1991 (1) TMI 136 - SC - Central Excise

Whether the show cause notice was issued after the expiry of the period of six months from the accrual of the cause of action thus the imposition of duty and levy of penalty be quashed? Held that - The wide expression other legal proceeding must be read ejusdem generis with the preceding words suit and prosecution as they constitute a genus. In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication proceedings in question did not fall within the expression other legal proceeding employed in Section 40(2) of the Act as it stood prior to its amendment by Act 22 of 1973 and therefore, the said proceedings were not subject to the limitation pres.c.ribed by the said sub-section. Allow this appeal and set aside the order passed by the learned Single Judge as well as the Division Bench which affirmed it and dismiss the respondent s writ petition itself. Interim stay granted on August 16,1979 is vacated and the appellant will be entitled to recover the dues from the security furnished pursuant to that order.

Issues Involved:
1. Timeliness of the show cause notice under Rule 160 of the Central Excise Rules, 1944.
2. Interpretation of Section 40(2) of the Central Excises and Salt Act, 1944.
3. Applicability of the ejusdem generis rule to the term "other legal proceeding" in Section 40(2).

Detailed Analysis:

1. Timeliness of the Show Cause Notice
The High Court of Andhra Pradesh quashed the imposition of duty and penalty on the respondent because the show cause notice was issued after the expiry of six months from the accrual of the cause of action. The respondent, a dealer in tobacco, was issued a notice on August 30, 1972, for duty evasion and illicit removal of tobacco based on transport permits obtained in 1970. The High Court ruled that the action was time-barred under Section 40(2) of the Central Excises and Salt Act, 1944, which prescribes a six-month limitation period for instituting legal proceedings.

2. Interpretation of Section 40(2) of the Central Excises and Salt Act, 1944
Section 40(2) as it stood before its amendment by Act 22 of 1973 stated: "No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under the Act after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of." The Supreme Court analyzed whether this provision applied to the issuance of a show cause notice and subsequent adjudication proceedings. It was noted that Section 40(1) protects government officers from suits and prosecutions for actions done in good faith, while Section 40(2) prescribes a limitation period for instituting legal proceedings against any person.

3. Applicability of the Ejusdem Generis Rule
The Supreme Court examined whether the term "other legal proceeding" in Section 40(2) should be interpreted ejusdem generis with "suit" and "prosecution," which are judicial proceedings. The Court concluded that the term "other legal proceeding" should indeed be read ejusdem generis, meaning it should be limited to proceedings of a similar nature to suits and prosecutions, which are initiated in courts of law. This interpretation excludes departmental adjudication and penalty proceedings from the ambit of Section 40(2).

Conclusion:
The Supreme Court held that the penalty and adjudication proceedings initiated against the respondent did not fall within the term "other legal proceeding" as used in Section 40(2) of the Act before its amendment. Consequently, these proceedings were not subject to the six-month limitation period prescribed by the said sub-section. The appeal was allowed, and the High Court's order was set aside, thereby restoring the adjudication order dated April 4, 1974. The appellant was also entitled to recover dues from the security furnished pursuant to the interim stay order. The appeal was allowed with no order as to costs.

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