ORDER 1. Petitioners in all these petitions, are manufacturers of steel and steel products. The produce of the petitioners were subjected to excise duty in terms of S. 3 of the Central Excise Act, 1944 (for short, the Act). The Central Government in the wake of its experience that the collection of excise duty from certain industries and sectors including steel industry was not commensurate to the production levels in the industry, had, by way of an amendment to the Act, introduced S. 3-A by virtue of S. 81 of the Finance Act, 1997 (Act 26 of 1997), which was made effective from 18-5-1997. The methodology of subjecting to duty the production in steel industry, amongst other industries, as was in vogue under S. 3 of the Act was sought to be changed by introduction of S. 3-A in respect of notified goods notified in terms of sub-section (1) of S. 3-A of the Act and separate procedure was ushered in for the determination of the duty liability of persons who are manufacturing the notified goods in respect of goods produced by the factory covered under the notification issued by the Central Government. 2. The methodology for the determination of duty was provided in sub-section (2) of Section 3A of the Act, which again was relegated to be in terms of Rules framed for such purposes. One major distinction in respect of duty liability as under Section 3 of the Act, which is applicable to all other goods and such of the goods notified under sub-section (1) of Section 3A of the Act is that while all other goods were subjected to duty under Section 3 on the actual production and clearance at the factory gate, either unit-wise or ad valorem, in so far as the duty liability under Section 3A of the Act is concerned, it was sought to be fixed even in advance in terms of sub-section (2) of Section 3A of the Act and such fixation was known as the annual production capacity of the particular factory. The rate of duty in respect of such notified goods was provided for in terms of sub-section (3) or (4) of Section 3A of the Act. The rate of duty in respect of such notified goods was provided for in terms of sub-section (3) or (4) of Section 3A of the Act. Sub-section (4) provided for a relief or concession in favour of manufacturers whose actual production was far below the production as determined under sub-section (2) of Section 3A of the Act and therefore on the Commissioner being satisfied, the liability could be redetermined on the basis of evidence placed by the assessee, to be the duty payable with reference to such actual production at the notified rate. Section 3A reads as under : 3A. Power of Central Government to charge excise duty on the basis of capacity of production in respect of notified goods : (1) Notwithstanding anything contained in Section 3, where the Central Government, having regard to the nature of the process of manufacture or production of excisable goods of any specified description, the extent of evasion of duty in regard to such goods or any other factors as may be relevant, is of the opinion that it is necessary to safeguard the interest of revenue, specify, by notification in the Official Gazette, such goods as notified goods and there shall be levied and collected duty of excise on such goods in accordance with the provisions of this Section. (2) Where a notification is issued under sub-section (1), the Central Government may, by rules, provide for determination of the annual capacity of production, or such factor or factors relevant to the annual capacity of production shall be deemed to be the annual production of such goods by such factory. Provided that where a factory producing notified goods is in operation only during a part of the year, the production thereof shall be cancelled on proportionate basis of the annual capacity of production. (3) The duty of excise on notified goods shall be levied, at such rate as the Central Government may by notification in the Official Gazette specify, and collected in such manner as may be prescribed. Provided that, where a factory producing notified goods did not produce the notified goods during any continuous period of not less than seven days, duty calculated on a proportionate basis shall be abated in respect of such period if the manufacturer of such goods fulfils such conditions as may be prescribed. Provided that, where a factory producing notified goods did not produce the notified goods during any continuous period of not less than seven days, duty calculated on a proportionate basis shall be abated in respect of such period if the manufacturer of such goods fulfils such conditions as may be prescribed. (4) Where an assessee claims that the actual production of notified goods in his factory is lower than the production determined under subsection (2), the Commissioner of Central Excise shall, after giving an opportunity to the assessee to produce evidence in support of his claim, determine the actual production and redetermine the amount of duty payable by the assessee with reference to such actual production at the rate specified in subsection (3). (5) Where the Commissioner of Central Excise determines the actual production under sub-section (4), the amount of duty already paid, if any, shall be adjusted against the duty so determined and if the duty already paid falls short of, or is in excess of, the duty so determined, the assessee shall pay the deficiency or be entitled to a refund, as the case may be. (6) The provisions of this section shall not apply to goods produced or manufactured,— (i) in a free trade zone and brought to any other place in India; or (ii) by a hundred per cent export oriented undertaking and allowed to be sold in India. Explanation I :—For the removal of doubts, it is hereby clarified that for the purpose of Section 3 of the Customs Tariff Act, 1975 (51 of 1975), the duty of excise leviable on the notified goods shall be deemed to be the duty of excise leviable on such goods under the schedule to the Central Excise Tariff Act, 1985 (5 of 1986) read with any notification for the time being in force. Explanation II :—For the purpose of this Section the expressions free trade zone and hundred per cent export-oriented undertaking shall have the meanings assigned to them in Section 3. 3. Explanation II :—For the purpose of this Section the expressions free trade zone and hundred per cent export-oriented undertaking shall have the meanings assigned to them in Section 3. 3. While the petitioners are all persons who are governed by the provisions of Section 3A, their complaint is not so much against the provisions of Section 3A itself, but they have approached this Court for examination of the question of legality of the Rules that were framed by the Government for the purpose of sub-section (2) of Section 3A of the Act and here again not against the Rule as it was originally framed, but as modified about a month after its initial framing. The Rule framed for the purpose of sub-section (2) of Section 3A of the Act i.e. for the purpose of determining the annual production capacity of such factories or mills, is captioned as Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997 (for short, Determination Rules). 4. The Determination Rules were only four in number. What has irked the petitioners is the introduction of a further Rule —Rule 5 —in terms of notification No. 45 of 1997 and providing for a further artificial mode of determination of the annual production capacity for the purpose of sub-section (2) of Section 3A of the Act in terms of Rule 5. The original Rules and the amendment relating to introduction of Rule 5 reads as under : In exercise of the powers conferred by sub-section (2) of Section 3A of the Central Excise Act, 1944 (1 of 1944), the Central Government hereby makes the following rules, namely :— 1. (1) These Rules may be called the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997. (2) They shall come into force on the 1st day of August, 1997. 2. These rules shall apply to non-alloy steel hot re-rolled products falling under sub-heading Nos. 7211.11, 7211.19, 7211.30, 7211.52, 7211.59, 7211.60, 7211.92, 7213.90, 7214.90, 7215.90, 7216.10, and 7216.90 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) for determining the annual capacity of production of a factory if such goods are manufactured or produced with the aid of hot re-rolling mill. 3. 7211.11, 7211.19, 7211.30, 7211.52, 7211.59, 7211.60, 7211.92, 7213.90, 7214.90, 7215.90, 7216.10, and 7216.90 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) for determining the annual capacity of production of a factory if such goods are manufactured or produced with the aid of hot re-rolling mill. 3. The annual capacity of production referred to in rule 2 shall be determined in the following manner, namely : (1) a hot re-rolling mill shall declare the values of d, n, i and speed of rolling the parameters referred to in sub-rule (3) to the Commissioner of Central Excise (hereinafter referred to as the Commissioner) with a copy to the Assistant Commissioner of Central Excise; (2) on receipt of the formation referred to in sub-rule (1), the Commissioner shall take necessary action to verify their correctness and ascertain the correct value of each of the parameters. The Commissioner may, if he so desires, consult any technical authority for this purpose; (3) the annual capacity of production of hot re-rolled products of non-alloy steel in respect of such factory shall be deemed to be as determined by applying the following formula: Annual Capacity - 1,885 x 104 x d x n x I x e x w x number of utilized hours (in metric tonnes) Where, d = Nominal diameter of the finishing mill in millimeters n = Nominal revolutions per minute (RPM) of the drive i = Reduction ratio of the gear box w = Weight in kilogramme per metre of the re-rolled production. The value of e in the formula shall be deemed to be 0.30 in case of low speed mills and 0.75 in case of high speed mills. The value of w factor in the formula for the high speed mills shall be deemed to be 0.45 and for the low speed mills shall be deemed to be as under : (TABULAR MATTER IS OMITTED....ED) Explanation I —A high speed mill means a mill which produces hot re-rolled products at a speed of 8.5 metres per second or more and a low speed mill means a mill which produces hot re-rolled products a speed less than 8.5 metres per second. Explanation II —Nominal diameter of a finishing mill means the distance between pinion centres of the last rolling stand. Explanation II —Nominal diameter of a finishing mill means the distance between pinion centres of the last rolling stand. (4) the Commissioner of Central Excise shall, as soon as may be, after determining the total capacity of the hot re-rolling mill installed in the factory as also the annual capacity of production by an order, intimate to the manufacturer provided that the Commissioner may determine the annual capacity of the hot re-rolling unit on provisional basis pending verification of the declaration furnished by the hot re-rolling mills and pass an order accordingly. Thereafter, the Commissioner may determine the annual capacity, as soon as may be, and pass an order accordingly. 4(1) The capacity of production for any part of the year or any change in the total hot re-rolling mill capacity shall be calculated pro rata on the basis of the annual capacity of production determined in the above stated rule 3. 4(2) in case a manufacturer proposes to make any change in the machinery or any part thereof which tends to change the value either of the parameters d, n, e, i and speed of rolling relating to in sub-rule (3) of rule 3, such manufacturer shall intimate about the proposed change to the Commissioner of Central Excise in writing with a copy to the Assistant Commissioner of Central Excise, at least one month in advance of such proposed change and to obtain the written approval of the Commissioner before making such change. Thereafter, the Commissioner of Central Excise shall determine the date from which the change on the installed capacity shall be deemed to be effective. Newly added Rule 5 : 5. In case, the annual capacity determined by the formula in sub-section (3) of Section 3 in respect of a mill, is less than the actual production of the mill during the financial year 1996-97, then the annual capacity so determined shall be deemed to be equal to the actual production of the mill during the financial year 1996-97. It is this part of the Rule 5 with which the petitioners are really aggrieved, particularly as this Rule fixes the production capacity at the actual production that they had produced during the year 1996-97 wherever it was found such production was higher than the production capacity as otherwise determined by applying or in terms of Rule 3 of the very Rules. 5. 5. It is the possibility of the determination of the production capacity under Rule 5 being much higher than the determination under Rule 3 of the Determination Rules and the petitioners having been called upon to pay the duty at such higher amount as determined under Rule 5, the petitioners are all aggrieved and have therefore questioned the legality of Rule 5 of the Determination Rules mainly on two grounds. The first ground is that Rule 5 goes beyond the object and purpose of the provisions of Section 3A of the Act itself; that it is not really in consonance and within the permitted limits as provided in sub-section (2) of Section 3A of the Act and therefore Rule 5 is ultra vires. The second ground of attack is that Rule 5 has the effect of bringing about an invidious classification and the effect of discrimination against persons like the petitioners vis-a-vis persons whose duty liability can be or is being determined only by applying Rule 3 of the Determination Rules. It is on such twin grounds the petitioners have approached this Court for a declaration that Rule 5 of the Determination Rules are ultra vires, unconstitutional and while the Rules are to be struck down and the petitioners be permitted to work out the relief consequential on such invalidation and for according the consequential relief to the petitioner. The consequential relief sought for is mainly for quashing the determination orders passed by the Commissioner, determining the production capacity of the petitioners in terms of sub-section (2) of Section 3A of the Act and the consequential demands based on such determination of the production capacity. 6. The petitions have some history also. The very petitioners had one earlier approached this Court by filing WP Nos. 33525-41 and 8691 of 1999, but those writ petitions were disposed of in terms of the order dated 11-7-1999, a copy of which is produced at Annexure-G to WP No. 6682 of 2002, on the basis of certain submissions made on behalf of the petitioners and also by taking note of the pendency of such matters before the Supreme Court in Civil Appeal Nos. 52-54 of 1998 and connected cases. 52-54 of 1998 and connected cases. The effect of this order is again a matter of controversy, as it is contended on behalf of the petitioners that this order did not and cannot make any difference to the petitioners for maintaining the present writ petitions as also in seeking for adjudication of the validity of Rule 5 of the Determination Rules; it is sought to be contended on behalf of the respondents that the petitions are not tenable, as the outcome of the earlier round of litigation was expressly made subject to the result of the decision of the Supreme Court in the pending civil appeals and the Supreme Court in terms of its judgment dated 15-10-2001 rendered in those appeals, having rejected the challenge to the rule which was under challenge therein, the present writ petitions are to be necessarily dismissed as being covered by the said decision and that the principles of constructive res judicata is to be applied and the writ petitions be dismissed without examining any contentions urged on behalf of the petitioners. 7. With such background and history arises the question as to whether these petitions are required to be considered on their merit or to be dismissed in limine, on the premise that the judgment of the Supreme Court in Union of India v. Supreme Steels & General Mills (Civil Appeal Nos. 52-54 of 1998 & Connected cases, decided on 15-10-2001) (reported in AIR 2001 SC 2987 ) govern the present petitions also. 8. The petitions having been admitted, the respondents had been put on notice. The respondents are represented by Sri N. Devhadass, learned Assistant Solicitor General. 9. Elaborate submissions have been made by Sriyuths A. N. Subbayya, A. S. Monnappa, Rajesh Chander Kumar, learned counsel appearing for the petitioners, ably led by Sri S. S. Naganand, learned Senior Counsel. 10. As Sri N. Devhadass, learned Assistant Solicitor General, appearing for the respondents, has raised a preliminary objection about the maintainability of these petitions, before adverting to the rival contentions urged on the merits of the petitions, let me take up this issue first, as if it is held the petitions are not maintainable, further questions may not arise for consideration. 11. The objections raised on behalf of the respondents regarding the maintainability of the petitions is on the premise that the petitioners had approached this Court earlier by filing WP Nos. 11. The objections raised on behalf of the respondents regarding the maintainability of the petitions is on the premise that the petitioners had approached this Court earlier by filing WP Nos. 33525-41 and 8691 of 1999 and these petitions came to be disposed of on the petitioners voluntary submission that similar or identical matter was pending consideration before the Supreme Court and the outcome of such matters before the Supreme Court would govern the present petitions also, in terms of the order dated 1-7-1999 passed by this Court in the said writ petitions. 12. It is urged that the matters referred to in this order which was pending before the Supreme Court came to be disposed of and therefore the present writ petitions which are nothing but a rework of the earlier writ petitions, cannot be maintained by applying principles of res judicata. 13. The principles of res judicata will apply if the matters in issue in earlier case between the very parties having been decided is sought to be raised yet again by the very parties or persons claiming under the very parties before a Court of concurrent jurisdiction. It is no doubt true that some aspects that are sought to be raised in the present writ petitions are in common with the issues that were considered or sought for determination in the earlier writ petitions viz, the validity of Section 3A of the Act as also the validity of Rule 96ZO of the Central Excise Rules, 1944 (for short, the Rules), which is analogous to Rule 96ZP, the validity of which arises in the present context. No doubt to this extent, the very issue as to whether Section 3A of the Act is valid is concluded against the petitioners, so also the validity of the provisions of Rule 96ZP of the Rules. No doubt to this extent, the very issue as to whether Section 3A of the Act is valid is concluded against the petitioners, so also the validity of the provisions of Rule 96ZP of the Rules. However, what is urged by Sri Naganand, learned Senior Counsel appearing for the petitioners is that the petitioners are mainly aggrieved by the introduction of Rule 5 in the Determination Rules, which was though an issue before this Court was not an issue before the Supreme Court, but this Court having not examined the question regarding the validity of Rule 5 of the Determination Rules, that question having not been covered or concluded by this Court or the Supreme Court, it is still open to the petitioners to question the legality of this particular provision i.e. Rule 5 of the Determination Rules. 14. On the proper application of the principles governing the doctrine of res judicata, I am of the view that in so far as the validity of Rule 5 of the Determination Rules is concerned, that has not been examined and it is not as though the very petitioners who had challenged the provision, but had submitted that the decision in their earlier writ petitions may await the decision of the Supreme Court in the pending matter before that Court had by such submission conceded about the legality or validity of Rule 5, though this Court should be taken to have disposed of the writ petitions that had been filed by the present petitioners in the earlier round before this Court but that cannot be understood that the petitions were dismissed in the sense of dismissal of petitions on examination of merits of the petitions. Therefore, in so far as the validity of Rule 5 of the Determination Rules is concerned, I am of the opinion that the present writ petitions are not hit by the principals of res judicata. All the learned counsel for the petitioners have submitted that the present writ petitions the challenge is confined to the extent of seeking a declaration in respect of Rule 5 of the Determination Rules that it should be declared as unconstitutional, ultra vires and nothing beyond and other reliefs are being sought as they are consequential. 15. All the learned counsel for the petitioners have submitted that the present writ petitions the challenge is confined to the extent of seeking a declaration in respect of Rule 5 of the Determination Rules that it should be declared as unconstitutional, ultra vires and nothing beyond and other reliefs are being sought as they are consequential. 15. One other aspect urged by the learned Assistant Solicitor General regarding the maintainability is on the premise of all the petitioners having availed the option of a concessional rate of duty as had been offered under Rule 96ZP(3) of the Rules and having by their own volition opted out of the alternative that was available to them under sub-section (4) of Section 3A of the Act, it is now not open to the petitioners to turn around and seek to challenge the validity of Rule 5 of the Determination Rules, which is sought to be challenged only on the ground that it creates higher duty liability on the petitioners than the determination otherwise as under Rule 3 of this very Rule or in the larger sense under sub-section (2) of Section 3 of the Act. 16. It is no doubt true that the Supreme Court has upheld the validity of an analogous provision viz., Rule 96ZO, but that can only mean the provision of Rule 96ZP (3) operates against the petitioners and if the petitioners had opted for payment of duty under this provision, they are not entitled to invoke the alternative choice that was open to them under sub-section (4) of Section 3A of the Act. 17. If the submission on behalf of the respondents is properly examined, it really amounts that a plea of estoppel is sought to be raised against the petitioners from permitting or allowing them to impugn the constitutional validity of Rule 5 of the Determination Rules. 17. If the submission on behalf of the respondents is properly examined, it really amounts that a plea of estoppel is sought to be raised against the petitioners from permitting or allowing them to impugn the constitutional validity of Rule 5 of the Determination Rules. As the petitioners have impugned the validity of this rule, not only on the ground that the rule is ultra vires the Section 3A of the Act, but also on the ground that it is violative of Article 14 of the Constitution, being discriminatory in nature, as between persons like the petitioners, who are covered under Rule 5 of the Determination Rules and for other duty payers not covered under this Rule, the defence in the nature of a plea of estoppel to prevent the challenge as violative of Article 14 cannot be accepted. 18. In effect and substance, what is urged is that the petitioners should not be permitted to question the legality of Rule 5 of the Determination Rules, in view of not only having opted for the option of concessional rate of duties available under Rule 96ZP (3) of the Rules. 19. An argument of this nature cannot be accepted for the simple reason that no estoppel can be pleaded against a statute in the larger sense, but more precisely, there is no waiver of fundamental right by any person, even assuming that the person has waived it. It is not open to the State to plead such waiver when the validity of a provision is called in question on the ground that the provision is violative of any of the constitutional requirements or falls short of the constitutional requirement. Irrespective of a citizen waiving his /her fundamental right, it is always incumbent upon the State to defend its action, executive or legislative, on the touchstone of constitutional provision. It is for this reason, I hold that the respondents cannot contend that it is not open to the petitioners to question the validity of Rule 5 of the Determination Rules in the present writ petitions. It is therefore I take up examination of the merits of the contentions urged on behalf of the petitioners in these petitions. 20. In so far as the argument of ultra vires is concerned, submission of Sri. It is therefore I take up examination of the merits of the contentions urged on behalf of the petitioners in these petitions. 20. In so far as the argument of ultra vires is concerned, submission of Sri. S. S. Naganand, learned Senior Counsel appearing for the petitioners, by drawing attention to the provisions of Section 3A of the Act, is that the very object of introducing Section 3A was to ensure that the factories and manufacturers who manufacture notified goods in terms of notification issued under sub-section (1) of Section 3A of the Act and who were not disclosing or revealing their true production and as such was causing loss to the revenue should be taken care of; that the methodology of fixing or determining the duty liability with reference to production declared by the manufacturers having not worked in practice, particularly having regard to the rampant evasion that was prevalent amongst such sectors or industries, the determination of duty liability was sought to be changed, altered and linked to the determined production capacity rather than the actual declarations and sub-section (2) of Section 3A of the Act was introduced by providing for a formula based on which such production capacity can be determined, and by a deeming provision, presumed that such determination is the actual production of the factory or the assessee, based on which the assessee was saddled with the duty liability. What is submitted is that the whole object of introducing Section 3A is to determine the duty liability on a notional basis in the sense on the production capacity as determined by a formula in terms of sub-section (2) of Section 3A of the Act and not based on the actual production. Submission is that the very object is to shift the basis of the duty liability from the actual production to a notional production capacity, as determined under this provision. Submission is that the very object is to shift the basis of the duty liability from the actual production to a notional production capacity, as determined under this provision. It is, therefore, submitted that when such purpose has been achieved by sub-section (2) of Section 3A of the Act, there was no need for bringing about the provisions like Rule 5 of the Determination Rules, which has affected the persons like the petitioner and under which the production capacity for the purpose of sub-section (2) of Section 3A of the Act is again sought to be delinked from the annual production of the year 1996-97 and the deemed production as is required to be determined under sub-section (2) of Section 3A of the Act is taken to be the actual production of the assessee for the year in question if it was found that such actual production of the year was higher than the determination as otherwise arrived at by the normal working of the provisions of sub-section (2) of Section 3A of the Act and Rule 3 of the Determination Rules. Submission is that Rule 5 creates a further fiction for the purposes of sub-section (2) of Section 3A of the Act and creation of further fiction while is not permitted by the delegated authority, it also goes beyond the very purpose and object with which Section 3A is introduced, in the sense the object of Section 3A if for creating a duty liability by the methodology of such determination and on a naotional basis, which is in fact taken away or worked at cross-purpose by Rule 5 by again taking back the determination of the duty liability to be linked to the actual production. It is for this reason, it is submitted that the provision of Rule 5 of the Determination Rules is ultra vires. 21. It is for this reason, it is submitted that the provision of Rule 5 of the Determination Rules is ultra vires. 21. Sri Rajesh Chander Kumar and Sri Monnappa, learned counsel appearing for the petitioners in some of the cases, have also submitted this aspect by highlighting such other possibilities such as Rule 5 providing for determination of the actual production capacity of the factory on considerations not germane for the purpose of Section 3A of the Act; that the Rule cannot go beyond the scope of main section; that Rule 5 virtually defeats the very object of creating a notional production capacity and therefore also the Rule is ultra vires Section 3A of the Act. 22. One another fact of submission in this regard is that when the object itself is to fix or determine the production capacity on notional basis, taking the actual production for the year 1996-97 as such notional production for the subsequent years and when it is not so determined by any fiction but by reference to the actual production of the year, and it is not in consonance with the object of legislation viz., introduction of Section 3A of the Act and therefore Rule 5 works at cross purposes with Section 3A and as such ultra vires the section. 23. In so far as the challenge to this rule on the touchstone of Article 14 of the Constitution, and on the premise that while the object of legislation was to provide for a national basis to determine the production on which the production duty is levied and collected, that has not been uniformly applied to all manufacturers but in the case of persons like the petitioners, though even in the case of petitioners also, such notional production capacity is determined and arrived at by applying the formula provided under Rule 3 of the Determination Rules read with sub-section(2) of Section 3A of the Act, it is given a go-by whenever it is found that such production of the year under consideration is higher than such determination and in respect of such persons are asked to pay duty only on the basis of their actual production during the year. What is urged is whereas such of those persons who perhaps did not even disclose their production properly during the earlier years and for remedying which, evil, the legislature introduced Section 3A and to that extent the object is fully achieved in terms of the determination by applying the formula under Rule, 3, only in the case of persons like the petitioners, there is a departure that the determination under Rule 3 is given a go-by and the petitioners are asked to pay duty at a higher amount or a greater duty liability is fastened and not linked to the production of the year 1996-97. Submission is that the discrimination aspect looms large because persons like the petitioners are asked to pay a higher duty than what duty is payable in terms of Rule 3, whereas all others are permitted to pay the duty at the level as determined by the working of Rule 3. One another contention in this regard is that the Rule which is an introduction by way of an afterthought, in fact works at cross-purposes and virtually amounts to penalizing honest tax payers like the petitioners, whereas other persons against whom the provisions were aimed at, are virtually rewarded, in the sense their liability even as determined under Rule 3 of the Determination Rules, never crosses the notional production capacity. Submission of the learned counsel for the petitioners is that sincere and honest tax payers like the petitioners are virtually put at a great disadvantage by Rule 5, which at any rate, is discriminatory to petitioners vis-a-vis other manufacturers covered under Rule 3 and therefore Rule 5 is bad, unconstitutional and liable to be struck down. 24. Submission of the learned counsel for the petitioners is that sincere and honest tax payers like the petitioners are virtually put at a great disadvantage by Rule 5, which at any rate, is discriminatory to petitioners vis-a-vis other manufacturers covered under Rule 3 and therefore Rule 5 is bad, unconstitutional and liable to be struck down. 24. One another facet of working of discrimination according to the learned counsel for the petitioners is that it is writ large on the face of Rule 5 inasmuch as two factories with identical production capacity are treated differently in the sense as between two such persons, a person who is more efficient and not only produces more but also honestly discloses the production and had paid the duties in the year 1996-97 is for the subsequent years asked to pay higher duty by applying Rule 5, whereas an indolent and dishonest tax payer who had not even achieved the capacity in the year 1996-97 or not disclosed the actual production, is virtually rewarded as the tax liability never crosses the notional production capacity as determined under Rule 3. 25. It is for such reason the learned counsel for the petitioners urged that Rule 5 is obnoxious, violative of Article 14 of the Constitution and liable to be struck down. It is in support of these submissions, the learned counsel for the petitioners placed reliance on the following decisions: (1) Kathi Raning v. State of Saurashtra, AIR 1952 SC 123 (2) Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 (3) Vajravelu v. Special Deputy Collector, AIR 1965 SC 1017 (4) Laghu Udyog Bharthi v. Union of India, AIR 1999 SC 2596 (5) Khoday Distillieries Ltd. v. State of Karnataka (1996) 10 SCC 304 : ( AIR 1996 SC 911 ). 26. 26. Placing reliance on the principles evolved in these decisions, submission of Sri S. S. Naganand, learned Senior Counsel appearing for the petitioners is that taxation statutes are not immune from the test of Article 14 of the Constitution i.e. the State is not relieved of the obligation to treat all citizens equally and to provide equal protection, which can be to ensure an even burden also, particularly as under taxation statutes, citizens are only subjected to payment of tax which may be considered as burden, but such burden cannot be grossly uneven or irrational in the sense that it should not be an arbitrary levy irrespective of nature of the person. 27. In support of the submission of the argument that the provision of Rule 5 of the Determination Rules is not only irrational but is unjust and brings about discrimination, Sri Naganand, learned senior counsel for the petitioners has placed considerable reliance on the report of the Department Related Parliamentary Standing Committee on Industry, which by its 30th report on demand for grants (1999-2000) of Department of Steel, presented to the Rajya Sabha on 23rd April, 1999 had this to say on this aspect of the matter. 8:3:5 Re-rollers : (a) The Committee was informed that the sub-rule (5) of Central Excise Notification No. 45/97 dated 30-8-1997 under RAC Compound Levy Scheme) of Central Excise Act, 1994, issued by the Department of Revenue, Ministry of Finance, is unconstitutional and creates disparity among the members of re-rollers because the said rule defeats the very purpose of Compound Levy Scheme as two rolling mills of the same annual capacity based upon the formula prescribed by the Department will be paying two different amounts of duty based upon the production of 1996-97. The sub-rule (5) of the Notification No. 45/97 dated 30-8-1997 reads as under : In Case, the Annual Capacity Determined by The Formula In Sub-section (3) of Section3 In Respect of A Mill, Is Less Than The Actual production of the Mill During The Financial Year 1996-97, Then The Annual Capacity So Determined Shall Be Deemed To Be Equal To The Actual Production of the Mill During the Financial Year 1996-97. The committee is of the opinion that the above provision is unjustifiable, illogical and discriminatory. It is a matter of common knowledge that steel industry was doing well till the year 1996-97 nationally and globally. The committee is of the opinion that the above provision is unjustifiable, illogical and discriminatory. It is a matter of common knowledge that steel industry was doing well till the year 1996-97 nationally and globally. The downfall in the demand and prices started from the year 1997-98 which is still continuing. Under such circumstances, it will be great injustice if the above rider of treating the actual production of 1996-97 for any steel unit for arriving at capacity for the purpose of steel unit. It must be creating hardship to those units who went to the maximum production by adopting all possible methods to meet the raised demand and thereafter the production has to keep at a low level due to sluggish market conditions. In fact this is the high time when Govt. should have come forward to help the steel industry from 1997-98 taking a rational view within ascertaining capacity of the unit for the purpose of levy of excise duty. This rider of sub-rule (5) is discriminatory also because there will be the units of similar nature and similar capacity but some have to pay higher excise duty because they managed the affairs very well in the year 1996-97 and also shown their production honestly. Such units have to pay more in comparison to other units. The Committee feels that the deletion of sub-rule (5) will restore justice and also avoid unnecessary litigation. Heneforth the Committee feels that the department of Revenue should evolve rational criteria of capacity assessment for excise duty and should delete sub-rule (5) of Central Excise Notification No. 45/97 dated 30-8-1997 under Section 3A /Compound Levy Scheme) with retrospective effect. (b) x x x x x x 28. Placing considerable reliance on this report, what is submitted by Sri Naganand is that the Committee itself had noticed the discriminatory nature of Rule 5; that it had worked injustice against persons who were covered by this Rule and the Committee had strongly recommended for the deletion of this rule. (b) x x x x x x 28. Placing considerable reliance on this report, what is submitted by Sri Naganand is that the Committee itself had noticed the discriminatory nature of Rule 5; that it had worked injustice against persons who were covered by this Rule and the Committee had strongly recommended for the deletion of this rule. Learned senior counsel also points out that in the light of such recommendation, in fact, the very provisions of Section 3A came to be withdrawn in terms of repealing notification dated 11-5-2001, but what is more important is even before this, by issue of an earlier notification that was on 31-3-2000, the notification that had been issued under sub-section (1) of Section 3A of the Act notifying certain products for levy of duty under Section 3A itself was withdrawn and the effect of which was that even in respect of such products including steel and steel products, with which the petitioners are concerned, were reverted to levy or duty under Section 3 of the Act. Learned Senior Counsel points out that the levy of duty in so far as the petitioners are concerned under the provisions of Section 3A, particularly by applying Rule 5, was in vogue only during the period between 1-9-1997 up to 31-3-2000; that the legislature itself having noticed the obnoxious nature of such statutory provision and having done away with such law, no further proof of the nature of law is required and therefore this Court should take cue from this development and even otherwise as the provision, according to the learned counsel for the petitioners, is violative of Article 14 it should necessarily be struck down. 29. 29. The attack on the ground of Article 14 based on the ratio of the decisions referred to above is that there is no rationale or justification to single out persons like the petitioners for a harsh duty liability in terms of Rule 5 and at any rate it does not subserve the object of Section 3A itself, as the Legislature never intended to take any action either under the main provision of Section 3A or under the Rules to be framed for the purpose of Section 3A against persons like the petitioners, who had been disclosing their actual production promptly, diligently and have been discharging their duty liability and therefore harsh treatment against the petitioners is projected as a discriminatory treatment and therefore the provision is bad. 30. On behalf of the respondents, countering such submission, Sri N. Devhadass, learned Assistant Solicitor General, has submitted that the provisions or particularly Rule 5 does not militate against Section 3A; that it in fact does not either create any artificial liability on the petitioners nor does it accord discriminatory treatment to the petitioners; that while the provisions of Determination Rules as had been introduced initially through notification No. 32/97 dated 1-8-1997 had by itself could have achieved the purpose of introduction of Section 3A, but as it was also noticed that it was to certain extent working counter productive to the interest of the revenue, as the rule by uniform application would bring down the revenue by reducing duty liability in respect of persons who had demonstrated their ability for better production and also for payment of duty and that was rectified by introduction of Rule 5 in terms of the notification No. 45/97 dated 30-8-1997 and therefore, Rule 5 cannot be said to be ultra vires the provisions of Section 3A; that it is well within the scope of Section 3A as provided for in sub-section (2) of Section 3A of the Act and not ultra vires as contended by the learned counsel for the petitioners. 31. 31. In so far as the argument that Rule 5 is discriminatory as against the petitioners, Sri Dehvadass submits that the provision per se does not militate against persons like the petitioners; that if at all the petitioners are being asked to pay duty on their actual production, which is otherwise also the norm under the scheme of the Act in general; that in respect of such manufacturers whose duty liability has been determined on notional basis in terms of sub-section(2) of Section 3A of the Act including the persons like the petitioners, whose duty liability is determined by applying Rule 5, an option is given under the provisions of sub-section (4) of Section 3A of the Act that in any case production is found to be far below the notional determination, it was open to the particular assessee to seek for redetermination of the production capacity by making an application to the Commissioner in this regard sub-section (4) of Section 3A of the Act and when such option is available to persons like petitioners also, it cannot be said that determination under Rule 5 by itself works out in a discriminatory manner as against the petitioners. 32. Elaborating the submission, learned Assistant Solicitor General submits that in matters of taxation, the State enjoys a very wide discretion and scope; that it is left to the violation of the State to classify persons, citizens, groups or even taxing event. It is also open to the State to choose the measure of levy; that if the tax or duty is levied according to ones capacity, no discrimination can be attributed to the State action, no liability as determined even in terms of Rule 5 being linked to the capacity of the petitioners, and if different citizens have different capacity, whereby a difference in the duty liability that in itself cannot be termed as discriminatory and therefore submits that the provision is neither invalid nor discriminatory as contended by the petitioners, and therefore the writ petitions are liable to be rejected. In this regard, learned Assistant Solicitor General has placed reliance on the following decisions of the Supreme Court: (1) State of West Bengal v. Sadan K. Bormal (2004) 6 SCC 59 : ( AIR 2004 SC 3666 ) (2) Commissioner of Commercial Taxes, Ranchi v. Swarn Rekha Cokes and Coals (P) Ltd. (2004) 6 SCC 689 : ( AIR 2004 SC 3380 ). (3) Union of India v. International Trading Co. (2003) 5 SCC 437 : ( AIR 2003 SC 3983 ). 33. Learned Assistant Solicitor General by drawing attention to Circular No. 331/41/97-CX dated 30-8-1997, a copy of which is produced at annexure-F to WP No. 6682 of 2002, issued by the Tax Research Unit of the Government of India, Department of Revenue, bringing to the notice of all the Chief Commissioners of Customs and Excise, introduction of Rule 5 in the Determination Rules, submits that the Rule had been introduced for the specific purpose of covering the situation where the determination in terms of the Rules if was found to be less than the actual production for the year 1996-97; that in such an event, the determination in terms of the formula should be ignored and instead the production for the year under consideration should be adopted for the purpose of sub-section (2) of Section 3A of the Act. Submission is that the exercise is a well thought out functious act to prevent any intended revenue loss. 34. It is in the light of such rival contentions, the matter is required to be examined. 35. Let me examine first the ultra vires argument i.e., Rule 5 being ultra vires provisions of Section 3A, particularly sub-section (2) of Section 3A of the Act. Ultra vires principle or theory is attracted when under the delegated legislation delegatee goes beyond what is permitted or otherwise or even while purporting to act within the authority crosses the limits that are fixed by the Legislature itself i.e. the Rule going beyond the scope of the Section. In so far as the provisions of Section 3A is concerned, it is not in dispute that it is supplementing to the main charging Section 3 and to cover certain industries and products, which are notified for such special treatment. In so far as the provisions of Section 3A is concerned, it is not in dispute that it is supplementing to the main charging Section 3 and to cover certain industries and products, which are notified for such special treatment. As noticed in the beginning, the normal procedure of levy duty on the manufacturer of items at the factory gate and on the actual production basis, has been deviated under Section 3A by the methodology of determination of the production capacity at the beginning and realization of the duty in respect of that annual capacity determination on such basis either in installment or in one lump sum depending upon the mode of recovery i.e., legislature has by this provision aims to avoid a constant scrutiny into the activity of production by manufacturers in the notified goods and also seeks to provide a fixed measure for the determination of the liability in the sense that when once the annual production capacity is determined under sub-section (2) of Section 3A of the Act, then the duty liability also gets determined the varying factor being only the particular item and rate of duty applicable on that item. Of course, in the mode of realization under Rule 96ZP certain leeway had been given to the tax payers an incentive of lower rate of duty discharge provision in terms of sub-rule (3) of Rule 96ZP or normal rate as provided under the notification and the normal manner of duty payment in the sense though the annual capacity is determined in the beginning while payment can be made on the basis of production and clearance as and when, the balance if any that falls short to be made good at the end of the year within the prescribed period for the same in terms of sub-rule (1) of Rule 96ZP. If such is the scheme of Section 3A and the manner of determination of the actual capacity of production which is in terms of sub-section (2) of Section 3A of the Act is again totally delegated to the Central Government, which for the purpose of the Act is authorized to frame the Rules, the guiding factor having taken into consideration the factors relevant on the annual capacity of the factory in which the goods are produced, what is indispensable at once is Section as such does not by itself provide the manner in which such production capacity can be determined but the entire exercise is delegated to the Central Government in terms of Rule to be framed by the Central Government. If such statutory provision is to be looked into in strict sense or in a technical sense, it will be rather difficult to accept that the doctrine of ultra vires is attracted in respect of Rule 5 vis-a-vis sub-section (2) of Section 3A of the Act. In fact in the present situation, as the entire process of determination is left to the Central Government by framing of rules for such purpose, there is no other provision in comparison with which and available in the Section, it can be said that the Rule is ultra vires. It is for this reason, the learned counsel for the petitioners have also pressed the argument that the object of introducing Section 3A itself is to create an artificial liability in the sense by fiction of law and if Rule 5 has the effect of determining liability on the reality basis, it is contrary to the very object of introduction of this legislative provision and therefore it can be argued that the provision is ultra vires. 36. The argument of ultra vires will be available when it can be shown that in reality a rule is either beyond the scope or works contrary to the provisions of the Section. The provisions of Section 3A if is examined in this context, it can be said that the provisions themselves were intended to check the malice of rampant evasion prevalent in certain industries. The provisions of Section 3A if is examined in this context, it can be said that the provisions themselves were intended to check the malice of rampant evasion prevalent in certain industries. If the section is to ensure such persons who had indulged in evasion were suitably dealt with to prevent revenue leakage, the main object is not to deal with non-evaders but is only to deal with or fill up the gap i.e. leakage of revenue due to the activities of evaders. If such is the situation, Section 3A really did not rope in persons like the petitioners who if at all claim to be efficient and honest tax payers. If under rule 5 the artificial determination that is sought to be arrived at under sub-section (2) of Section 3A of the Act in respect of such evaders is fixed notionally and if that was not the intention in respect of other tax payers, honest and efficient, and therefore there was no need to bring them under sub-section (2) of Section 3A of the Act and if Rule 5 has only achieved this object of taking them out from the operation of sub-section (2) of Section 3A of the Act and place them back to reality, it can never be said that Rule 5 is ultra vires provisions of Section 3A of the Act. If in the first instance persons like the petitioners were not the persons who were intended for coverage under Section 3A and Rule 5 only achieves this, Rule 5 cannot be said to be ultra vires. 37. In fact, under Rule 5, the liability is one for making the annual production of such persons in the year under consideration to be taken as the basis, it is more linked to reality than to any artificial method of determination. A provision which really is based more on reality than on an artificial basis of determination, cannot be complained of as being ultra vires provisions of Section 3A of the Act. It is for this reason, I am unable to accept the argument that Rule 5 of Determination Rules is ultra vires provisions of the main Section. 38. That takes me to the argument of discrimination. It is for this reason, I am unable to accept the argument that Rule 5 of Determination Rules is ultra vires provisions of the main Section. 38. That takes me to the argument of discrimination. Though it has been well recognized that the taxing power is a sovereign power of the State; that there cannot be any fetter on the sovereign power; that the State enjoys a wide choice in choosing the subjects, event, persons and even place to tax, the system being one under the Constitutional scheme, exercise of any sovereign power of any organ of the State is nevertheless should be within the constitutional limits and it is therefore it is said that even taxation power of the State though part of sovereign powers is not immune from judicial scrutiny on applying the parameters or on the touchstone of the constitutional provisions, particularly fundamental rights in Chapter-III of the Constitution. 39. Also it is a well accepted principle as evolved in a series of decisions of the Supreme Court that while the State enjoys wide leeway and discretion in matters of levy of tax, nevertheless it should not result in blanant discrimination; that it should not give an impression that the State is acting in a totally arbitrary manner or that its act is a whimsical one in the sense that it is in the nature of victimizing some. 40. While Article 14 is a weapon available to all tax papers to complain against the discriminatory act of the State, the matter is examined by Courts wearing the spectacle of judicial review it is also equally settled that the scrutiny is not as strict or as harsh as in respect of other State actions; that the scrutiny is not on an accurate or scientific basis, but as to whether the State is able to satisfy that the classification or grouping of persons for differential treatment has some basis, has some relevant purpose and if so the classification passes the test of Article 14. 41. In so far as the version that there is a classification, there is no dispute. In fact the petitioners even by their own pleadings and contentions would themselves demonstrate that they stand as a class apart from other tax payers covered under the provisions of Section 3A of the Act. 41. In so far as the version that there is a classification, there is no dispute. In fact the petitioners even by their own pleadings and contentions would themselves demonstrate that they stand as a class apart from other tax payers covered under the provisions of Section 3A of the Act. Obviously, there is a classification in the sense while the petitioners claim that they are all persons who could be identified as efficient and honest tax payers, in fact all persons under Rule 5 can claim so, those who do not figure or not covered under Rule 5 or those come within the scope of Rule 3 as it is, and against whom provisions of Section 3A intended, can be taken to be another class in the sense that two groups which are covered under Section 3A can be on a rough or broad classification identified as persons like the petitioners who claim to be efficient and honest tax payers and others. 42. The complaint is that persons like the petitioners as a group is treated to differential treatment or a hostile treatment. This is so complained because while the persons in the other group who were covered only by Rule 3 in the matter of their duty liability, are required to pay duty only at the level determined by applying Rule 3 and on the basis of the formula as indicated in sub-section (2) of Section 3A of the Act, so far as the persons like the petitioners are concerned, they are asked to pay higher duty determined by working these provisions. It is because of this possibility of duty liability on the petitioners going up in terms of Rule 5, petitioners are complaining. It is how the discrimination argument is also built and projected. 43. It has been squarely well settled by now that the State has the choice or the leeway to tax persons based on their capacity. Persons with different capacities can be subjected to different levels of tax. Levy of higher tax on more capable or competent has been accepted to be not a discriminatory act on the part of the State. Complaint in the present case is precisely that more efficient and more upright people are taxed at higher rate. It may be true. The result is this. Levy of higher tax on more capable or competent has been accepted to be not a discriminatory act on the part of the State. Complaint in the present case is precisely that more efficient and more upright people are taxed at higher rate. It may be true. The result is this. But, the question is as to whether the petitioners are singled out for hostile discriminatory treatment? The examination is not by a mere comparison simplicitor, but by examining the classification and as to whether the classification is based on an intelligible criteria having a nexus to the object of the Legislation. If this test is applied, while the classification being based on an intelligible criteria is virtually conceded by the petitioners also, but whether it has the nexus also to the object of Section 3A is the question. If the object of Section 3A was only and mainly intended to rope in evaders who had not paid taxes promptly and who were sought to be taxed or subjected to duty at least based on their production capacity and that was being fixed or determined in the beginning while that purpose is achieved in respect of evaders, persons like the petitioners who are really not persons against whom Section 3A was intended, if are left without such formula being made applicable to them, but being asked to pay duty on the actual capacity, it can never be said that by providing determination capacity in so far as persons like the petitioners under Rule 5 and that to be even the notional determination for the purpose of sub-section (2) of Section 3A of the Act, the purpose of legislation is in no way defeated. In fact what Rule 5 achieved is to retain persons like the petitioners for being subjected to duty on their actual and proven production capacity. A provision like this can never be said to be as an irrelevant or arbitrary nor one which has no nexus to the object of the legislation. In fact if the Rule 5 achieves the object of not determining the duty liability in respect of persons like petitioners with reference to notional basis but retains them on reality basis, it can be said that the object of roping in evaders for the purpose of Section 3A is also strictly achieved under Rule 5. 44. In fact if the Rule 5 achieves the object of not determining the duty liability in respect of persons like petitioners with reference to notional basis but retains them on reality basis, it can be said that the object of roping in evaders for the purpose of Section 3A is also strictly achieved under Rule 5. 44. The complaint against Rule 5 by the petitioner is only because there is a possibility that even in the case of evaders if they had actually produced more in the base year and suppressed that, whereas their duty liability is to be artificially pegged down to the level as determined in terms of sub-section (2) of Section 3A of the Act, in so far as the petitioners are concerned, just because they had disclosed their actual production that takes up their liability for the subsequent years with reference to such actual production and disclosed production. This may be an obnoxious and unwelcome effect on the petitioners, but as has been settled in matters of taxation, while the test is from the angle of provisions and its effect in general, the test cannot be from the angle of the impact on the individual and from the end result. It is quite possible in all taxing provisions, the provisions though are uniform and apply in general, could work a little harsh on some individuals whereas for all others it may be even benevolent. Such circumstances cannot be considered as by themselves leading to such similar action while pronouning upon the validity of the legislation. 45. It is no doubt true that Sri Naganand, learned senior counsel appearing for the petitioners has placed considerable reliance on the report of the Parliamentary Sub-Committee wherein the provision has come in for rather critical and adverse observations and in fact the Parliament and the Government have acted promptly on the report and not only the notification under sub-section (1) of S. 3-A of the Act was withdrawn promptly but the very provision of S. 3-A has been subsequently deleted by the Legislature. It may be true that the Government and the Legislature acted promptly on noticing certain anomalies. It may be true that the Government and the Legislature acted promptly on noticing certain anomalies. The perception of the Committee has been appreciated by the Legislature and the executive unit of the State, but that by itself cannot constitute a foundation or basis for the Courts to declare a legislative provision as unconstitutional, as the tests that are required to be applied for such determination not necessarily correlated or on par. While it is possible for the petitioners to seek relief if in respect of the period under consideration for such concession or reliefs for which they may seek for relief before other organs of the State, a mere possibility that such relief can be granted by other organs of the State cannot be the basis or foundation for extending similar or identical relief, when the question is examined in the context of judicial review of legislative action. If such an examination is necessary, the parameters are well laid down. Earlier principles evolved constituting a precedent governing the scrutiny and if such tests are applied, I am afraid the challenge to the validity of Rule 5 on the touchstone of Art. 14 and on the ground that it is discriminatory as between the petitioners and other duty payers under S.3-A cannot be accepted. 46. The real reason as to why the petitioners are feeling the heat and are complaining against the provisions of R. 5 of the Determination Rules and are crying foul against this levy is not because the rule is per se bad by itself and really discriminatory as alleged by the petitioners, but because of the impact of necessary trend in the steel industry during the period under consideration i.e. after 1-4-1997 onwards; that because the petitioners were not able to maintain their production levels as either the level they had achieved during the year 1996-97 or were unable to even improve upon such production during the relevant period. The real adverse impact on the petitioners is not by the Rule itself but because of such other persons as the slump in the steel market, the fall in demand for steel and steel products in the market and the overall production levels coming down drastically for want of demand in the market. The real adverse impact on the petitioners is not by the Rule itself but because of such other persons as the slump in the steel market, the fall in demand for steel and steel products in the market and the overall production levels coming down drastically for want of demand in the market. Even here, while the provision of sub-section (4) of S. 3A of the Act had provided a way out to such persons whose production levels had come down substantially, where persons liable for payment of duty in terms of the determination by applying only R. 3 or even in the case of persons like the petitioners to whom R. 5 applies, and could have by seeking for a re-determination of the capacity by applying to the Commissioner with reference to the actual production, which perhaps could have considerably reduced in respect of persons like the petitioners. 47. Herein again the petitioners themselves are to be blamed or are responsible for foreclosing their options under sub-section (4) of S. 3-A of the Act by opting to payment of duty by availing the concessional rates of duty in terms of Cl. 3 of R. 09ZP, which provision when such concession is availed of, prohibits the persons availing of concession from seeking modification of the order determining the production capacity by having resorted to sub-section (4) of S. 3-A of the Act. It is because the petitioners have burnt their boats, they are stranded, which was a voluntary act on their part and are complaining of a higher rate of tax liability on them and not because of anything obnoxious in R. 5 of the Determination Rules. Unfortunately, for the petitioners, the validity of similar rule —Rule 96-ZO —having been upheld by the Supreme Court in the case of Commissioner of Central Excise & Customs v. M/s. Venus Castings (P) Ltd., 2000 (4) JT (SC) 77 : ( AIR 2000 SC 1568 ), the petitioners are now denied of any opening to avail the benefit of sub-section (4) of S. 3-A of the Act and that is the real reason as to why the petitioners are in the present condition. 48. 48. It is again a situation where while Courts cannot, in the exercise of judicial review of legislative action, find fault with the impugned Rule on applying the legal principles in the context of rule against equality, enshrined in Art. 14 of the Constitution of India. It is open to the petitioners to work out the possibilities by knocking at the doors of the Executive or the Legislature as they desired. It is for such reason, the contention of provision being discriminatory falls. 49. The other consequential reliefs sought for by the petitioners being only in the event of their success in the writ petition. Such prayers do not arise for consideration. Even as submitted by the learned counsel for the petitioners, naturally the determination of duty liability is not in dispute as also levy of penalty and interest are matters which are pending before the appellate authorities at various stages and such matters can be independently pursued. It is open to the petitioners to urge therein such extenuating circumstance to justify a non-levy of penalty etc., it is also open to the petitioners to pursue their efforts before the other organs of the State. In fact, the very report of the Parliamentary Committee on which reliance is placed may be a ray of hope for the petitioners to pursue their efforts in such direction. This observation is more as a consolation than by way of any relief under this jurisdiction. 50. Writ petitions on the ground that R. 5 of the Determination Rules is ultra vires provisions of the Act or it is discriminatory cannot succeed and the writ petitions are accordingly dismissed. No order as to costs. 51. Petitions dismissed.