Holding

Jute yarn is covered by the scheduled industry, intermediate products are liable to cess, the cess may be levied by weight within the ceiling, and the 1982 amendment of Central Excise Rules applies to the Jute Manufactures Cess Rules.

Summary

The Barnagore Jute Factory and other jute manufacturers challenged the levy of a cess on jute yarn and twine under the Industries (Development and Regulation) Act, 1951, arguing that jute yarn was not covered by Heading 23(2) of the First Schedule, that intermediate products could not be taxed, and that the cess could only be levied ad valorem, not by weight. The Government contended that the sub‑heading was inclusive, that the cess was a form of excise duty applicable to all goods produced in a scheduled industry, that weight‑based levy was permissible, and that the 1982 amendment of Central Excise Rules 9 and 49 applied to the Jute Manufactures Cess Rules, 1976. The Supreme Court held that jute yarn falls within the scheduled industry, intermediate products are liable to cess, the cess may be levied by weight provided the ceiling in the proviso is respected, and the retrospective amendment of the Central Excise Rules is incorporated into the Cess Rules. Consequently, the manufacturers' appeals were dismissed and the Department's appeal was allowed.

Issues considered

Whether jute yarn is included within Heading 23(2) of the First Schedule of the Industries (Development and Regulation) Act, 1951.
Whether intermediate products such as jute yarn, captively consumed in the same factory, can be subject to cess under Section 9.
Whether Section 9(1) permits levy of cess only on the basis of value (ad valorem) or also by weight.
Whether the 1982 retrospective amendment of Central Excise Rules 9 and 49 is applicable to the Jute Manufactures Cess Rules, 1976.
Whether Rule 3 of the Jute Manufactures Cess Rules is legislation by reference or mere reference, affecting the applicability of subsequent amendments.
Whether Section 30 of the Act authorises rule‑making with retrospective effect.

Legislation cited

Central Excise Act, 1944s. Explanation to 9(1) (as incorporated)
Central Excise and Salt Act, 1944
Central Excise Ruless. 49, s. 9
Central Excise Tariff Act, 1985
Finance Act, 1982s. Amendment to Rules 9 and 49
Industries (Development and Regulation) Act, 1951s. 30, s. 9(1), s. Explanation to 9(1)
Jute Manufactures Cess Rules, 1976s. Rule 2, s. Rule 3

Subjects

jute industrycessexcise dutyintermediate productscheduled industryweight based levyrule makingretrospective amendmentcentral excise

Judgment

BARNAGORE JUTE FACTORY CO. ETC. ETC. A
V.
INSPECTOR OF CENTRAL EXCISE AND ORS. ETC. ETC.

DECEMBER 3, 1991

[ P.B. SAWANT AND B.P. JEEVAN REDDY, JJ.] B

Industries (Development and Regulation) Act, 1951-Sections 9(1) and
Explanation 3(d), (1) and 30, and First Schedule-Heading 23(2)-Jute yarn
manufactured or produced by jute textile industry, as intermediate product.for
captive consumption in the same industrial unit for manufacturing jute tex-
tile-Whether goods m_anufactured in a scheduled industry-Whether exigible C
to cess-Whether levy of cess, a duty of excise-Whether cess could be levied
by weight-Notification levying cess with reference to weight-Validity of

Jute Manufactures Cess Rules, 1976--R.ule-Application of Central Ex-
cises and Salt and Rules, 1944 in relation to levy and collection of Cess-
Retrospective amendment of Rules 9 and 49 of the Central Excise Rules in D
1982-Whe~her applicable to levy and collection of cess under section 9 of the
Industries (Development and Regulation) Act, 1951-Whether Cess Rules a
legislation by incorporation or by reference.

Section 9(1) of the Industries (Development and· Regulation) Act,
1951 provided for the levy of cess on an goods manufactured or produced E
in ~he industries specified in the First Schedule to the Act at the rate/rates
notified by the Central Government in that behalf. Jute Textile Industry
was one of the industries specified in the First Schedule. By order No.
S.0.141(2), the Central Government specified the class of goods manufac-
tured or produced in the schedule industry of textiles and also the rate of F
cess on each of the "goods. Jute textile and jute yarn were both subjected
to cess among other goods. Rule 2(0 of Jute Manufactures Cess Rules,
1976, made by the Central Government under Section 30 of the Act, by
Notification dated 18th February, 1976 defined jute manufactures as
manufactures of jute, including twist-yarn thread, rope and twine, all
sorts etc. and by Rule 3, the provisions of the Central Excises and Salt Act G
and the rules made thereunder were made applicable in relation to levy
and collection of cess from the jute manufacturers as they applied in
relation to levy and collection of duty of excise on jute manufacturer under
the Central Excises and Salt Act.

The appellant-company was engaged in manufacture of jute prod- H

95
96 SUPREME COURT REPORTS (1991) SUPP. 3 S. C.R.

A ucts like jute twine, yarn, sacking, carpet backing etc. Jute Twin~ and Jute
Yarn, manufactured by them was used in their own establishment for
manufacturing other (finished) products.

Notices were issued to the appellant-company and otber jute manu-
facturers, to pay the cess at the specified rate on their products, including
B jute twine and jute yarn, produced in their units. Several jute manufac-
turers filed Writ Petitions in the High Court, challenging the levy of cess. I,._
I .
The Writ Petitions were dismissed by the High Court.
,_'
Hence, the Jute manufacturers, filed appeals before this Court. The
Department also filed an appeal by special leave. Writ Petitions were also
C filed by other Jute manufacturers questioning the notifications and the
notices calling upon the jute manufacturers to pay the cess.

On behalf of the Jute manufacturers it was contended that Jute yarn
was not one of the products mentioned in Heading 23 of the First Schedule
to the Act, though jute twine and jute rope were expressly mentioned, that
D though yarn was specifically mentioned in all other sub-headings, it was
omitted under sub-heading (2), and hence, jute yarn was out of the )

purview of the Act, that the cess could not be levied on intermediate
products, but could be levied only on the final produclc;; that a reading of
section 9(1) showed that the levy of cess had to be with reference to the
value of the product (ad valorem) and that the notificafion in question
E levied the cess by weight, which was not permissible and could not have _.... t
been contemplated by Sub-section (1) of Section 9, as was evident from a
reading of the proviso; and such a levy (by weight) brought about an
unequal and anamolous consequence in that coarse jute products having
lower value were subjected to higher cess than finer· quality jute textiles,
that until the amendment of Rules 9 and 49 of the Central Excise Rules,
F
by Finance Act, 1982, with retrospective effect from February, 1944, they
provided for levy of excise duty only at the stage of removal, which meant
that intermediate products which were captively consumed in the same
factory could not be said to have been removed and, therefore, did not
attract excise duty and this was the position when Rule 3 of the Cess Rules
G was made; and consequently, these goods could not also be subjected to the
cess under Section 9 of the Industries (Development and Regulation) Act,
1951, and tlrnt it was a case of legislation by reference, and hence
subsequent amendments and alterations made in the other enactment or
Rules did not ipso facto g,et imported into the Cess Rules; and the imported
provisions continued in the same form irrespective of any change that
H may have been effected in the Central Excise Act of the Rules made
BARNAGORE JUTE FACTORY v. CENTRAL EXCISE 97

_..., thereunder; and that since section 30 of the Act did not confer upon the A
-y rule-making authority the power to make rules with retrospective effect,
the retrospective amendment of Rules 9 and 49 of the Central Excise Rules
could not be read into the Cess Rule.

On behalf of the Department it was contended that sub-heading (2)
of Heading 23 of the First Schedule to the Act was inclusive in nature and B
must be deemed to take in jute yarn, that the well-settled principle under
the provision of Central Excise Act that duty could be levied on interme-
diary projects as well, even though captively consumed within the same
factory or premises, also applied to Cess levied under Section 9 of the
Industries (Development and Regulation) Act which was really a duty of
excise, though levied and collected as a cess; that Rule 3 of the Jute c
Manufa{'.tures Cess Rules was not a case of legislation by reference, but a
case of mere reference and; therefore, the amendments and changes made
in the Central Excise Act and the rules made thereunder were equally
applicable for the purpose of levy and collection of cess, that th~ Act did
not prohibit levy of cess by weight, and according to the schedules to the
Central Excise Act, 1944 as well as the Central Excise Tariff Act, 1985, D
excise duty was levied on jute yarn only by weight, and the same principle
had been followed under the Industries (Development and Regulation)
'· Act, both for the sake of convenience and simplification, and that the levy
in question did not infringe the ceiling prescribed by the proviso to sub-
section (1) of section 9.
E
Dismissing the appeals and writ petitions of the Jute Manufacturers
and allowing the appeal of the Department, this Court,

HELD : 1.1 The opening words of the First Schedule to the Indus-
trial (Development and Regulation) Act, 1956, are "any industry engaged
F
in the manufacture or production of any of the articles mentioned under
each of the following heads or sub-heading namely .......". Heading 23 in the
Schedule reads, "Textiles (including those dyed, printed or otherwise
processed)". There are five sub-headings. They deal with cotton, jute,
wool, silk and synthetic/artificial fibres respectively. Sub-heading (2) read
alongwith the main heading would read as follows : "Textiles, made G
wholly or in part of Jute including jute twine and rope." This sub-heading
must be read alongwith Section 9 of the Act which em-powers the Central
Government to levy cess "on all goods manufactured or produced in any
such scheduled industry". [107 F-H]

1.2 In the instant case, the appellants/petitioners are manufacturers H
98 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A of jute textiles-broadly speaking-among other jute products. It is an ...,
indisputable fad that in their factories, jute yarn is first produced and '<
then it is consumed in manufacture of jute textiles. Jute yarn is a product
known to market. It is, thus, an interme_diate product, which may. be
captively consumed in the appellants'fpetitioners' very factories. There·
fore, it cannot be said that jute yarn is not "good manufactured or pro-
B duced" in their industries. No significance could be attached to omission
of word 'yarn' in the sub-heading (2) when the First Schedule was :.
substituted in \1956. As held by this Court in 1-larakchand v. U.01., the
schedule to the Act is "a mere enumeration and group of various items"
and is not based on a scientific or logical scheme. In this connection, it may
be noticed that the definition of jute manufactures under Rule 2(t) of Jute
C Manufactures Cess Rules, 1976, is not only inclusive, but also specifically
includes jute, yarn, thread, rope and twine, all sorts. [108 A-B, 104E]

1.3 It is not correct to say that the aforesaid interpretation would
lead to an anomalous situation, viz. while the jute yarn industry would not
be within the purivew of the Act, i.e. it would not be subject to control and
D regulation provided by the Act, its products would be liable to cess under
section 9. It is not the case of any of the appellants/petitioners that any of
them is engaged in the production of jute yarn alone. All of them are
engaged in manufacture of jute textiles and are, t.herefore, scheduled
industr~es. The argument is an hypothetical one. [108 D-E]

E 1.4 It is also not correct to say that intermediate products of a
scheduled industry cannot be subjected to cess on the ground that it would
amount to multi-stage levy. Section 9 speaks of levy on all goods manufac-
tured or produced in a scheduled industry. Jute yarn is goods known to
market. Therefore, they are goods manufactured in a scheduled industry
The fact that such yarn is captively consumed in the manufacture of jute
F textiles is of no relevance. [108 F]

1-larakchand v. Union of India, [1970) S~C. [1453] at 1461; J.K.Cotton
Spinning & Weaving Mills v. Union of India, [1988] 1 S.C.R. 700, referred
to.
G
1.5 It is also not true to say that Rules 9 and 49 of the Central Excise
Rules, as they stood before the 1982 amendment, did not permit levy of
duty on captively consumed goods. [109 BJ

J.K.Cotton Spinning & Weaving Mills v. Union ofIndia, [1988) i S.C.R.
H 700, referred to.
BARNAGORE JUTE FACTORY v. CENTRAL EXCISE 99

2.1 Though levied and collected as a cess, the imposition under A
Section 9 of the Industries (Development and Regulation Act, 1951 is a
duty of excise. Section 9 says so in so many words. The explanation to sub-
section (1) of Section 9 defines the expression 'value' in practically the
same terms as it is defined in the Central Excise Act. [109 D]

2.2 According to Rule 3 of the Jute Cess Manufactures Rules, the B
provisions of the Central Excise Act and Rules are applicable in the matter
of levy and collection of the cess in the same manner as they apply in
relation to levy an~ collection of excise duty on jute manufactures. The
~ language of the Ru'le indicates a continuing applicability of the provisions
of the (:entral Excise Act and the Rules. What was levied was a 'duty of
excise' and it was to be levied and coilected in accordance with the C
provisions of the Central Excise Act and the Rules. The effect is as if the
words "for the time being in force" were there after the words "the
provisions of Central Excises and Salt Act, 1944(1 of 1944) and the Rules
made thereunder" in Rule 3. Therefore, the amendment of Rule 9 and 49
made in 1982 (with retrospective effect from 1944) is equally applicable in
the matter of levy and collection of cess under the Act, and it is not correct D
.;' to say that this is a case of legislation ·by reference or that subsequent
amendment and alterations made in the other enactment or Rules did not
ipso/ado get imported into these Rules. [109 E, 110 D-E, 106 E]

J.K.Cotton Spinning & Weaving Mills v. Union ofIndia, [1988] 1.S.C.R.
700; Mahindra & Mahindra v. Union of India & Another, [1979] 2 S.C.R. E
1038; Bhatinda Improvement Trust v. Balwant Singh, [1991] 4 S.C.C. 368,
referred to.

3.1 It is not possible to agree that according to Section 9, the cess can
be levied on the basis of value alone and on no other basis. The main limb
of Section 9(1) does not indicate any particular basis for levy of cess. It is
F
only the proviso which says, "no such rate shall in any case exceed two
annas percent of the value of the goods." There is no warran.t to read the
proviso into the main limb and on that basis, hold that Section 9(1)
contemplates levy of cess only ad valorem or for restricting the amplitude
of the words used in the main limb of Section 9(1). It is not necessary to G
do so for giving effect to the proviso. The proviso can be respected and _
given effect to even without reading such restriction into the main limb of
Section 9(1). It is open to the Central Government to adopt such basis as
they may think appropriate for levy of cess, so long as such levy does not
violate the ceiling prescribed by the proviso. The Central Excise Act levies
duties not only ad valorem but in several other ways. (110 H, 111 A-CJ H
100 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 3.2 Under the schedule to the Central Excise Act, jute was taxed with
reference tO weight. So also was jute yarn : vide entry 22-A and 18-D of "'"
the Schedule. Even the 1985 Act taxes jute and jute yarn by weight alone.
The nature of the cess imposable under Section 9 is really that of duty of
Central Excise. Evidently, for that reason, the principle obtaining under
the Central Excise Act has been adopted by this Act in the matter of levy
B of cess. [110 G]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2714-16 of
1981 etc. etc.

From the Judgment and Orper dated 25.6.1981 of the Calcutta High
C Court in F.M.A.T. Nos. 2438-2440 of 1978.

V.R. Reddy, Dr. V. Gauri Shankar, Harish Salve, Suman Khaitan;· D.N.
Gupta, P.K.Ghosh, H.K.Puri, Ms. A. Subhashini, K.C.Diwan, P. Parmes-
waran, A. Subba Rao, T.V.S.N. Chari, S. Ganesh, P.K.Pillai and Manoj Arora
for the appearing parties.
D
The Judgment of the Court was delivered by

B.P. JEEVAN REDDY, J. Common questions arise in this batch of
Civil Appeals and the Writ Petition. All the appeals except one arise from the
judgment of Calcutta High Co'urt dismissing the Writ Petitions filed by the
E · appellants. Civil Appeal 4823/91 (Special Leave Petition No. 5466of1980) is
preferred by the Inspector of Customs and Central Excise (State) against the
judgment of the Patna High Court allowing the Writ Petition filed by the
respondent, Rameshwar Jute Mills Limited. Writ Petition No. 9701of1982 is
filed under article 32 of the Constitution by a Jute Mill questioning the
notifications and notices issued by the respondents whereunder it was called
F
upon to pay cess on jute yam and twine. So are the other Writ Petitions. For
the _sake of convenience, we shall refer to the facts in Civil Appeal No. 2439
of 1979 and to the facts in Civil Appeal arising from Special Lea.ve Petition No:
5466 .of 1980. During the arguments before us, facts of these two cases alone
were referred.
G
The appellant in Civil Appeal No. 2439of1979, New Central Jute Mills
Company Ltd., is a company engaged in manufacture of jute products like jute·
twine, yam, sacking, carpet backing etc. Jute '.fwine and Jute Yam, manufac-
tured by them is used in their own establishment for manufacturing other (fin-
ished) products. In other ·words, jute twine and jute yarn are intermediate ·
.
t

H products which are captively consumed in the same unit for manufacturing the
end products which fall within the expression 'jute textiles'.
BARNAGORE JUTE FACTORY v. CENTRAL EXCISE [REDDY, J.) 101

Jute Textile Industry is one of the Industries specified in the First A
Schedule to the Industries (Development and Regulation) Act, 1951 (hereinaf-
ter referred to as the 'Act'). The Act, as is well known, was enacted in 1951
to provide for the development and regulation of certain industries. Section 2
of the Act conlflins a declaration to the effect "that it is expedient in the public
interest that the Union should take under its control the industries specified in
the First Schedule". Heading No. 23 in the First Schedule reads as follows: B

"23. TEXTILES (INCLUDING THOSE DYED, PRINTED OR OTH-
~ ERWISE PROCESSED) :

(1) Made wholly or in part of cotton, including cotton yarn, hosiery
and rope. c
(2) Made wholly or in part of Jute, including jute twine and rope.

(3) Made wholly or in part of wool, including wool tops, woollen yarn,
hosiery, carpets and druggets;
D
(4) Made wholly or in part of silk, including silk yarn and hosiery;

(5) Made wholly or in part of synthetic, artificial (man-made) fibres;
including yarn and hosiery of such fibres."

(emphasis added) E'

P. Section 3 of the Act defines certain expressions. For our purpose, it is
sufficient to notice the definitions of"lndustrial undertaking" in clause (d) and
of "Scheduled Industry" in· clause (i). They read as follows :
F
(d) "industrial undertaking" means any undertaking pertaining to a
scheduled industry carried on in one or more factories by any
person or authority including Government;

(i) "scheduled industry" means any of the industries specified in
the First Schedule." G

The Act contains several provisions designed to promote and regulate the
~chcduled industries and their products. Section 6 provides for establishment
and constitution of Development Councils and their functions. It empowers the
Central Government io establish a Development Council for any scheduled
industry or group of scheduled industries. Such Development Council has to H
102 SUPREME COURT REPORTS [1991) SUPP. 3 S. C. R.

A perform such functions of a kind specified in the second schedule as may be ~ _____
assigned to it by the Central Government. Section 9 provides for levy of a cess
which, after collection, is made over to the Development Council established
under Section 6. The Development Council has to utilise the said fund for
promoting scientific and industrial research with reference to such industry and
take measures for promoting the interests of such industry. It will be appropri-
B ate to set out Section 9 in its entirety :

"9. - Imposition of cess on scheduled industries in certain cases-(1)
· There may be levied and collected as a cess for the purposes of this
Act on all goods manufactured or produced in any such scheduled
industry as may be specified in this behalf by the Central Govern-
c ment by notified order a duty of excise at such rate as may be
specified in the notified order, and different rates may be specified
for different classes of goods:

Provided that no such rate shall in any case exceed two annas per
cent of the value of the goods.
D
Explanation. -In this sub-section, the expression "value" in relation
to any goods shall be deemed to be the wholesale cash price for
which such goods of the like kind and quality are sold or are
capable of being sold for delivery at the place of manufacture and
at the time of their removal therefrom, without any abatement or

·-
E deduction whatever except trade discount and the amount of duty
then payable.

(2) The cess shall be payable at such intervals, within such time
and in such manner as may be prescribed, and any rules made in
this behalf may provide for the grant of a rebate for prompt
F payment of the cess.

(3) The said cess may be recovered in the same manner as an arrear
of land revenue.

G (4) The Central Government may hand over the proceeds of the
cess collected under this section in respect of the goods manufac-
tured or produced by any scheduled industry or group of scheduled
industries to the Development Council established for that industry
or group of industries, and where it does so, the Development
Council shall utilise the said proceeds- ·
H
BARNAGORE JUTE FACTORY v. CENTRAL EXCISE [REDDY, J.] 103

(a) to promote scientific and industrial research with reference to A
the scheduled industry or group of scheduled industries in respect
of which the Development Council is established;

(b) to promote improvements in design and quality with reference
to the products of such industry or group of industries;
B
(c) to provide for the training of technicians and labour in such
industry or group of industries;

(d) to meet such expenses in the exercise of its functions and its ad-
ministrative expenses as may be prescribed."
c
Sub-section (1) is 'immediately relevant for the purpose of these cases.
The main features of the Sub-section are :

(a) The Central Government is empowered to levy and collect as
a cess a duty of excise for the purposes of the Act.
D
(b) Such levy shall be on all goods manufactured or produced in
such scheduled industry as is specified in the notification.

(c) The rate of cess shall be such as may be specified in the notified
order. ·
E
(d) Different rates may be specified for different goods or different
classes of goods.

(e) However, no such rate prescribed by the notified order shall in
any case exceed two annas per cent of the value of the goods.
F
(t) The value shall be determined in the manner provided in the ex-
planation to sub-section (1).

Section 30 confers the rule-making power upon the Central Government.
Sub-section (1) empowers the Central Government to make rules made for
carrying out the purposes of the Act. Sub-section (2) particularises the matters G
in respect of which rules can be made. Clause (c) of sub-section (2) empowers
the Central Government to provide by rules:

"the intervals at which, the time within which, and the manner in
which the cess leviable under section 9 shall be payable and the
· rebate for the prompt payment of such cess." H
104 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A By notification dated 18th February, 1976 (Published in the Ga-
zette of India ex~a-ordinary on the same day) the Central Government made
rules called "The Jute Manufactures Cess Rule, 1976''. The rules have been
made after prior publication i.e., after inviting objections and suggestions from
affected persons and after duly considering the same. Rule 2 defines certain
expressions occurring in the Rules. We need notice only one of them, namely
B the definition of 'Jute Manufactures' in clause (f) of Rule 2 which read thus:

"f.-'Jute manufactures' means manufactures of jute, or Bimli-
patam Jute or of Mesta fibre of all sorts including:

(1) twist, yarn, thread, rope and twine, all sorts, containing more
c than 50 percent by weight of jute (including Bimlipatam jute or
Mesta fibre) calculated on the total fibre content in or in relati~n
to the manufacture of which any process is ordinarily carried on
with the aid of power;

(2) other, but excluding any such manufacture,-
D
(i) which contain 40 per cent or more by weight of wool, or

(ii) which contains no wool on less than 40 percent by weight of
wool and less tha~ 50 per cent by weight of jute (including
Bimlipatam jute or Mesta fibre);"
E
· It may be noticed that this definition is not only inclusive but also
specifically includes jute; yarn, thread, rope and twine, all sorts.

Rule 3 applies the provisions of the Central Excises and Salt Act, 1944
F and the rules made thereunder in the matter of levy and collection of the cess
from the jute manufacturers. It reads as follows:

"3. -Application of Central Excise and Salt Act and the Rules made
thereunder-Save as otherwise provided in these rules, the provi-
sions of the Central Exclse and Salt Act, 1944 (1of1944) and the 'f:
rules made thereunder, including those relating to refund of duty,
G
shall; so far as may be, apply in relation to the levy and collection
of the cess as they apply in relation to the levy and collection of the
duty of excise on jute manufactures under that Act"

.By its order No. S.0.141 (2), the Central Government specified, for the
H purpose of Section 9(1) of the Act, the class of goods manufactured or
L,
I'

B~AGORE JUTE FACTORY v. CENTRAL EXCISE [REDDY, J.] 105

produced in the scheduled Industry of textiles and also specified the rate of cess A
on 'each of the goods. The cess was levied initially for a period of one year
commencing from 1st March, 1976. Later, it was extended for another year.
Jute textile and jute yarn are both subjected to cess among other goods ..

Notices were issued to all the jute manufac;turers to pay the said cess at
the specified rate on their products inclu~ing jute twine and jute yarn, produced B
in their units. The cess was held payable even in respect of jute yarn and jute
twine consumed within the same factory/unit in manufacturing jute textiles.
Indeed the Collector of Central Excise and Custom West Bengal clarified by
a trade notice dated 28th April, 1977, that jute 'twine and jute yarn when
consumed within the factory of production for conversion into manufactures
falling under Tariff item No. 22-A were subject to levy of cess. It said that jute c
twine and yarn captively consumed within the same factory, though exempt
from payment of Central Excise Duty, is yet liable to pay the cess under section
9 of the Act. Several jute manufacturers filed Writ Petitions in the Calcutta
High Court challenging the levy of cess on several grounds all of which were
rejected and Writ Petitions dismissed by a learned Single Judge. The petition-
ers thereupon carried the matters before a Division Bench by way of appeals D
under clause 15 of Letters Patent. The Division Bench agreed with the learned
Single Judge and dismissed the appeals whereupon they approached this Court
and filed these appeals by leave.

Mr. Salve, appearing for the appellants urged two contentions namely:
(1) Jute yam is not one of the products mentioned in heading 23 of the First E
Schedule to the Act though jute twine and jute rope are expressly mentioned.
Indeed, a reading of heading 23 shows that in all other sub-headings, yarn is
specifially mentioned but in the case of sub-heading (2), yam is omitted. This
omission is deliberate and meaningful which is evident from the fact that the
corresponding entry in the original First Schedule expressly included jute yam
F
but when the First Schedule was substituted in 1956, jute yarn was specifically
omitted. This has some meaning. It shows that jute yarn is outside the purview
of the Act In other words, an industry engaged in production of jute yarn is not
..,.
within the purview of the Act If so, cess under Section 9 cannot also be levied
on such products. He submitted further that the cess cannot be levied on
intermediate products but can be levied only on the final products.
G
(2) A reading of Section 9(1) shows that the levy of cess has to be with
reference to the value of the product (ad valorem). The notification in question
levies the cess by weight. Such a levy is not permissible and could not have
been contemplated by Sub-section 1 of Section 9 which is evident from a
reading of the proviso. As a matter of fact, such a levy (by weight) brings alJOut H
106 SUPREME COURT REPORTS [1991] SUP~. 3 S. C.R.

A an unequal and anamolc5us consequence. It is well known that finer the jute
textile, the less weight it would have. Correspondingly, coarser the textile,
more the weight. In this sense, coarse jute products having lower value are
subjected to higher cess than the finer quality jute textiles.

Mr. Ganesan appearing for the appellant in Civil Appeal arising from
B Special Leave Petition No. 5466 of 1980 urged the following contentions on
behalf of the respondent in the said appeal. We are referring to his contentions
at this stage itself because his contentions are supportive of and elaborate the
contentions urged by Mr. Salve. The contentions urged by Mr. Ganesan are : """

1. The period for which the cess is demanded is from October, 1977 to
c December, 1977. Rule 3 of the Rules makes the provisions of the Central
Excise Act and the rules made thereunder applicable in the matter of levy and
collection of the said cess. Until the amendment of Rule 9 and 49. 11y Finance
Act, 1982 (with retrospective effect from February, 1944, they provided for
levy of excise duty only at the stage of removal. It meant that intennediate
products which were captively consumed in the same factory could not be said
D to have been removed and, therefore, did not attrdct excise ~uty. This was the
position when Rule 3 of the Cess Rules was made. (The rules as stated above,
were made in February, 1976). This is a case of legislation by reference.In such
a case, it js well settled, subsequent amendments and alterations made in the
other enactment or Rules do not ipso-facto get imported into these Rules. The
imported provisions continue in the same fqrm irresp~,ctive of any change that
E may have been effected in the Central Excise Act or the Rules made there
under.

2. Under Rules 9 and 49, before their amendment, it" was well settled
that intennediate produc(s captively consumed within the same factory/prem~
ises cannot be said to have been 'removed' and hence, could not be subjected
F to duty. It must accordingly be held that intermediate products captively
consumed within the same factory cannot also be subjected to the cess under
Section 9.

3. Section 30 of the Act does not confer upon the rule-making authority
G the power to make rules with retrospective effect. This is another reason for
holding that the retrospective amendment of Rules 9 and 49 cannot be read into
Cess Rules.

On the other hand, Sri V.R.Reddy, learned First Additional Solicitor
General supported the levy. He submitted that Section 9 empowers the Central
H Government to levy cess "on all goods manufactured or produced in any such
BARNAGORE JUTE FACTORY v. CENTRAL EXCISE [REDDY, J.] 107

scheduled industry as may be specified in this behalf by Central Government A
by notified order". Once jute textile industry is notified by Central Govern-
ment, says he, all the goods manufactured or produced in such industry can be
subjected to cess. He emphasises the fact that subheading 2 of heading 23 is
inclusive in nature and must be deemed to take in jute yam. According to him,
the fact that jute yam, which was specifically mentioned in the corresponding
sub-heading before 1956 but is not found repeated in the present schedule is of B
little consequence. Learned Solicitor General did not concede that under Rules
9 and 49 Central Excise Rules, as they stood before they were amended in
1982, intermediate products captively consumed were not exigible to duty. In
any event, he submitted, it is now well settled by decisions of this Court
rendered under the provisions of Central Excise Act that duty can be levied on
intermediate products as well even though captively consumed within the same c
factory or premises. The same principle applies to cess levied under Section 9
which is really a duty of excise, though levied and collected as a ce:;s.
According to him, Rule 3 of Jute Manufactures Rule is not a cess of legislation
by reference but a case of mere reference and, therefore, the amendments and
changes made in the Central Excise Act and the rules made thereunder are
equally applicable for the purpose of levy and collection of cess. Learned D
Additional Solicitor General also justified the levy of cess by weight. Accord-
ing to him, the Act does not prohibit such a levy. He brought to our notice that
according to the schedule to the Central Excise Act, 1944 as well as the
schedule to the Central Excise Tariff Act, 1985 excise duty is levied on jute
and jute yam only by weight. The same principle has been followed under the
Act both for the sake of convenience and simplification. He submitted further E
that no material has been placed before the Court by the petitioners to show that
the levy in question infringes the ceiling prescribed by the proviso to Sub-
section 1 of Section 9.

By making the declaration contemplated by entry 52 of List I in the
Seventh Schedule to the Constitution, the Parliament has placed the control of
F
the industries specified in the First Schedule in the Union Government. The
opening words of the First Schedule are" any industry engaged in the manu-
facture or production of any of the articles mentioned under each of the
following heads or sub-heading namely .......... ". Heading 23 in the Schedule
reads, "Textiles (including those dyed, printed or otherwise processed)" There G
are five sub-headings. They deal with cotton, jute, wool, silk and synthetic/
artificial fibres respectively. Sub-heading 2 read alongwith the main heading
would read as follows: "Textiles, made wholly or in part of Jute including jute
twine and rope." This sub-heading must be read along with Section 9 of the Act
which empowers the Central Government to levy cess" on all goods manufac-
tured or produced in any such scheduled industry". Now, the petitioners are H
108 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A manufacturers of jute textiles-broadly speaking-among other jute products.
It is an indisputable fact that in the petitioners' factories, jute yam is first
produced and then it is consumed in manufacture of jute textiles. Jute yam is
a product known to market. It is, thus, an intermediate product, whiCh may be
captively consumed in the petitioners' very factories. In such a situation, can
it be said that jute yarn is not "goods manufactured or prOduced" in the
B petitioners' industries? We think not. In this situation, we are not prepared to
attach any significance to omission of word 'yam' In this sub-heading in 1956.
In this context, we may recall the observations of this Court in Harakchand v.
Union of India, (1970] S.C. 1453 at [1461] to the effect that "there was no
scientific or logical scheme in the classification of First Schedule of the Act 65
of 1951, but it is a mere enumeration and grouping of various items".Indeed,
C the Calcutta High Court has held, relying upon the said decision that the word
"Textiles" in heading 23 does not qualify sub-heading 2 of heading 23.

It is then argued that if we arrive at the above conclusion on the basis of
the language employed in Section 9, it would lead to an anamolous situation
viz., while the jute yarn industry would not be within the purview of the Act
D (i.e., would not be subject to control and regulation provided by the Act) its
products would be liable to pay cess under Section 9. This cannot be, says the
learned counsel. We are not impressed. Firstly, it is not the case of any of the
petitioners that any of them is engaged in the production of jute yarn alone. All
of them are engaged in manufacture of jute textile and ar~, therefore, scheduled
industries. Jute yarn is an intermediate product for them. It is not even stated
E by the petitioners that there are any factories or industries engaged in produc-
tion of jute yam alone. In the circumstances, this argument of Mr. Salve is
hypothetical in nature and need not detain us. We cannot also accede to Mr.
Salve's argument that intermediate products of a scheduled industry cannot be
subjected to cess on the ground that it would amount to multi-stage levy.
Section 9 speaks of levy on all goods manufactured or produced in a scheduled
F
industry. Jute yarn is goods known to market. Therefore, they are goods
manufactured in a scheduled industry. The fact that such yarn is captively
consumed in the manufacture of jute textile is of no relevance. In fact, this
question is concluded by .the decision of this Court in J.K.Cotton Spinning &
Weaving Mills v. Union of India, [1988) 1 S.C.R. 700, a decision rendered
G under the Central Excise and Salt Act.

We think it convenient to deal with the contentions of Sri Ganesan at this
stage, which we have set out herein before. His main contention is that rule 3
of the Jute Cess Rules is a case of legislation by reference and that in such a
case the provisions of the Central Excise Act and the rules made thereunder as
H they were obtaining on the date of making of Ruic 3 continue in the same form,
BARNAGORE JUTE FACTORY v. CENTRAL EXCISE [REDDY, J.] 109

unaffected by subsequent amendments or changes in the Central Excise Act A
and Rules. He therefore, says .that the amendment effected in 1982 in Rules
9 and 49 of Central Excise Rules is not available/or applicable to the levy and
collected ofcess under Section 9 of the Act. He also points out that the Act does
not confer upon the Central Government the power to make rules with
retrospective effect. He relied upon the decision of this Court in Mahindra &
Mahindra v. Union of India & Another, [1979) 2 S.C.R. 1038. In our opinion, B
however, the very approach of the learned counsel is based upon an incorrect
premise. Firstly, it is not true to say that Rules 9 and 49 of the Central Excise
Rules, as they stood before the 1982 amendment, did not permit levy of duty
on captively consumed goods. A perusal of die decision of this Court in
J.K.Cotton Spinning and Weaving Mills (supra) establishes the said fact. Dif-
ferent ~igh Courts had taken different views. There was no decision by this c
Court. It is, therefore, wrong to assum·e that under the unamended rules, it was
'well settled' that duty could not be levied on captively consumed goods. The
second and more important aspect is the nature of the cess in question. Though
levied and collected as a cess, the imposition under Section 9 is a duty of
excise. Section 9 says so in so many words. The explanation to Sub-section (1)
of Section 9 defines the expression 'value' in practically the same terms as it D
is defined in the Central Excise Act. And Rule 3 of the Jute Cess Rules provides ·
that except as otherwise provided in the said rules, the provisions of Central
,,_ Excise Act, and the rules made thereunder "shall, so far as may be, apply in
relation to the levy and collection of the cess as they apply in relation to the
levy and collection of the duty of excise on Jute Manufactures under that Act".
The language employed in this rule. is significant. According to it, the E
provisions of the Central Excise Act and Rules are applicable in the matter of
levy and collection of the cess in the same manner they apply in relation to levy
and collection of excise duty on Jute Manufactures. What do these words
mean? Certainly they should mean something more than the words which fell
for consideration in Mahindra and Mahindra. The facts of that case. are:
Section 55 of Monopolies and Restrictive Trade Practices Act, 1969 provided
F
that any person aggrieved by an order made by the Central Government or the
Commission under Section 13 or under Section 37 may prefer an appeal to the
Supreme Court on "one or more of the grounds specified in section 100 of the
Code of Civil Procedure, 1908". On the date M.R.T.P. Act was enacted,
Section 100 C.P.C. provided three grounds on which a second appeal lay, one G
of the01 being that the decision appealed against was contrary to law. However,
by virtue of 1976 Amendment, Section 100 was substituted. Now, a second
appeal lies only on one ground, namely in a case where the High Court is
satisfied that the case involves a substantial question of law. The appellant filed
an appeal under Section 55 on February 28, 1978, wherein the respondent
raised an objection as to its maintainability on the ground that the appeal docs H

. '
110 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A not involve a substantial question of law within the meaning of amended
Section 100 C.P.C. which was said to be applicable. The said objection was
negatived by this Court holding that on a proper interpretation of Section 55,
it must be held that the grounds specified in the then existing Section 100
C.P.C. were incorporated therein and the substitution of the new Section 100
did not affect or restrict the grounds as incorporated in Section 55. This was so
B held on the basis of the well settled proposition that

"if a subsequent Act brings ·into itself by reference some of the
clauses of a former Act, the legal effect of that, as has often been
held, is to write those sections into the new Act just as if they had
been actually written in it with the pen or printed in it, and, the
c moment you have those clauses in the later Act, you have no
occasion to refer to the former Act at all'

(Per Lord Esher, M.R. in In/re Wood's Estate (1886) 31 Ch. D.
607/615).

D But the language of Rule 3 of Jute Ccss Rules is altogether different. It
indicates a continuing applicability of the provisions of the Central Excise Act
and the Rules. What was levied was a 'duty of excise' and it was to be levied
and collected in accordance with the provisions of the Central Excise Act and
the Rules. The effect is as if the words "for the time being in force" were there
after the words "the provisions of Central Excise and Salt Act, 1944 (1 of 1944)
E and the Rules made thereunder" in Rule 3. We are, therefore, of the opinion
that the amendment of Rule 9 and 49 macic in 1982 (with retrospective effect
from 1944) is equally applicable in the matter of levy and collection of cess
under the Act. The contentions urged by Sri Ganesan are accordingly rejected.
In this view of the matter, it is not necessary to dwell upon the difference
between cases where the provisions of another Act are incorporated by
F reference and cases where a mere reference is made to another Act -a
distinction pointed out in a recent decision of this Court in Bhatinda Improve-
ment Trust v. Balwant Singh, [1991] 4 S.C.C. 368.

Coming to the second contention urged by Sri Salve, we st:e no substance
G in it Under the schedule to the Central Excise Act, jute was taxed with
reference to weight. So also was jute yarn; vide entry 22-A and 18-D.of the
Schedule. Even the 1985 Act taxes jute and jute yarn by weight alone. The
nature of the cess imposible under Section 9 is really that of duty of Central
Excise, as emphasised hereinbefore. Evidently, for that reason the principle ob-
taining under the Central Excise Act has been adopted by this Act in the matter
H of levy of cess. We cannot agree with Sri Salve that according to Section 9, the
BARNAGORE JUTE FACTORY v .• CENTRAL EXCISE [REDDY, J.] 111

cess can be levied on the basis of value alone and on no other basis. The main A
limb of section 9(1) does not indicate any particular basis for levy of cess. It
is only the proviso which says, "no such rate shall in any case exceed two annas
per cent of the value of the goods." Sri Salve wants us to read the proviso into
the main limb and on that basis, hold that Section 9(1) contemplates levy of
cess only ad valorem. We see no warrant for doing so or for restricting the
amplitude of the words used in the main limb of Section 9(1 ). It is not necessary B
to do so for giving effect to the proviso. The proviso can be respected and given
effect to even without reading such restriction into the main limb of Section
9(1). In our opinion, it is open to the Central Government to adopt such basis
as they may think appropriate for levy of cess, so long as such levy does not
violate the ceiling prescribed by the proviso. In this connection, it is wen to
remember that the Central Excise Act levies duties not only ad valorem but in C
several other ways.

So far as the infringement of the ceiling prescribed by the proviso is .
concerned, no material has been placed in support thereof before the Court.
This aspect has also been emphasised by the High Court. We agree with it and
reject the said contention as well. D

I For the above reasons, the Civil Appeals (except Civil Appeal 4823/1991
arising from Special Leave Petition No. 5466of1980) and the Writ Petitions
are dismissed. Civil Appeal 4823/1991 (arising from Special Leave Petition
No. 5466 of 1980) is allowed. No order as to costs~

N.P.V. Appeals and Petitions
dJsmissed and CA No.
4823/91 allowed..