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TMI Blog1979 (7) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Constitution of India inasmuch as the said provision purported to impose the penalties relating to the offences with retrospective effect. It may be pointed out that their Lordships of the Supreme Court in Khemka Co. (Agencies) Pvt. Ltd. v. State of Maharashtra[1970] 76 I.T.R. 696 (S.C.). held as under: "There is no provision in the Central Sales Tax Act, 1956, for imposition of penalty for delay or default in payment of tax and the provision in the State Sales Tax Act imposing penalty for non-payment of tax within the prescribed time is not attracted to impose penalty on dealers under the Central Act in respect of tax payable under the Central Act. Consequently, it is not permissible for the authorities to invoke the provisions of section 16(4) of the Bombay Sales Tax Act, 1953, for imposing penalty for failure by the dealer to pay sales tax payable under the Central Act within the prescribed time." The abovementioned decision of their Lordships of the Supreme Court necessitated the amendment of the Central Act and thus the Parliament by enacting the Central Sales Tax (Amendment) Act, 1976 (Act No. 103 of 1976), removed the lacuna in the existing provisions of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties were imposed or proceedings or acts or things were taken or done and, accordingly,- (a) no suit or other proceedings shall be maintained or continued in or before any court or any tribunal or other authority for the refund of any amount received or realised by way of such penalty; (b) no court, tribunal or other authority shall enforce any decree or order directing the refund of any amount received or realised by way of such penalty; (c) where any amount which had been received or realised by way of such penalty had been refunded before the commencement of this Act and such refund would not have been allowed if the provisions of sub-section (1) had been in force on the date on which the order for such refund was passed, the amount so refunded may be recovered as an arrear of tax under the principal Act; (d) any proceeding, act or thing which could have been validly taken, continued or done for the imposition of such penalty at any time before the commencement of this Act if the provisions of sub-section (1) had then been in force but which had not been taken, continued or done, may after such commencement be taken, continued or done............" The provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty" used in this provision has not been used independently of the offence but the same has been used in relation to it being inflicted in connection with an offence. It would thus be seen that if the validation clause has imposed the penalty retrospectively which is leviable in connection with the offence, in that case the said provision is ultra vires article 20(1) of the Constitution but the plain reading of the validation clause would show that such a provision has not been made in the said clause. The provisions of section 9(2A) as amended by the amending Act are prospective and make all the provisions relating to the offences and penalties (including provisions relating to penalties in lieu of prosecution for an offence or in addition to the penalties or punishment for an offence but excluding the provisions relating to matters provided for in sections 10 and 10A) of the general sales tax law of each State, with necessary modifications, applicable, whereas the validation clause, which is retrospective in nature, excludes the application of the provisions of the Act relating to the offences with retrospective effect. It is important to note that even though section 9(2A), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for under any law, an offender is sought to be prosecuted and if the prosecution succeeds in proving its case, the prosecution ultimately culminates into punishment. The provisions of subarticle (2) of article 20 of the Constitution were the subject-matter of interpretation by their Lordships of the Supreme Court in Thomas Dana v. State of PunjabA.I.R. 1959 S.C. 375. , wherein their Lordships held that the word "prosecution" means a proceeding either by way of indictment or information in the criminal courts in order to put an offender upon his trial. It was held that proceedings before the sea customs authorities under section 167(8) of the Sea Customs Act are not prosecution within the meaning of article 20(2) of the Constitution. Therefore, it was held that the fact that in such proceedings the customs authorities have both confiscated the goods and also inflicted the penalty on a person, does not bring into operation the provisions of article 20(2) of the Constitution so as to prevent his prosecution and imprisonment under section 167(8) of the Sea Customs Act read with sections 23 and 23-B of the Foreign Exchange Regulation Act and under section 120-B of the Indian Penal Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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