IMPORTANT POINTS
Units paying duty cannot seek notification u/s 11C merely because some units escaped payment of duty.
Equality clause in Article 14 is a positive concept and cannot be applied in the negative.
Merely because conditions laid in the provisions for issue of a notification are satisfied, would not be a reason to necessarily issue such a notification.

JUDGMENT

A.K. SIKRI, J.

This appeal arises out of the judgment of the High Court rendered in the writ petition filed by the appellant, wherein the appellant wanted the High Court to exercise its powers under Article 226 of the Constitution of India and issue mandamus to the Central Government directing the Central Government to issue a notification under Section 11C of the Central Excise Act, 1944 (hereinafter referred to as the `Act') to the effect that duty payable by the appellant on goods manufactured by it shall not be paid.2. Section 11C of the Act reads as under:

"11C. Power not to recover duty of excise not levied or short2 levied as a result of general practice.-

(1) Notwithstanding anything contained in this Act, if the Central Government is satisfied-

(a) that a practice was, or is, generally prevalent regarding levy of duty of excise (including non- levy thereof) on any excisable goods; and

(b) that such goods were, or are, liable-

(i) to duty of excise, in cases where according to the said practice the duty was not, or is not being, levied, or

(ii) to a higher amount of duty of excise than what was, or is being, levied, according to the said practice, then, the Central Government may, by notification in the Official Gazette, direct that the whole of the duty of excise payable on such goods, or, as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice, shall not be required to be paid in respect of the goods on which the duty of excise was not, or is not being, levied, or was, or is being, short- levied, in accordance with the said practice.]

(2) Where any notification under sub- section (1) in respect of any goods has been issued, the whole of the duty of excise paid on such goods or, as the case may be, the duty of excise paid in excess of that payable on such goods, which would not have been paid if the said notification had been in force, shall be dealt with in accordance in force, shall be dealt with in accordance with the provisions of sub- section (2) of section 11B:

Provided that the person claiming the refund of such duty or, as the case may be, excess duty, makes an application in this behalf to the Assistant Collector of Central Excise, in the form referred to in sub- section (1) Of section 11B, before the expiry of six months from the date of issue of the said notification."

3. A bare perusal of the aforesaid provision would indicate that if certain conditions mentioned therein are satisfied, the Central Government may issue a notification directing that whole of the duty of excise payable on such goods, or, as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice, shall not be required to be paid. The condition stipulated in the said Section with which the Central Government is to satisfy itself is that there is/was a generally prevalent practice according to which the duty was not, or is not being levied, even when such a duty of excise was otherwise payable on such excisable goods.

4. We may point out at this stage itself that the High Court vide impugned judgment has come to the conclusion that Section 11C of the Act grants a discretionary power to the Government to issue or not to issue such a notification. The said provision does not mandate the Government to necessarily issue such a notification and in the absence of any obligation on the part of the Government in this behalf, the Courts are precluded from giving any mandamus to the Central Government to exercise such a power and issue the notification.

5. Before we answer the questions posed above and comment upon the correctness or otherwise of the view taken by the High Court, those seminal and material facts, which have a bearing on the issue, needs to be stated. These facts are as follows:

The appellant is in the business of manufacturing Rosin and Turpentine. Rosin is the resinous constituent of the oleoresin exuded by various species of Pine Tree i.e. Oleo