zones and fixation of rates has fallen on the petitioners at Calcutta within the jurisdiction of this Court where the petitioners have their places of business. It is also said that the refund of excise duties paid by the petitioners is due at Calcutta within the jurisdiction of this Court. 78. Apart from these averments, jurisdiction is sought to be founded on the fact that some of the petitioners which own gardens in Assam have their Registered Offices and some have their places of business in Calcutta. It is contended that the effect of the notifications is felt at the petitioners registered offices and places of business in Calcutta. In some cases the Collector of Central Excise, West Bengal, who has his office at 15/1, Strand Road, Calcutta has been made a party, though it is difficult to see what the Collector of Central Excise, West Bengal, has to do with the subject matter of these applications. It was argued that the average sale prices as contemplated in the relevant notifications are calculated on the basis of prices fetched at the auctions held at Calcutta within the jurisdiction of this Court and as in the contemplation of Rule 96F, the weighted average sale price is a factor if not the only factor on the basis of which zones have been formed and rates of excise duties have been fixed on the basis of zones, the holding of auctions is a part of the cause of action. It was also urged that for the purpose of making payment of excise duty the petitioners in many of these cases deposit moneys in the Reserve Bank of India, at its Calcutta office. Deposit of moneys is claimed to be a part of the cause of action. Moreover it is argued that the refund of excise duty, if payable, must be made to the petitioners at their Registered Offices or at their places of business in Calcutta as the case may be. Deposit of moneys is claimed to be a part of the cause of action. Moreover it is argued that the refund of excise duty, if payable, must be made to the petitioners at their Registered Offices or at their places of business in Calcutta as the case may be. On the principle that in the absence of a contract as regards the place of payment the debtor must seek the creditor, it is contended that the place where the debtors reside is the place for payment of the debt. 79. The Official Gazette in which the impugned notification appeared was published in Delhi and not in Calcutta. The term 'publish' is used in more senses than one. In a particular context, it mayor may not imply circulation. What is necessary here is to decide not the precise meaning of the word 'publish' but whether circulation of the official gazette within the territorial jurisdiction of the Court attracts jurisdiction of the Court or in other words whether circulation of the official gazette is a part of the cause of action. I am unable to hold that circulation of a notification in an official gazette by itself is a part of the cause of action. The notifications published in the official gazette if valid will be binding on the petitioners even if they are not circulated in the State where the petitioners have moved the High Court for a Writ. If however the notifications are not published at all in the official gazette they will not be binding on the petitioners. Therefore, in my judgment, a distinction bas to be made in the present context between publication and circulation. It is not permissible in my opinion, to draw sustenance from the principles of jurisdiction in libel cases. They stand on a different footing. In the law of libel each publication is a separate cause of action. Publication in the context of libel and in the present context are different things. In the present context, circulation does not add to the efficacy of the publication. It is therefore no part of the cause of action. 80. The argument that the effect of the imposition of duty on the basis of the notifications is felt by the petitioners at their registered offices or at their places of business in Calcutta, and therefore, part of the cause of action arises in Calcutta is hardly tenable. It is therefore no part of the cause of action. 80. The argument that the effect of the imposition of duty on the basis of the notifications is felt by the petitioners at their registered offices or at their places of business in Calcutta, and therefore, part of the cause of action arises in Calcutta is hardly tenable. The notifications no doubt affect the petitioners at alt their places of business wherever those places may lie. The effect is of course felt by the business of the petitioners as a whole. The petitioners have their places of business in Calcutta as also in Assam. They may even have offices in foreign countries. If that argument is to be accepted foreign courts will have jurisdiction to entertain proceedings for reliefs claimed in these applications. The effect felt at a place of business of the petitioners, by reason of imposition of duty levied on the petitioners' tea, is far too remote and incidental to constitute a part of the cause of action. It is not stated in the petition that any part of the cause of action arose at the Registered Offices or the places of business of the petitioners in Calcutta, not that such a statement would have made any difference to the situation. 81. It was submitted that payment of excise duty or at least a very large portion of it is made by the petitioners to the Reserve Bank of India, at Calcutta and the refund is liable to be made by the respondents at Calcutta within the jurisdiction of this Court. Rule 9 of the Central Excise Rules provides that “no exciseable goods shall be removed from any place where they are produced, cured or manufactured until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require". Rule 9 of the Central Excise Rules provides that “no exciseable goods shall be removed from any place where they are produced, cured or manufactured until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require". The second proviso in the said Rule reads as follows: "Provided also that the Collector may, if he thinks fit instead of requiring payment of duty in respect of each separate consignment of goods removed from the place or premises specified in this behalf, or from a store room or ware-house duly approved, appointed or licensed by him keep with any person dealing in such goods an account-current of the duties payable thereon and such account shall be settled at interval not exceeding one month and the account-holder shall periodically make deposit therein sufficient in the opinion of the Collector to cover the duty due on the goods intended to be removed from the place of production, curing manufacture or storage". 82. It is not in dispute that an account-current was maintained in Assam by the petitioners as also by the other petitioners who have gardens in Assam for payment of excise duty. It is also not in dispute that excise duty payable on the produce of tea gardens in Assam have to be paid in Assam. 83. Rule 52 provides that a manufacturer desirous of removing goods on payment of duty shall make an application to the proper officer in proper Form and shall deliver it to the officer. The officer shall, thereupon, assess the amount of duty due on the goods and on production of evidence that this sum has been paid into the Treasury or paid to the account of the Collector in the Reserve Bank of India or the State Bank of India, or has been despatched to the Treasury by money-order shall allow the goods to be cleared. 84. The application for removal of exciseable goods on payment of duty has to be made in Form AIR. It will appear from a perusal of the form that moneys have to be deposited in accordance with the tenor of the entries made in the form for payment of excise duty through current account or by money-order. 85. 84. The application for removal of exciseable goods on payment of duty has to be made in Form AIR. It will appear from a perusal of the form that moneys have to be deposited in accordance with the tenor of the entries made in the form for payment of excise duty through current account or by money-order. 85. The procedure adopted by the petitioners as also by the petitioners in other applications appears to have been as follows :- A plantation Company or planters having their tea gardens in Assam have their registered office or a place of business in Calcutta. They deposit moneys with the Reserve Bank of India, Calcutta, from time to time for the purpose of payment of excise duty on the produce of their gardens. On In deposits being made, challans are issued by the Reserve Bank in respect of the deposits. On production of these challans the planters' current-accounts in Assam are credited with the sums specified in the challans. The current-account maintained in Assam are debited from time to time in respect of excise duties levied by the Excise Officer and liability to pay excise duty is thereby discharged. 86. Mr. Deb contended that having regard to the fact that under the Rules the sum payable on account of excise duty may be paid into the account of the Collector in Reserve Bank of India, payments made by the petitioners in the Reserve Bank of India, Calcutta attracts jurisdiction of this Court. It is necessary to point out that under the Rules payment may be made into the Treasury or paid to the account of the Collector in the State Bank of India or into the Reserve Bank of India. 87. Mr. Subrata Roy Chowdhury appearing on behalf of the respondents contended that the deposit of moneys with the Reserve Bank of India, Calcutta, is merely a deposit made by the assessee and not payment of the duty assessed. It is only after the moneys have been appropriated by the Collector on account of excise duty that payment may be said to have been made. Appropriation takes place at Assam by the Collector by debiting the current account maintained by the assessee in Assam. In fact the moneys deposited with the Reserve Bank of India, Calcutta, are not appropriated by the Collector on production of challans given by the Reserve Bank for the deposits. Appropriation takes place at Assam by the Collector by debiting the current account maintained by the assessee in Assam. In fact the moneys deposited with the Reserve Bank of India, Calcutta, are not appropriated by the Collector on production of challans given by the Reserve Bank for the deposits. The deposits under the challans are credited to the assesses account in Assam out of which appropriation takes place. Mr. Roy Chowdhury heavily relied on a decision of the Allahabad High Court in (32) Union of India v. Bhagwan Industries Ltd., AIR 1957 Allahabad 799. There it was said : "there is a clear distinction between amount appropriated towards duty and amount deposited for payment of export duty. In the former case, duty which has actually been levied and paid evidently becomes the property of the Government and no person would be entitled to get it back unless there is a provision of law to enable that person to get the duty already appropriated, back from the State or the Government. In the latter case, however, when an amount has been deposited to be appropriated thereafter towards export duty which may fall due, there having been no appropriation the property in the money does not pass to the Government unless export takes place and the duty is levied. On the basis of the principle expressed in that passage in the judgment, Mr. Roy Chowdhury submitted that if payment of duty is a part of the cause of action, the cause of action does not arise within the jurisdiction of this court because the appropriation and therefore payment of excise duty takes place in Assam and not here. It a seems to me that he is right in his contention. 88. On the question whether the refund is liable to be made at Calcutta either on the basis that payment was made in Calcutta In Reserve Bank or on the principle that the debtor must pay the debt at the creditor's place of residence or business, Mr. Roy Chowdhury submitted that as payment is not made in Calcutta but in Assam where appropriation takes place no application for refund is maintainable in Calcutta. On the question of applicability of the other principle that the Union of India must make payment at the petitioners' place of business in Calcutta the petitioner being the creditor and the Union of India the debtor Mr. On the question of applicability of the other principle that the Union of India must make payment at the petitioners' place of business in Calcutta the petitioner being the creditor and the Union of India the debtor Mr. Deb relied on a Bench decision of this Court in (33) State of Punjab v. A. K. Raha, AIR 1964 Cal. 418 where Bachawat. J. speaking for the court observed: “The general Rule is that where no place of payment is specified in the contract either expressly or impliedly, the debtor must seek the creditor. The application to pay the debt involves the obligation to find the creditor and to pay him at the place where he is and where the money is payable". The learned Judge was careful to observe however that the place of payment may sometimes be fixed by necessary implication from the nature and the terms of the contract and the surrounding circumstances. 89. I entertain grave doubts whether the technical principle of English Law that the debtor must seek the creditor has any application in a case of this kind. It seems to me that the principle can have application only when the debt is contractual. Be that as it may, it is not necessary for me to decide the question for reasons which I shall presently indicate. Rule 11 provides that no duties or charges which have been paid or have been adjusted in an account current maintained with the Collector under Rule 9 and of which repayment wholly or in part is claimed in consequence of the same having been paid, by inadvertance, error or misconstruction shall be refunded unless the claimant makes an application for such refund under his signature and lodges it with the proper officer within three months from the date of such payment or adjustment, as the case may be. If Rule 11 is applicable in the present ease, it scems to me that by necessary implication the refund is liable to be made in Assam. It will have to be made in Assam because the application for refund has to be lodged with the proper officer in Assam, the excise duties having been paid or adjusted in the account of the petitioners maintained with the Collector in Assam. It will have to be made in Assam because the application for refund has to be lodged with the proper officer in Assam, the excise duties having been paid or adjusted in the account of the petitioners maintained with the Collector in Assam. Therefore, the principle that the creditor must seek the debtor and pay the debt at the place where the creditor resides, will have no application. In this context Mr. Roy Chowdhury relied on a decision of the Supreme Court in (34) State of Bihar v. Oriental Coal Co., AIR 1972 SC 378 . There a suit was filed in the Calcutta High Court on the Original Side for refund of sales-tax paid by the plaintiff to the State of Bihar which was held to be not payable. On the question whether any part of the cause of action arose within the jurisdiction of the Original Side of the High Court, the learned trial Judge came to the conclusion that the part of the cause of action for the suit did arise in Calcutta, on the ground, amongst others that the State of Bihar must be held to be the debtor and the plaintiff its creditor and hence it is the duty of the debtor to find his creditor and pay the debt due to the creditor at Calcutta. On appeal, a Division Bench of the High Court held that the doctrine that the debtor must find his creditor and pay the debt did not apply in the facts and circumstances of the case because under the relevant Rules framed under the Bihar Sales-Tax Act under which the refund was claimed, refund could only be made inside Bihar. On appeal the Supreme Court held that in view of the Rules 14 to 43 of the Bihar Sales- fax Rules, 1949 an application for refund could have been made only before the Commissioner whose office is situate in Bihar and the refund could have been made only in accordance with the Rules. Under the Rules the amount to be refunded could be paid to a dealer only through a Government treasury. Hence the entire cause of action in respect of the claim for refund on the basis of the order setting aside the assessment, arose only within the State of Bihar and no part of that cause of action aorse outside Bihar. 90. Mr. Hence the entire cause of action in respect of the claim for refund on the basis of the order setting aside the assessment, arose only within the State of Bihar and no part of that cause of action aorse outside Bihar. 90. Mr. Deb relied on a decision of a Division Bench of the Patna High Court in (35) Ambica Saran v. Election Commissioner. AIR 1972 Pat 332 . In that case, pursuant to the judgment of the Supreme Court, the Election Commissioner issued a letter to the effect that petitioner had incurred disqualifications for being chosen as member of either House of Parliament or of the Legislative Councilor Legislative Assembly of a State and voting at any election for a period of six years from the date of the Supreme Court judgment. An application was made under Article 226 of the Constitution for an order directing withdrawal of the said letter. It was held that the court had jurisdiction to entertain the application on the grounds that the petitioner had contested the election in the State of Bihar, where he incurred the disqualification, the proceedings which constituted the basis of the letter were recorded in Patna by the Patna High Court, the letter was issued to the Electoral Officer of the State of Bihar and the petitioner's name had been expunged from the electoral roll of a constituency of the State of Bihar. The Court therefore found that a part of the cause of action arose in the State. 91. It is difficult to see, how this case is of any assistance to the petitioner. 92. In the view I have taken, I must hold that no part of the cause of action in the present case arose within jurisdiction of the High Court at Calcutta and this Court has therefore no jurisdiction to entertain the application. 93. One of the points taken on behalf of the respondents is the unconscionable delay in making the application. Under Rule 96F, zones were created by the Central Government and excise duty was imposed on the produce of different Zones at different rates by a notification issued in 1958. The objections which have been levelled against the notification of May 1, 1970 could also be levelled with equal force against that notification and similar notifications issued subsequently. Under Rule 96F, zones were created by the Central Government and excise duty was imposed on the produce of different Zones at different rates by a notification issued in 1958. The objections which have been levelled against the notification of May 1, 1970 could also be levelled with equal force against that notification and similar notifications issued subsequently. In fact, the petitioners have not only, challenged the validity of the notification dated May 1, 1970 but also all the earlier Notifications. It is true that if the Notification of May 1, 1970 is only taken into consideration it cannot be said that the delay is unreasonable. The objections are directed against Rule 96F and the relevant Notifications made under Sec. 3 Sch. 1 item 3(1) and that Rule. Under those notifications, for nearly two decades areas have been grouped into Zones and duties levied at varying rates on their produce. It is not the petitioners' case that they have not been conscious of the infirmities of Rule 96F or of the Notifications which they are now seeking to expose. Their case is that they simply did not bother to object because they did not think it to be worth their while having regard to the comparative insignificance of the financial stakes involved. The petitioners have claimed refund of either the entire amount of excise duty paid or the amount paid in excess of the amount payable on the basis of rate of duty prescribed for Zone II since 1967. 94. The claim for refund is bound up with the challenge to the validity of the notifications under which excise duty has been paid by the petitioners. In my opinion, in the facts and circumstances of the present case, it must be held that no relief should in fairness be given in a writ application in respect of the claim for refund having regard to the unreasonable delay in making the application. In the case (36) State of Madhya Pradesh v. Bhailal Bhai, A.I.R. 1964 S.C. 1006. It was observed: "Whether repayments should be ordered in exercise of this discretion will depend in each case on its own facts and circumstances. It may however be stated as a general rule that if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extra-ordinary remedy of Mandamus. It was observed: "Whether repayments should be ordered in exercise of this discretion will depend in each case on its own facts and circumstances. It may however be stated as a general rule that if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extra-ordinary remedy of Mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raised a prima facie triable issue as regards the availability of such reliefs on the merits on grounds like limitation, the Court should ordinarily refuse to issue writ of mandamus for such payments. Further on, in course of the judgment, the Court observed "the provisions of the Limitation Act does not as such apply to the granting of relief under Art. 226. However, the maximum period fixed by the Legislature as the time within which the relief by suit in a civil court must be brought may ordinarily be taken to be a reasonable standard. The delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unreasonable even if this is less than the period of limitation prescribed for a civil action for the remedy. But where the delay is more than the period, it win almost always be proper for the Court to held that it is unreasonable." 95. In the recent case of (37) Trilokchand v. H. B. Munshi, AIR 1970 S. C. 898 Hidayatullah C. J. said “the Court will not enquire into belated and stale claims or take note of evidence of neglect of one's own rights for a long time. The party claiming fundamental rights must move the Court before other rights of innocent parties emerge by-reason of delay on the part of the person moving the Court. In paragraph 10 of the Report, the learned Chief Justice said that avoidable delay affecting the merits of the claim, will disentitle a party to invoke the extra-ordinary jurisdiction. Bachawat J. observed that the Court has summarily dismissed innumerable writ petitions on the gound that they were presented after unreasonable delay. In paragraph 53 of the Report, G. K. Mitter J., observed that as the petitioners had come to the Court long after the date when they could have properly filed a suit, the application had to be rejected. 96. In paragraph 53 of the Report, G. K. Mitter J., observed that as the petitioners had come to the Court long after the date when they could have properly filed a suit, the application had to be rejected. 96. It was submitted that an order should be made for refund of a part of the duty which was paid within the period of limitation. A claim for refund made within a period of limitation which may be successfully pressed in a civil suit may not succeed in a writ petition when there is unreasonable delay in presenting the petition. On the petitioners own showing they have acquiesced in the levy of excise duty under the relevant notifications for over a decade although they were aware of the legal rights which they claim. In these circumstances, I am firmly of the opinion that on the ground of delay alone, apart from other considerations, the application, and especially the claim for refund, should be rejected. In the view I have taken, the Rule is discharged but there will be no order for costs.