9911796707
TMI Blog1977 (10) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... was alleged that the petitioner had not satisfactorily maintained the accounts of production, manufacture, storage delivery or disposal of the goods and that the petitioner had also cleared some dutiable parts of the refrigerators manufactured by them without making of a Gate Pass and without debiting duty payable on the goods in the Personal Ledger Account contravening thus Rule 9(1) and 226 of the Central Excise Rules. 4. The Collector, Central Excise, held an inquiry into the allegations and by his order dated 20th October, 1971 held the petitioner guilty of the contravention of the said Rules and also Rule 56-A of the Central Excise Rules and levied duty as well as penalty. Aggrieved by the decision the petitioner took up the matter in appeal to the Central Board of Excise and Customs and that was rejected on 2-8-1973. 5. The matter was thereafter taken in revision before the Government of India and that revision was disposed of on 6-4-1976 virtually confirming the order sought to be revised. But the penalty was reduced from Rs. 6,000/- to Rs. 3,000/-. 6. That occasioned invoking the jurisdiction of this Court under Article 226 of the Constitution of India by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of revision, which was not availed of by the petitioner, this writ petition should be dismissed. 11. The point therefore that arises for the determination is whether the levy of penalty pursuant to the show cause notice issued after the expiration of six months from the accrual of cause of action is not void under sub-section (2) of Section 40 of the Central Excises and Salt Act, 1944 12. As the controversy centres around the interpretation of sub-section (2) of Section 40 of the Act, we shall read the same. "40. Bar of suits and limitation of suits and other legal proceedings : (1) *** (2) No suit, prosecution or other legal proceeding shall be instituted or anything done or ordered to be done under this 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." 13. In the present case the stock-taking took place from 3rd December, 1969 to 23rd December, 1969 and the cause of action for taking any proceedings against the petitioner arose on those dates. The show cause notice was issued to the petitioner long after the expiration of the six months period from the date of accrual of cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a writ petition. The contention raised there was issued on 17th September, 1971 long after the period of 1imitation prescribed in Section 40 (2) of the Central Excises and Salt Act, 1944 and as such the order levying the duty is illegal. Referring to the decision of the Supreme Court in Public Prosecutor, Madras v. R. Raju [1978 (2) E.L.T. (J 410)], the Division Bench held this : "So, in the instant case, show cause notice was issued beyond the period of six months. and in our view, the judgment of the Supreme Court applies on all fours to the facts of the case and the impugned order has to be quashed." 16. The contention raised by the Government that the expression "legal proceeding" occurring in Section 40 (2) of the Act is referable only to a proceeding in a Court and not to the action of a department in levying Excise Duty was also repelled by the Division Bench in that case. 17. Following that decision, the impugned order, shall have to be set aside as void. Nevertheless, Sri Subrahmanya Reddy contended for the position that as the petitioner has an alternative remedy under Article 226 (3), this Court should not interfere with the impugned order. 18. I have already h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and circumstances of that particular case. As we have already seen, the order that is now impugned, was held to be one passed without jurisdiction. That conclusion was supported by a Division Bench decision of this Court rendered in W.P. No. 2516/74, dated 1st April, 1976. The Division Bench relied upon the Supreme Court decision. When the matter is thus found to have been concluded both by the decision of the Supreme Court and by the decision of the Division Bench of this Court, no useful purpose is likely to be served by driving the petitioner to avail himself of the alternative remedy by way of revision, especially when it is held that the impugned order suffers from an inherent want of jurisdiction, and as such it is found to be void. I, therefore, consider that this writ petition is entertainable for the reason that the impugned order was void ab initio. 21. Yet another contention raised by Sri Subrahmanya Reddy was that the petitioner tool up the matter in appeal and the appeal was rejected for whatever reason it be. Therefore, the order impugned must be taken to have merged in the appellate order that is sought to be impugned in this writ petition and therefore no rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules of procedure and which offends the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned." I have already come to the conclusion placing reliance upon the decision of the Division Bench of this Court which in its turn relied upon the Supreme Court decision that the impugned order is afflicted with the infirmity of want of jurisdiction and therefore the order is void and bad in law. If such an order is void or bad in law, any procedure by way of taking an appeal and thereafter by revision will not have the effect of affecting its void character. Therefore no useful purpose will be served by driving the petitioner to exhaust the remedies available under the statute with respect to a void order. As the impugned order is afflicted with infirmity or vice, it need not have to be obliterated or cured on appeal or revision. For the aforesaid reasons, I am satisfied tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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