The distinction between tobacco falling under Cl. (5) and Cl. (6) of entry 4(1) in the First Schedule to the Central Excises and Salt Act, 1944, based on physical form and capability of user, was reasonable and related to the object of the tariff imposition. Therefore, the attack on the validity of the impugned clause on the ground of unconstitutional discrimination could not be upheld.

Judgement

GAJENDRAGADKAR, J. : This is a petition filed under Art. 32 of the Constitution challenging the validity of the excise tariff imposed by Cl. (6) in entry 4(1) in the First Schedule to the Central Excises and Salt Act, 1944, (1 of 1944). Petitioners Nos. 1 to 17 are tobacco cultivators and they carry on the trade and business of growing tobacco and of selling it in Kaimganj Tahsil in the District of Farrukhabad in Uttar Pradesh. Petitioners 18 to 30 are partners or proprietors or agents of firms which are private bonded warehouse licensees and they carry on trade and business of purchasing tobacco from the cultivators and of selling the same to dealers or to other private warehouse licensees. By their petition the petitioners have asked for a writ, direction or order in the nature of mandamus to be issued to the respondent the Union of India, restraining it from levying excise duty on hooka and chewing tobacco under the impugned item and any other writ, direction or order which may be found suitable to protect the fundamental rights of the petitioners to carry on their trade and business of dealing in hooka and chewing tobacco. The attack against the validity of the impugned tariff item is based substantially on two grounds. It is urged that the rates imposed by the impugned item are excessive and they virtually destroy the petitioners trade and it is argued that the impugned item is based on unconstitutional, discrimination. Mr. Mathur, for the petitioners, fairly conceded that he would not be able to substantiate the first ground of challenge, and indeed it is obvious that a challenge to tax law on the mere ground that the tariff imposed by the tax law is heavy cannot be entertained. That leaves the question of discrimination alone to be considered in the present petition. For the purpose of this petition we will assume that if discrimination in respect of commodities taxed is proved it ultimately amounts to a discrimination against the person taxed and therefore Art. 14 can be invoked in such a case. Mr. Mathur contends that that is the effect of the decision of this Court in K. Thathunni Moopil Nair, v. State of Kerala, Petns. Nos. 13 to 24, 42 and 46 to 54 of 1958 decided by the Constitution Bench on 9-12-1960 : (AIR 1961 SC 552) and as we have just observed we will assume that such a challenge can be made against the validity of a taxing statute with provisions such as we have before us and deal with the petition on that basis.

2. The tariff entry in dispute as it now obtains under the taxing statute is entry 4 in the First Schedule. It deals with tobacco. Under this entry "tobacco" means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant but does not include any part of a tobacco plant while still attached to the earth. Clause I in entry 4 deals with unmanufactured tobacco and prescribes tariff per kilogram in respect of the several items specified in it. Item (1) under this clause deals with five categories of tobacco which are flue cured and are used in the manufacture of cigarettes as indicated in the said five sub-clauses. Item (2) deals with tobacco which is flue cured and used for the manufacture of smoking mixtures for pipes and cigarettes. Item (3) provides for flue cured tobacco which is not otherwise specified; and item (4) is concerned with tobacco other than flue cured and used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes. The tariff varies from Rs. 16-15 nP per kilogram to Rs. 1-65nP per kilogram. That takes us to item (5). This item deals with tobacco other than flue cured and not actually used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes or (c) biris. The fourth clause under this item is tobacco cured in whole leaf form and packed or tied in bundles, hanks or bunches or in the form of twists or coils. For tobacco falling under t