Oral Judgment: (A.S. Oka, J.)
The question which arises in this Petition is as under:-
“What is the rate of ad-valorem duty of central excise leviable and payable on cranes which were covered under the Heading No.84.26, Sub-heading No.8426 of Chapter 84 of the Central Excise Tariff Act, 1985?”
2. The Petitioner is claiming to be the manufacturer of cranes which were covered under the Tariff Item No.68 of the First Schedule to the Central Excise and Salt Act, 1944 ( hereinafter referred to as “the said Act”). According to the Petitioner, the appropriate rate of duty of central excise leviable on the aforesaid item of cranes was fixed at 12% ad-valorem. In the year 1985, a Bill was introduced in the Parliament with a view to rationalise and simplify the classification of excise on goods. The Bill was introduced under the name of the Central Excise Tariff Act, 1985 ( hereinafter referred to as “the said Act of 1985”). Under the said Bill, the cranes were shown as falling under Chapter 84, Heading 84.26 and Sub-heading No.8426. In the English version of the Bill introduced in the Lok Sabha, the rate of duty payable under the sub-heading 8426 was shown as 12% ad valorem. In the Hindi version of the said Bill introduced in Lok Sabha, the rate of duty was mentioned as 15% ad valorem. The Bill was passed by the Lok Sabha without any amendment. The Bill passed by the Lok Sabha was sent to Rajya Sabha. The Rajya Sabha passed the same without any amendment and returned the same which was sent for assent of the Hon’ble President of India. The assent was received on 18th January, 1986.
3. The said Act of 1985 which was gazetted showed that the rate of duty against the sub-heading 8426 was 15% ad valorem. On 6th March, 1986, the Petitioner filed Classification List effective from 1st March, 1986 in which the cranes were shown as falling under Sub-heading 8426 and the applicable rate of duty as 12% ad-valorem. The Classification List was approved, but, the rate of duty was altered to 15% ad valorem. The Petitioner filed a fresh classification list on 30th March, 1986 showing the rate at 12%. The Petitioner filed a classification list on 7th April, 1986 effective from 1st April, 1986 showing the rate of duty of 12% ad-valorem falling under Subheading 8426. The approval was received by the Petitioners on 11th June, 1986. By letter dated 9th April, 1986, the approved rate of duty effective from 1st March, 1986 was altered to 12% ad-valorem. The Petitioner was served with the show cause notice dated 26th August, 1986 issued by the first Respondent demanding duty amounting to Rs.15,08,034.20 ps in respect of clearance of cranes during the period from 1st March, 1986 to 31st July, 1986. The allegation in the notice was that the duty payable on the cranes was 15% ad valorem and not 12% ad valorem. For the subsequent period also, a show cause notice dated 30th January, 1987 was issued demanding the duty of Rs.2,90,244.75 ps. on the same ground. The order in adjudication was passed by the first Respondent on 8th August, 1987 confirming the demands made under both the show cause notices. The Petitioners being aggrieved by the said order preferred an Appeal before the Collector of Central Excise (Appeals) along with a Stay Application. As the Stay Application was not decided, the present Petition was filed by the Petitioner. Apart from specifically challenging the order in original, the main prayer made in Prayer clause (a) of the Petition reads thus:-
“(a) That this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or direction under Article 226 of the Constitution of India, requiring the Respondents to issue a Notification under the provisions of Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 and maintain the effective rate of duty of excise on the goods “Cranes” falling under Chapter Sub-Heading 8426.00 at 12% ad-valorem pursuant to the premises.”
4. The Petitioner paid a sum of Rs.2 lakhs to the Department under protest and as per the order dated 10th March, 1988 passed by this Court, a sum of Rs.14 lakhs was deposited in this Court which has been invested.
5. There are various orders passed by this Court from time to time. Specific directions were issued by this Court to the Respondents to produce the following documents.
“(i) English copy of the Bill No.202 of 1985 printed for introduction in Lok Sabha.
(ii) Hindi version of the Bill No.202 of 1985 for introduction in Lok Sabha.
(iii) Copy of the Bill No.202-C of 1985, as passed by Lik Sabha on 16th December, 1985.
(iv) The Gazetted copy of the central Excise Tariff Act, 1985 (5 of 1986).
6. There is a reference in the orders of this Court to the correspondence made by the learned Additional Solicitor General of India and the learned counsel appearing for the Respondents. By an order dated 8th September, 2010, this Court again issued a direction to produce the aforesaid four documents as well as the order, if any, passed by the Hon’ble Speaker of Lok Sabha amending the Bill No.202 of 1985. Along with the affidavit dated 12th October, 2010 of R. Sundira Raju, the Assistant Commissioner of Central Excise, Kalyan-IV Division, certain documents were filed in compliance with the aforesaid order of the Court. The first document produced is the English version of Bill No.202 of 1985. The said English version shows the rate of duty as 12% ad-valorem against the Sub-heading 8426. The second document produced is the Hindi version of the Bill No.202 of 1985 which was passed by the Lok Sabha against in which against the Sub-heading 8426, the rate of duty shown is 15% ad-valorem. The third document produced is a copy of the Bill No.202-C of 1985 as passed by the Lok Sabha on 16th December, 1985. In the said Bill, against the Sub-heading 8426, the rate of duty is shown as 15% ad-valorem. The procedure followed has been set out in a communication annexed to the said affidavit. The communication is by the Joint Secretary of Lok Sabha. It is stated that in the English version of the Bill introduced in Lok Sabha, due to printing mistake, the rate of 12% was shown but Hindi version showed the rate of 15%. The English version of the Bill was circulated with the said mistake and was introduced in the Lok Sabha. It is further stated that after introduction of the Bill, an advance copy of the English version of the Bill was prepared and sent to the Legislative Department for scrutiny. After it was sent for scrutiny, the Draftsman changed the rate of duty from 12% to 15% against the sub-heading 8426 in English version. He corrected the mistake which should have been corrected at the earlier stage. As per the established practice, if the Draftsman makes any changes in the Bill “as passed by the Lok Sabha,” he has to point out the changes in the forwarding note so that the forwarding note can put up before the Hon'ble Speaker who can correct the patent error as per Rule 95 of the Rules of Procedure. Without mentioning the changes made in the forwarding note, the Bill running into 240 pages in which change was effected by the Draftsman was sent to the Government of India Printing Press for printing copies of the Bill as passed by the Lok Sabha. Therefore, the printed copy of the English version of the Bill as passed by the Lok Sabha showed the rate of 15% against the Sub-heading 8426. The said copy of the bill was transmitted to the Rajya Sabha. The Rajya Sabha returned the Bill which contained rate of 15% against the Sub-heading 8426 without any recommendation. The same Bill was submitted by the Secretariat of the Lok Sabha to the President for assent and accordingly the assent was received on 19th January, 1986. In short, it is stated that the correction which was carried out by the Draftsman was not put up before the Hon’ble Speaker for acceptance as a patent error.
7. The submission of the learned senior counsel appearing for the Petitioner is that in view of the Article 348 of the Constitution of India, the language of the Bill presented in the Parliament is always English. He submitted that what was passed by the Lok Sabha was a Bill in which the rate of duty was mentioned as 12% ad-valorem and not 15% ad-valorem. He submitted that after the English version of the Bill containing duty of 12% was passed by the Lok Sabha, while sending the Bill as passed by the Lok Sabha to the Rajya Sabha, a Draftsman of the Legislative Department carried out the change without bringing the change to the notice of the Hon’ble Speaker and the Hon’ble Speaker did not accept the said error as a patent error. The Hon’ble Speaker did not authorize the error to be corrected. He submitted that though in the Affidavit dated 16th August, 1988 filed on behalf of the Respondents, it was suggested that the Hon’ble Speaker had corrected the rate of duty, now the latest affidavit dated 12th October, 2010 clearly records that the said change made by the Draftsman was not even brought to the notice of the Hon’ble Speaker. He submitted that by virtue of the Article 348, the authoritative texts of all the Bills to be introduced in both the Houses are required to be in English. He submitted that the authoritative text of the Bill which was passed by the Lok Sabha contained rate of duty as 12% ad-valorem. He submitted that thus the bill was passed by the Lok Sabha in which duty mentioned under the relevant Sub-heading is 12% ad-valorem which was unauthorisedly and illegally changed to 15% by a Draftsman without authority of the Hon’ble Speaker. He submitted that the said Bill was a money Bill within the meaning of Article 109 of the Constitution of India. The role of Lok Sabha was important in as much as the Rajya Sabha could have only made recommendations while sending back the Bill to Lok Sabha and the Lok Sabha was not bound to accept the said recommendations. He submitted that the bill which was passed by the Lok Sabha containing the rate of duty at 12% must be accepted as a Bill passed by both the Houses. He submitted that what is passed by the requisite majority of the Lok Sabha is the Bill containing the rate of duty as 12% ad valorem against the Sub-heading 8426. He submitted that the rate of 12% mentioned in the said Act of 1985 published in the Official Gazette is illegal inasmuch as the rate which was approved by the Lok Sabha was 12% . The Bill passed by the Lok Sabha shall be treated as passed. The learned Senior Counsel relied upon a decision of the Apex Court in the case of Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd. and Ors., (AIR 2009 SC 2337). He also placed reliance on a decision in the case of Nityanand Sharma and another v. State of Bihar and Others ( AIR 1996 SC 2306).
8. The learned counsel appearing for the Respondents submitted that there is a mere irregularity crept in because of the printing mistake in the English version of the Bill introduced in the Lok Sabha. He submitted that the Hindi version of the Bill contains the correct rate of 15%. He submitted that the said procedural error was corrected by the Draftsman before sending the Bill as passed by the Lok Sabha for printing. He submitted that the Bill as passed by the Lok Sabha submitted to Rajya Sabha contains the rate of duty of 15% in both English and Hindi versions. The said Bill was returned without any suggestion by Rajya Sabha which was sent to the Hon’ble President who gave assent to it. He submitted that in view of the Article 122(1) of the Constitution of India, the validity of the proceedings before the Parliament cannot be questioned on the ground of the alleged irregularity of procedure. He relied upon an unreported decision of a Division Bench of this Court dated 2nd September, 2011 in Writ Petition No.1261 of 2009. He, therefore, submitted that no interference is called for.
9. We have carefully considered the submissions. It will be necessary to make a reference to the last Affidavit of the Respondents dated 12th October, 2010. To the said Affidavit, a factual note prepared by the Joint Secretary of the Lok Sabha has been annexed. The relevant part of the said note reads thus:-
“In the instant case, the proof copies of the English and Hindi version of Bill forwarded by the Ministry of Law to the Lok Sabha Secretariat contained the tariff @ 15% against the sub heading No.8426.00. The proofs were sent for printing by the Lok Sabha Secretariat. At the time of printing some mistakes took place at the Press. Consequently, while the Hindi version of the printed Bill showed the tariff @ 15%, the printed copy of the English version, to be introduced in Lok Sabha, showed the tariff @ 12%. As per usual practice, printed copies of English and Hindi versions were sent to the Legislative Department and the Official Languages Wing, respectively, of the Ministry of Law for scrutiny. The Draftsman, Legislative Department, did not make any change in the tariff rate of 12% against subashheading No.8426.00 in the English version of the Bill. Therefore, the errata to English Bill circulated along with the Bill also did not refer to the aforesaid tariff rate. Thus, the Hindi version of the Bill carried duty @ 15% while the English version carried duty @ 12% against sub heading No.8426.00. After introduction, the advance copy of the English Bill, as passed by Lok Sabha, was prepared and sent to Legislative Department for scrutiny. At this stage, the Draftsman changed the tariff rate from 12% to 15% against sub heading No.8426.00 in the English version thereby correcting the mistake which he was supposed to correct when the printed copy of the English Bill, to be introduced in Lok Sabha, was sent to him for scrutiny. As per established practice, if the Draftsman makes any changes in the “As passed by Lok Sabha” copy of the Bill, he has to clearly indicate those changes in his forwarding note so that such changes may be put up to the Hon'ble Speaker for being accepted as patent errors, if permissible. However, the Draftsman, while returning the advance copy of the Bill “As passed by Lok Sabha” did not reflect the change made by him. The Bill was quite bulky running into as many as 240 pages and the change was carried out by the Draftsman at page No.190. Presuming that the Draftsman had no suggestions to make for incorporating in the Bill by treating them as patent errors, the scrutinised copy of the said English Bill was sent to the Government of India Press for printing copies of the Bill, as passed by Lok Sabha. Consequently, the printed copy of the English version of the bill, as passed by Lok Sabha, also carried the duty @ 15% and was transmitted to Rajya Sabha. As the Bill was Money Bill, the Rajya Sabha returned the Bill which carried duty @ 15% against sub-heading No.8426.00 without any recommendation. The same Bill, as passed by the Houses was submitted by this Secretariat to the President for his assent and received assent of the President on 19.1.1986.”
(Underlines supplied )
10. What is stated in the said note has been reiterated in the Affidavit. Thus, the factual position which emerges from the aforesaid discussion can be summarized as under:-
(i) In the original English text of the Bill forwarded to Lok Sabha Secretariat the rate of 15% was incorporated against Subheading 8426. While printing the Bill, the said rate was wrongly printed as 12%.
(ii) The Bill No.202 of 1985 was introduced in Lok Sabha both in English and Hindi versions.
(iii) The English version mentioned the relevant rate of duty at 12% and Hindi version incorporated the rate of duty at 15%.
(iv) After the Bill was passed by the Lok Sabha, the Draftsman of the Legislative Department carried out correction in the English version by substituting 15% for 12%.
(v) The fact of carrying out correction of inadvertent mistake in the English version by the Legislative Department was not brought to the notice of the Hon'ble Speaker of Lok Sabha.
(vi) The corrected English version was sent to the Government of Indian Press for printing which contains rate of duty at 15% and the said version was sent to Rajya Sabha. The Rajya Sabha returned the corrected version of the Bill without any recommendation.
(vii) The corrected Bill was submitted to the Hon'ble President of India for assent which received the assent of Hon'ble President of India on 19th January, 1986.
11. At this stage, it will be necessary to make a reference to certain provisions of the Constitution of India. Article 120 of the Constitution of India provides thus:-
“120. Language to be used in Parliament.-
(1) Notwithstanding anything in Part XVII, but subject to the provisions of article 348, business in Parliament shall be transacted in Hindi or in English:
Provided that the Chairman of the Council of States or Speaker of the House of the People, or person acting as such, as the case may be, may permit any member who cannot adequately express himself in Hindi or in English to address the House in his mother-tongue.
(2) Unless Parliament by law otherwise provides, this article shall, after the expiration of a period of fifteen years from the commencement of this Constitution, have effect as if the words “or in English” were omitted therefrom.”
12. In this context, a reference will have to be made to Article 348 of the Constitution of India which reads thus:-
“348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc.-
(1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides --
(a) all proceedings in the Supreme Court and in every high Court,
(b) the authoritative texts –
(i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,
(ii) of all Acts passed by Parliament or the Legislature of a State and of all ordinances promulgated by the President or the Governor of a State, and
(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.
(2) Notwithstanding anything in sub-clause (a) of clause (1), the governor of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State:
Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.
(3) Notwithstanding anything in sub-clause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or byelaw referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.”
13. Article 120 lays down that subject to the provisions of Article 348 of the Constitution of India, the business in Parliament shall be transacted in Hindi or English. Article 120 has been given overriding effect over the provisions of Part XVII which deals with the official languages but it is made subject to Article 348 of the Constitution of India. Thus, Article 348 will have to be read as an exception to Article 120. The exception is that the authoritative texts of all the Bills passed by the Parliament shall be in English language. In the facts of the present case, the authoritative text in English language of the said Act of 1985 passed by the Lok Sabha shows the rate of duty at 15% ad valorem against the sub-heading 8426. The said authoritative printed text of the English version of the Bill passed by Lok Sabha which was forwarded to Rajya Sabha and which was returned by Rajya Sabha without any recommendation also contains the identical provision. Thus, what was forwarded to Rajya Sabha was the Bill in which the ad valorem duty against the sub-heading 8426 is shown as 15%. It is the said Bill which has received assent of the Hon'ble President of India.
14. The learned counsel appearing for the Petitioner relied upon the decision of the Apex Court in the case of Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union v. Srinivasa Resorts Ltd. and Ors. (supra). This was a case where the Petitioner before the High Court contended that Section 47(3) and Section 47(4) of the Andhra Pradesh Shops and Establishments Act, 1988 were unconstitutional. The said contention was accepted by the High Court. The Apex Court held that as the said State Act and the Central Act operated in the same field, there was a conflict between the two. An argument was canvassed that the assent was granted by the Hon'ble President of India to the State Act. The Apex Court observed that unless it was shown that while obtaining the Presidential assent to the State Act, the conflict between the two Acts was specifically brought to the notice of the Hon'ble President, the State Government cannot rely on the escape route provided by Article 254(2) of the Constitution. The submission of the learned counsel appearing for the Petitioner is that it was not brought to the notice of the President that in the English version of the Bill passed by Lok Sabha, the ad valorem duty payable against the concerned item was shown at 12%. He submitted that the Bill which was passed by Lok Sabha shows that the ad valorem duty was 12% and the Bill being a Money Bill, the decision of the Lok Sabha will prevail.
15. The learned counsel appearing for the Petitioner relied upon a decision of the Apex Court in the case of Nityanand Sharma and another v. State of Bihar and Others (supra). He relied upon the following observations of the Apex Court in Paragraph 18 which reads thus:-
“18. Article 348(1)(b) of the Constitution provides that notwithstanding anything in Part II (inc Chapter II Articles 346 and 347 relate to regional languages) the authoritative text of all bills to be introduced and amendments thereto to be moved in either House of Parliament....of all ordinances promulgated by the President.........and all orders, rules, regulations and bye laws issued under the Constitution or under any law made by the Parliament, shall be in the English language. By operation of sub-article (3) thereof with a non obstante clause, where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the governor of the State or in any order, rule, regulation or bye law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the governor of the State in the official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article. It is the authoritative text. When the the Schedules were translated into Hindi, the translator wrongly translated Lhara as Lohar omitting the word 'a' while Lohra is written as mentioned in English version. It is also clear when we compare Part XVI of Second Schedule relating to the State of West Bengal, the word Lohar both in English as well as in the Hindi version was not mentioned. Court would take judicial notice of the Acts of parliament and would interpret the Schedule in the light of the English version being an authoritative text of the Act and the Second Schedule.”
16. In the facts of the case in hand, the authoritative text which is published of the Bill passed by Lok Sabha is a corrected version which specifies the rate of duty as 15% ad valorem against the concerned subheading. The authoritative text of the Act which received the assent also contains the same rate. The note of the Joint Secretary shows that the proof copies of English and Hindi versions of the Bill forwarded by Ministry of Law to Lok Sabha contained rate of 15% ad valorem against the Sub-heading 8246. Mistake occurred while printing the Bill by Lok Sabha Secretariat before introducing the same in the House. The only flaw is that while correcting the mistake which had crept in the English version of the Bill introduced before the Lok Sabha, there was no specific order of the Hon'ble Speaker obtained for accepting the error as patent error. Under Rule 95 of the Rules of Procedure, the Hon'ble Speaker has power to correct the patent error in the Bill passed by Lok Sabha. In the present case, admittedly, there is no such specific order of the Hon'ble Speaker of rectification of the error.
17. At this stage, a reference will have to be made to Article 122 of the Constitution of India which reads thus:-
“122. Courts not to inquire into proceedings of Parliament.-
(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.”
18. In the present case, the irregularity is to the extent of failure to bring the correction of the obvious printing error to the notice of the Hon'ble Speaker to enable the Hon'ble Speaker to exercise the power under Rule 95. Article 212 makes a similar provision regarding validity of the proceedings of the Legislature of the State. Clause (1) of Article 212 was dealt with by Constitution Bench of the Apex Court in the case of M.S. M. Sharma v. Dr. Shree Krishna Sinha and Others, (AIR 1960 SC 1186). In Paragraph 10, the Apex Court has observed thus:-
“10. …..It must also be observed that once it has been held that the Legislature has the jurisdiction to control the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with complete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may not have strictly complied with the requirements of the procedural law laid down for conducting its business, that cannot be a ground for interference by this Court under Art. 32 of the Constitution. Courts have always recognised the basic difference between complete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a ground for issuing a writ under Art.32 of the Constitution.”
(Underline added)
19. Article 122 of the Constitution of India has been considered by the Apex Court by its Constitution Bench in the case of Ramdas Athawale v Union of India and Others, [(2010)4 SCC 1]. In Paragraph 36, the Apex Court observed thus:-
“36. This Court Under Article 143, Constitution of India, In re (Special Reference No.1 of 1964) AIR 1965 SC 745:(1965)1SCR 413 ( also known as Keshav Singh case 2) while construing Article 212(1) observed that it may be possible for a citizen to call in question in the appropriate court of law, the validity of any proceedings inside the legislature if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. The same principle would equally be applicable in the matter of interpretation of Article 122 of the Constitution.”
20. In the present case, the Hindi version of the Bill presented before the Lok Sabha contained the correct rate of 15%. The printed version in English and Hindi of the Bills passed by Lok Sabha forwarded to Rajya Sabha contained the correct rate of 15%. The assent of the Hon’ble President of India has been received to the Bill which contains the rate of 15%. Failure to obtain sanction of the Hon’ble Speaker under Rule 95 of the Rules of Procedure in the facts of this case is thus only a procedural defect. There is no illegality attached to it. At highest, there is an irregularity of the procedure. Therefore, bar of Article 122(1) of the Constitution of India will be squarely attracted in the present case.
21. At this stage, the learned counsel appearing for the Respondents invited attention of the Court to Clause (5) of Order dated 27th July, 2010 passed by the Division Bench of this Court. He submitted that the direction to pay costs may be recalled. This request cannot be acceded to inasmuch as the orders passed by this Court from 13th July, 2006 onwards show that there was failure on the part of the Respondents to produce relevant documents. The correspondence on record shows that even no heed was paid to the correspondence made by the learned Additional Solicitor General of India. Therefore, we are not inclined to revoke the said order of payment of costs.
22. There is no merit in the challenge to the impugned order.
In the result, the Petition must fail and we pass the following order:
ORDER:
The Petition is rejected. The Rule is discharged with no orders as to costs. The first Respondent shall be entitled to withdraw the amount deposited in this Court with interest accrued thereon on expiry of period of three months from today.