These two writ petitions require disposal by a common order, because the order in W.P. 4747 of 1983 will have an impact on the point raised in W.P. 5696 of 1980. The prayer in W.P. 5696, of 1980 runs in the following terms :-


"For the reasons stated in the accompanying affidavit, the petitioners pray that this Honourable Court may be pleased to call for the records in Order No. 673-674 of 1980 dated 10th July, 1980 (signed by the first respondent on 30th August, 1980, received by the petitioner on 18.9.1980) and issue a writ of certiorified mandamus or any other writ, direction or order and quash the said order and direct the third respondent herein to refund the sum of Rs.16, 25, 235.00 paid as Central Excise duty paid under mistake of law and to pass such other and further orders as this Honourable Court may deem fit and render justice."


The prayer in W.P. 4747 of 1983 runs as follows :-


" For the reasons stated in the accompanying affidavit, it is hereby prayed that this Honourable Court may graciously be pleased to .call for records relating to the Notification No. 20/82, dated 20th February, 1982 issued by the first respondent herein giving effect to Amendment and Demand Order No. D.C.487/83 dated 6th May, 1983 issued by the fourth respondent herein in pursuant to the said notification and quash the same and in so far as the petitioner is concerned, by way of a writ of certiorarified mandamus or any other appropriate writ or order or direction in the nature of writ or otherwise and to restrain the respondents and their officers from giving effect to the said Notification No. 20/82 dated 20th February, 1982, issued by the first respondent and the demand of Central Excise duty raised by the fourth respondent in O.C. No. 487/83 dated 6.5.1983, on Oleum manufactured and consumed within the plant by the petitioner from the date of the said Notification against the petitioner and pass such other or further orders as this Honourable Court may, deem fit and proper and thus render justice.'The petitioner primarily manufactures Oleum among other products. Oleum is consumed and utilised in the production and manufacture of other products in the same factory premises of the petitioner. On the ground that the consumption and utilisation of Oleum for the production and manufacture of the other products in the very same factory premises of the petitioners would amount to removal of excisable goods within the meaning of Rule 9 of the Central Excise Rules, 1944, hereinafter referred to as the Rules, there had been levy of excisable duty and the petitioner, urging that such consumption or utilisation would not amount to removal of excisable goods within the meaning of Rule 9 of the Rules, has projected the prayer as extracted above in W.P. 5696 of 1980. During the pendency of W.P. 5696 of 1980, an Explanation to Rule 9 has been introduced by Notification No. 20/82-CE, dated 20.2.1982, and this has been given retrospective effect from the date on which the Rules came into force by Section 51 of the Finance Act, 1982, which is a Parliament made law. The said Explanation reads as follows :-" *


For the purpose of this rule, excisable goods produced, cured or manufactured in any place and consumed or utilised -


(i) as such or after subjection to any process or processes; or


(ii) for the manufacture of any other commodity, whether in a continuous process or otherwise, in such places or any premises appurtenant thereto, specified by the Collector under sub-rule (1), shall be deemed to have been removed from such place or premises immediately before such consumption or utilisation'.


Section 51 of the Finance Act, 1982 reads as follows :-



"Retrospective effect for certain amendments to Central Excise Rules and Validation:-


(1) The amendments made in Rules 9 and 49 of the Central Excise Rules, 1944 by the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. G.S.R. 74-E dated 20th day of February, 1982, shall be deemed to have and to have always had effect on and from the date on which the Central Excise Rules, 1944 came into force.(2) Any action or thing taken or done or purporting to have been taken or done, before the 20th day of February, 1982, under the Central Excise Act and Central Excise Rules, 1944, shall be deemed to be and to have always been for all purposes as validly and effectively taken or done as if the amendments referred to in sub-section (1) had been in force at all material times, and accordingly notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority.


(a) all duties of excise levied, assessed or collected or purporting to have been levied, assessed or collected, before the 20th day of February, 1982, on any excisable goods under the Central Excise Act, shall be deemed to be and shall be deemed to have always been, as validly levied, assessed or collected as if the amendments referred to in sub-section (1) had been in force at all material times;


(b) no suit or other proceeding shall be maintained or continued in any court for the refund of, and no enforcement shall be made by any court of any decree or order directing the refund of, any such duties of excise which have been collected and which would have been validly collected if the amendments referred to in sub-section (1) had been in force at all material times;


(c) refund shall be made of all such duties of excise which have been collected but which would not have been so collected if the amendments referred to in sub-section (1) had been in force at all material times;


(d) recovery shall be made of all such duties of excise which have not been collected, or, as the case may be, which have been refunded but which would have been collected or, as the case may be, would not have been refunded if the amendments referred to in sub-section (1) has been in force at all material times.Explanation :- For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force'.


This has provoked the petitioner to come to this Court by way of subsequent W.P. No. 4747 of 1983.


2.Mr. G. Venkateswaran, learned Counsel for the petitioner, would submit that the rule making power is conferred on the Central Government only by Section 37 of the Central Excises and Salt Act, 1944, hereinafter referred to as the Act, and that section does not confer any specific power on the Central Government to make a rule to be operative retrospectively. However, learned Counsel is conscious that there are pronouncements of the High Courts, which have upheld the validity of the Explanation to Rule 9; and apart from adopting the very same grounds of attack which have been repelled by the said pronouncements, he would further submit that Section 4(4)(b) of the Act defines 'place of removal' and that would come into conflict with the Explanation to Rule 9 and will bring in an ambiguity in the working of the provisions. I shall deal with this contention after I refer to the primary contention of the petitioner.


3.The proposition is well settled that the legislative power conferred on the appropriate Legislature to enact law can be exercised both prospectively and retrospectively. Where the Legislature can make a valid law, it may provide not only for the prospective operation of the material provisions of the said law, but it can also provide for the retrospective operation of the said provisions. The contention that giving effect to the law retrospectively for a longer period back must be straightway construed as unreasonable or arbitrary, cannot be upheld, because that would be adopting a mechanical test in determining the reasonableness or the arbitrariness of the retrospective operation of the law, which may be urged to strike at it. The text of length of time covered by the retrospective operation cannot by itself be treated as a decisive test to find out the unreasonableness or arbitrariness of a retrospective law. It is admitted that prior to the amendment, there were divisions of other High Courts holding that an intermediary product utilised or consumed for obtaining another product in the very same premises would not attract excise duty, since by such utilisation or consumption, there was no removal within the meaning of Rule 9 before its amendment in 1982. If with a view to remove the ambiguity or cure the infirmity in the language of the provision, a classificatory or validating law retrospectively comes to be enacted, naturally it has to cover a long range and viewed from this angle, it would be inappropriate to declare the retrospective law as unreasonable or arbitrary. Each law has got to be dealt with in the context in which it came to be enacted. By the notification introduced by the amendment by the Notification and the retrospective validation of it by the Finance Act in 1982, what should have been the position clear of the ambiguity, got declared and naturally enforcement will have to be done retrospectively. Such enforcement retrospectively cannot have the stamp of unreasonableness or arbitrariness. It must be noted that Explanation to Section 51 of the Finance Act, 1982, excludes attraction of criminal liability on account of retrospectivity. Even the civil liabilities must be deemed to be enforced as per the law prior to amendment as exemplified by the clarification, and nothing more. The Legislature has the power to give retrospective operation of law, if there is a need for it, especially to remove an ambiguity or cure an infirmity, which had given rise to controversy before courts, and the decisions of Courts had come to be rendered, taking note of the ambiguity or infirmity.


4.InJ.K. Cotton Spinning and Weaving Mills and anotherv.Union of India and others- 1983 ELT 239 (Delhi), a Bench of the High Court of Delhi, while upholding the validity of retrospective operation of Explanation to Rule 9, introduced in 1962, discountenanced the attack of unreasonableness or arbitrariness over it. InTata Export Ltd.v.Union of India and others, 1985 (22) ELT 732, 1989 (20) ECR 204 (M.P.), a Bench of the High Court of Madhya Pradesh at Jabalpur has dealt with the same point and held the amendment asintra viresthe Constitution. InKathiwar Jute Mills Ltd.v.Inspector of Central Excise and others- 1986 (23) ELT 402 (Patna), a Full Bench of the High Court of Patna opined that it is well-settled beyond cavil that Parliament has plenary power to legislate both prospectively and retrospectively within the parameters laid out by the Constitution and held that the amendment suffered from no legal infirmity.


5.InDevangere Cotton Mills Ltd., v.Union of India and others- 1986 (24) ELT 507, 1982 ECR 254 (Karnataka), a Bench of the High Court of Karnataka at Bangalore had occasion to deal with the very same question and upheld and countenanced the validity of the retrospective amendment in the following terms :-" *


At the first blush the exercise made by Government and the Parliament may look somewhat novel and even odd. But, the novelty and addity, if any, on which also we do not propose to say anything, cannot by itself be a ground to hold that the Parliament was not competent to legislate either in the manner it did and giving it retrospectivity from the very inception of the Rules .......


When once it is held that Parliament was competent to legislate Section 51, it follows from the same that it was competent to legislate retrospectively. We cannot on principle or authority hold that the Parliament was not competent to legislate in the manner it did to meet or overcome an extraordinary situation created by the rulings of the Delhi, and other High Courts........InJ. K. Cotton Spinning and Weaving Mills and anotherv.Union of India and others, 1983 ELT 239 (Delhi) the Delhi High Court had also upheld the very amendment. InTata Export Ltd.v.Union of India and others- 1985 (22) ELT 732, 1989 (20) ECR 204 (M.P.), andKathiwar Jute Mills Ltd. v.Inspector of Central Excise and others, 1986 (23) ELT 2 (Patna) (FB); 1986 (7) ECC 43 FB (Patna) the High Courts of Madhya Pradesh and Patna respectively had also upheld the amendment. We are in respectful agreement with the conclusion reached by their Lordships in these cases.'


6.So far as this court is concerned, a similar point arose for consideration with reference to Notification No. 22/82 adopted by Section 52 of the Finance Act, 1982, and a Bench of this Court inBharat Match Works, Vanaramamurthi and othersv.Union of India and others, 1984 (16) ELT 3 (Madras) while upholding its validity observed as follows :-


"It is by now well established that the Parliament has got the power to make law on a topic in respect of which it is competent to enact a law both prospectively and retrospectively and such a power to make a law retrospectively is more freely exercised by the Legislature in the field of taxation. Since the object of validating Acts is to enable Legislature to carry into effect that which it had designed and attempted, but which has failed of its expected legal consequences by reasons of some statutory disability or irregularity in their action, the general rule that a statute should not be construed to operate retrospectively, unless the legislative intent is clear has no application to such validating Acts," *


7.With regard to the point that Section 37 of the Act does not by itself confer a power on the Central Government to make a rule with retrospective operation, the same stands answered by the Bench of the High Court of Karnataka inDevangere Cotton Mills Ltd. v.Union of India and others, 1986 (24) ELT 507, 1982 ECR 254 (Karnataka) in the following terms in paragraphs 30 to 33 of the judgment:-" 30. Sri Srinivasan has urged that notwithstanding the enactment of Section 51 of the 1952 Act, the character of the Rules amended from 20.2.1982 are not at all altered and that without amending Sections 37 and 38 of the Act, the Rules which had been given retrospective effect, would be ultra vires of the Act and that Section 51 of the 1982 Act does not aid in sustaining their validity or even Section 51 of the 1982 Act.


31. We have earlier noticed that Sections 37 and 38 which empower Government to make Rules under the Act, empower it to make rules prospectively and not retrospectively.


32. Section 38(1) of the Act provides for the publication of the Rules in the official Gazette. Section 38(2) of the Act provides for laying of the Rules before Parliament and its power to approve or modify them and their effect. The Rules made have the force of law.


33. When Parliament declared that the explanation to the Rules shall have effect from the very day the Rules were made by Government, it was really legislating them, the exercise

of its plenary legislative powers. We cannot treat that exercise in any other way. The novelty and necessity does not touch on the character, potency and efficacy of the legislation made by the Parliament at all. When the Parliament was legislating in exercise of its plenary legislative powers, the failure, if any, to amend Sections 37 and 38 of the Act does not in any way affect its legislative character and validity at all. In reality and substance, it was a case of full and complete legislation by the plenary legislature and it was not a case of subordinate legislation by the delegated authority. If that is so, then the arguments built on the premise of subordinate or delegated legislation must fall to the ground.' I respectfully agree with and adopt the above reasoning to repel this contention of the learned Counsel for the petitioner. 9.With reference to the point, which the learned Counsel for the petitioner wants to make regarding the definition of 'place of removal' found in Section 4(4)(b) of the Act and the Explanation to Rule 9 introduced in 1982, there is no scope for any conflict or ambiguity coming in between the two, because as rightly pointed out by Mr.T. Somasundaram learned Additional Central Government Standing Counsel, appearing for respondents, that while Section 4(4)(b) defines only 'the place of removal', Rule 9 speaks about removal as such and the Explanation introduced in 1982 has defined that consumption or utilisation of excisable goods produced or manufactured in the very same place would amount to removal. 10.Under these circumstances, these two writ petitions fail and they are dismissed. No costs.