1

IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

CIVIL  APPEAL  NO. 3187   OF 2008      (Arising out of SLP(C) No. 7249/2007)

M/S. G.T.C. INDUSTRIES LTD. ... APPELLANT(S)

:VERSUS:

COLLECTOR OF CENTRAL EXCISE AND ORS. ... RESPONDENT(S)

WITH

CIVIL  APPEAL  NO. 3188  OF 2008      (Arising out of SLP(C) No. 8499/2007)

CIVIL  APPEAL  NO. 3189  OF 2008      (Arising out of SLP(C) No. 10100/2007)

O R D E R

1. Leave granted.

2. Appellants herein, inter alia, questioned the constitutionality of Section 9-D

of the Central Excise and Salt Act, 1944.  The High Court by reason of the impugned

judgments and orders has dismissed the writ petitions filed by the appellant(s) on the

premise that some appeals are pending before this Court involving the said question.

Before us,  the learned counsel  appearing on behalf  of  the parties  have placed the

details of the appeals pending before this Court which are:

2

WRIT NO. POSITION IN CEGAT POSITION IN SUPREME COURT

1854/1992 The CEGAT decided the Appeal on merits in favour of

both  the  Petitioner  and  the  job  worker  vide  order

dated 21.3.2001. The Department has filed an Appeal

under  Section  35L  of  the  Central  Excise  Act  1944

before the Hon'ble Supreme Court being Civil Appeal

No.6398-6403/02.

The  Court  has  admitted the  Appeal  without granting any interim stay. Last listed on 27.9.2002.

1895/1992 The CEGAT decided the Appeal on merits in favour of

both  the  Petitioner  and  the  job  worker  vide  order

dated 21.3.2001. The Department has filed an Appeal

under  section  35L  of  the  Central  Excise  Act  1944

before the Hon'ble Supreme Court being Civil Appeal

No. 6398-6403/02.

The  Court  has  admitted the  Appeal  without granting any interim stay. Last listed on 27.9.2002.

1896/1992 The CEGAT in Appeal Nos.5208/92-D and 5233/92-D

confirmed  the  demand  against  the  Petitioner  vide

order  dated  4.3.1997.  The  Petitioner  thereafter  filed

Civil  Appeal  No.5134-35/97  before  the  Hon'ble

Supreme Court against the said order.   

The  Hon'ble  Supreme Court  dismissed  the Appeal  bearing  No.  5134- 35/97  vide  order  dated 12.9.97  for  want  of  pre- deposit (Copies enclosed).  

1897/1992 The CEGAT after  considering  the application under

Section  35F of  the  Central  Excise  Act,  1944  seeking

waiver  of  the  pre-deposit  of  the  Duty  and  penalty

demanded,  dismissed  the  same  and  directed  the

Petitioner  and  the  job  workers  to  deposit  the  same.

Since the Petitioner did not comply with the said order,

the  Appeals  filed  by  them  were  dismissed  for  non-

compliance  of  the  above  order  on  15.7.1994  and

7.2.1996 (Copies enclosed)  1898/1992 The  CEGAT  confirmed  the  demand  against  the

Petitioner  vide  order  dated  4.7.1997.  The  Petitioner

thereafter filed Civil Appeal No. 5134-35/97 before the

Hon'ble Supreme Court against the said order.   

The  Hon'ble  Supreme Court  dismissed  the Appeal  bearing  No.  5134- 35/97  vide  order  dated 12.9.97  for  want  of  pre- deposit.

3

3. None of the aforementioned appeals, it is accepted at the Bar, involve the

question of constitutionality of Section  9-D of the Act; nor having regard to the fact

that the appeals were filed by the Revenue itself, such a question could possibly be

raised.  Furthermore,  such  a  question  as  regards  the  constitutionality  of  a  statute

cannot be raised either before the authorities under the statute, including the High

Court and this Court, while deciding the appeals against the orders passed by the

statutory  authorities/Tribunals,  the  First  Appellate  Court.  The  question  stands

covered by a decision of this Court in  Dhula Bhai vs.  State of M.P., (1968 (3) SCR

662); West Bengal Electricity Regulatory Commission vs. CESC Ltd., (2002 (8) SCC

715) and Alpha Chem vs. State of U.P., (89 STC 304).   

4. Mr. Shekhar, learned senior counsel appearing on behalf of the respondents

has drawn our attention to an order dated 3.1.1995 passed by a Bench of this Court in

Civil Appeal arising out SLP(C) No.21831/1994 which is to the following effect:

“The impugned order dated 5.9.94 has to be read along with

Section 9D of the Central Excise and Salt Act, 1944. So read, there is

no infirmity in the impugned order.

It may, however, be clarified that in case reliance is placed

on the provisions of Section 9D of the Act in respect of any particular

witness,  intimation  of  the  same  is  required  to  be  given  to  the

respondents and it would be open to the respondents to approach the

High Court against the order made by the authority in that behalf.”

4

5. Apart from the fact that by reason of the said order the parties have been

granted  liberty  to  question  the  violation  of  the  said  provision  or  the  question  of

contravention of the said provision in respect of a particular witness, no embargo has

been created thereby to challenge the validity of the said provision by the appellants

before the writ Court or any superior Court.  

6. Mr.  Shekhar  submits  that  it  is  not  a  case  where  the  appellant  should  be

permitted to raise such question in view of the  fact that no cause of action has arisen

therefor.   

7. The  High  Court,  as  noticed  hereinbefore,  did  not  decide  the  question  of

constitutionality  of  the  said  provision,  nor  did  it  determine  the  objection  of  the

respondents that no cause of action had arisen therefor.   

8. We are, therefore, of the opinion that interest of justice would be subserved

if the impugned  judgments are set aside and the matters are remitted back to the

High Court for consideration thereof afresh. We direct accordingly.  

9. The  appeals  are  disposed  of  with  the  aforementioned  observations  and

direction.

10. However, as these matters are pending for a long time, we would request the

High Court to consider the desirability of disposing of the writ petitions, filed by the

appellants, as expeditiously as possible,  preferably within a period of three months

5

from the date of  communication of  this  order.  All  contentions  of  the parties shall

remain open.  

..........................J (S.B. SINHA)

..........................J   (LOKESHWAR SINGH PANTA) NEW DELHI, APRIL 25, 2008.