Hidayatullah, J. - (1.) This in a petition under Article 32 of the Constitution challenging the imposition of Excise Duty on the petitioner by virtue of item No. 17 "Footwear" of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) with effect from 28th day of February, 1954, and the calculation of the duty and valorem by including in the price, charges for freight, packing and distribution.
(2.) The petitioner, the British India Corporation Ltd., is a public limited company which formed to take over other companies and to amalgamate them. Among the companies which the petitioner took over were Cooper Allen and Company Ltd. and the North West Tannery Company Ltd., both at Kanpur. These two companies manufacture shoes and other leather goods and operate as a single unit manufacturing the well-known brand of " FLEX" shoes. As a result of the financial proposals of the Central Government for the financial year 1954-55, a bill (No. 9 of 1954) was introduced in Parliament on February 27, 1954. Under clause 8 of the Bill foot-wear were proposed to be taxed at 10% ad valorem if produced in any factory as defined in the Factories Act, 1948 (63 of 1948). When the Finance Act 1954 (No. 17 of 1954) was enacted, the Central Excises and Salt Act 1944, was amended by the inclusion of item 17 in the Schedule, though in a slightly different form. The item as finally enacted read as follows:- "17. FOOTWEAR, produced in any factory including the precincts thereof whereon fifty or more workers are working or were working on any day of the preceding twelve months, and in any part of which manufacturing process is being carried on with the aid of power or is ordinarily so carried on, the total equivalent of such power exceeding two horse-power. "Footwear" includes all varieties of footwear, whether known as boots, shoes, sandals, chappals, or by any other name."- ten per cent advalorem"
(3.) Under the provisions of the Provisional Collection of Taxes Act, 1931, (XVI of 1931), the duty was leviable from February 28, 1954, by virtue of a declaration in the Bill to that effect. On the preceding day the Superintendent of Central Excise Kanpur, deputed an Inspector of his department to obtain from the petitioner a declaration of all stock of footwear and requested that the Inspector be permitted to verify the stocks with a view to levying the Excise Duty on and from February 28, 1954. As a result of the imposition of Excise Duty on footwear the petitioner was required to pay during the remaining ten months of 1954 a sum of Rs. 9,47,630 as Excise Duty. The petitioner produces in the two units above-named, footwear for sale to the public and for supplies to the Government for the use of the Army and the Police. The petitioner contends that though the Excise Duty paid by it was capable of being passed on to the consumer it could not include it in the price at which shoes were sold to the public because of heavy competition by those free from such duty, though it did include the Excise Duty in the price of the footwear supplied to Government. Thus Rs. 2 lacs odd were passed on to Government but Rs.7 lacs odd were borne by the Company itself. The petitioner contended before the Collector of Central Excise, Allahabad, that the calculation of the duty ad valorem should not be based on price including freight, packing and distribution charges paid to it by its distributors in the outlying parts of India. This contention of the petitioner was not accepted by the Collector. The petitioner then took an appeal to the Central Board of Revenue but before the appeal could be disposed of, the petitioner filed this petition under Art. 32 of the Constitution praying for writ or writs to quash the order of the Collector of Central Excise, Allahabad, and writ or writs to prohibit the Union Government, the Central Board of Revenue and the Collector and Superintendent of Central Excise from enforcing the provisions of item 17 against the petitioner and collecting the Excise Duty therein levied.;