- (1.) BY means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner M/s. Hamdard (Wakf) Laboratories, Ghaziabad seeks the following reliefs : (i) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 15th November, 2000 passed by the respondent No. 3 (Annexure No. 7 to the writ petition ). (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to recover any amount from the petitioner in pursuance of the impugned order dated 15th November, 2000. (iii) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (iv) Award cost of the petition in favour of the petitioner. Briefly stated facts giving rise to the present writ petition are as follows :
(2.) ACCORDING to the petitioner, it is engaged in the manufacture and sale of Unani Medicines. It has its laboratory at B-1/2, Industrial Area, Meerut Road. Ghaziabad. It has been granted licence for manufacture of Unani Medicines by the Drug Controller of the State of U. P. under the provisions of Drugs and Cosmetics Act. The licence has been granted by the Director, Ayurvedic Evam Unani Medicines, U. P. Lucknow. In some of the drugs manufactured by the petitioner, it uses Poppy Heads and Codeines. It has also been issued a licence in Form L-1 under the provisions of the Medicinal and Toilet Preparations (Excise Duties) Act,1955 hereinafter referred to as the 1955 Act. The petitioners has also been issued a requisite licence for manufacturing drugs/ayurvedic medicines. It is liable to pay duty under Section 3 of the 1955 Act at the rates specified in the schedule. During the period 1991-92 to 99- 2000, for some unavoidable circumstances, the petitioner did not deposit the excise duty in respect of the following three medicines : (i) Laug Sapistan, (ii) Sharbat Sa Sadar and (iii) Saduri. On coming to know that the excise duty has not been deposited for such a long period by one of its employees the petitioner deposited a sum of Rs. 20 lacs immediately. On 2nd of June, 2000, the petitioner also took action against its erring employee. On 8th of June, 2000, it deposited a further sum of Rs. 20 lacs. The total figure of excise duty in paid/short levied worked out to Rs. 79,86,517. 36. The balance amount of excise duty was deposited by the petitioner within one month thereafter. The District Excise Officer, Ghaziabad had passed an order on 15th of November, 2000 calling upon the petitioner to pay interest @ 18% per annum on the amount of excise duty short paid/short levied under the 1955 Act. The demand of interest has been raised by invoking the provisions of Section 38-A of the U. P. Excise Act, 1910 hereinafter referred to as U. P. Act. The notice of demand dated 15th of November, 2000 is under challenge in the present writ petition.
(3.) WE have heard learned Counsel for the parties. Learned Counsel for the petitioner submitted that under Entry 84 (b) of List-1 of the Seventh Schedule, namely the Union List, the Parliament alone has the power to make law regarding levy of excise duty on Medicinal and Toilet Preparations containing alcohol, opium, Indian hemp and other narcotic drugs and narcotics. The duty in respect of medicinal preparations manufactured by the petitioner is being levied under 1955 Act. The 1955 Act does not contain any provisions of levy of interest on the outstanding amount of excise duty and, therefore, the provisions of Section 38-A of the U. P. Excise Act could not be invoked in the present case.;