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2002 DIGILAW 820 (PAT)

Vishnu Sugar Mills Ltd. v. Union Of India

2002-07-30

R.N.PRASAD, RAVI S.DHAVAN

body2002
Judgment 1. After the decision of the Supreme Court in re. Union of India V/s. The National Hydro Electric Power Corporation Ltd. & others; (2001) 6 S.C.C. 307 the notification dated 2.1.1992 No. G.S.R. 311 (E) in the context to this case cannot survive. A notification under the same enactment, the Water (Prevention and Control of Pollution) Cess Act, 1977 was held by the Supreme Court to be not in accordance with law in the case cited above. The notification did not see its passage through Parliament as contemplated under Section 16 of the Act. Thus, any amendment made to the Schedule by notification dated 2.1.1992 No G.S.R. 311 (E) is not in consonance with the procedure prescribed and, thus, ultra vires. 2. Respondents have submitted in their counter-affidavit to explain the manner in which the notification has been issued by implication on the observations of the Supreme Court in re-Saraswati Mills case (A.I.R. 1992 S.C. 224). It is contended that if "sugarcane" is not to be treated as vegetable then it may be understood as an agricultural product. In the matter re- Saraswati Mills case the issue plainly was that "sugarcane" was not vegetable. The Central Government has presumed that "sugarcane" may be an agricultural product. The matter in re. Saraswati Mills case was about sugar and not "sugarcane". 3. Besides, even if the schedule to the Act was to be amended so as to include processing of agricultural products, the modality could only be as Supreme Court has guided in the matter of Union of India V/s. The National Hydro Electric Power Corporation Ltd. & Ors; (2001) 6 S.C.C.307 (supra). The amendment could only be incorporated by having the matter laid, as contemplated under section 16 of the Act, before the Parliament. This admittedly has not been done. In the circumstances, the levy and cess as was indicated vide notification No. G.S.R. 14 (E) dated 2.1.1992, Annexure-1 to the writ petition, is not in accordance with law. Any demand for cess in pursuance of the notification aforesaid, which may have been realised from the petitioner, the latter would be entitled to refund. 4. The petition succeeds with costs.