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TMI Blog1982 (9) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent claimed a refund of the sum of Rs. 1,64,500 paid by it from time to time towards assessment of excise duty under the Act as amended. 2. At the very outset, Mr. Subrata Kumar Roy Chowdhury the learned Counsel appearing on behalf of the respondent, has taken a preliminary objection to the maintainability of the appeal. It is contended by him that the appeal is hopelessly barred by limitation. In order to appreciate the said contention, the relevant particulars relating to the question of limitation are set out below : "September 22, 1980 : Order appealed from was passed. September 23, 1980 : Application for a certified copy of the order was filed by the appellants. September 27, 1980 : Requisition put in by the appellants for drawing up and completion of the order. April 5, 1982 : Information of the requisite number of folios and stamps is obtained by the appellants from the department and the appellants furnished the same. April 8, 1982 : Memorandum of appeal filed by the appelant with the leave of court under taking to file a certified copy of the order within the period of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eps for obtaining certified copy till 5th April, 1982, which they should have taken much earlier consistent with the age old practice prevailing in the original side of this Court. The practice referred to by the respondent is that after a decree or order is filed, it is the duty of a party who has applied for a certified copy of a decree or order for preferring an appeal against the same to immediately inform the officer concerned of the Current Record Department, who marks the folios about the filing of the decree or order. It is said that unless such information is given, the officer concerned will not come to know of the filing of the decree or order, and consequently, the folios will not be marked and the certified copy will not be prepared and delivered within a reasonable time and there will be delay. Our attention has been drawn to the following observation of Chakravarthi, C.J., in a Bench decision of this Court in Smt. Prativa Bala Mitra v. Gourlal Mitra-ILR (1968) 2 Cal 354 : "It is stated by the office that no certified copy of any order or decree can be supplied till the decree or order has been filed and the copying department cannot possibly become aware whether a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying for the certified copy of a decree or order. We had also called for a report from the Registrar of the original side of this Court. The Registrar has submitted a report which supports the contention of the respondent about such a practice prevailing in the original side. 8. Rule 3, Chapter 40 of the Original Side Rules, provides: "Where no other provision is made by the Code or by these rules the present procedure and practice shall remain in force". This rule has been relied on by the respondent in support of its contention that it was obligatory upon the appellants to follow the practice referred to above, and that the time which has elapsed due to the failure of the appellants is not informing the Current Record Department of the filing of the order cannot be excluded as time requisite or the time properly required to obtain the certified copy. 9. At this stage, it may be mentioned that we have allowed Mr. Salil Kumar Ganguly, on the prayer made by him, to intervene in this appeal on behalf of the Incorporated Law Society only insofar as it relates to the question of limitation. It has been pointed out by him that after the decree or order is drawn up and filed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the assessment of folios, and these rules are Rules 9, 10 and 12 of Chapter 4; Rule 72 of Chapter 36, item Nos. 52 to 54; and Rule 4(4) of Chapter 40. As the rules contain provisions relating to certified copies of decrees, orders and other documents, it is doubtful if Rule 3 of Chapter 40 will have any application to the practice relied on by the respondent. 12. The rules lay down the procedures relating to various matters. The procedure for obtaining a certified copy of a decree or order is to apply for the same and to get the decree or order drawn up, completed and filed in the Current Record Department. This procedure has to be followed by the party who intends to get a certified copy of a decree or order, and in case it is not followed, it is impossible for him to get the certified copy. In our opinion the practice that is referred to in rule 3 must be of such a nature as that without taking recourse to the same, it will not be possible to get a certified copy of a decree or order. In other words, the practice must be a step in the procedure, not provided for in the rules, without which it is not possible to obtain a certified copy. The practice should be considered an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctice can be exalted to a rule of limitation. The question was dealt with by the Supreme Court in Chandra Bhushan v. Deputy Director of Consolidation, Uttar Pradesh - AIR 1967 SC 1272. The facts in the case before the Supreme Court are that the Allahabad High Court had consistently laid down the practice that the period of 90 days which is the period fixed for appeal to the High Court from the judgment of the lower court should be taken as the period for application for the issue of a writ of certiorari and the time can be extended only when circumstances of a special nature which are sufficient in the opinion of the court are shown to exist. The Supreme Court observed : "But in the absence of a statutory rule, the period prescribed for preferring an appeal to the High Court is a rough measure; in each case the primary question is whether the applicant has been guilty of laches or undue delay. A rule of practice cannot prescribe a binding rule of limitation; it may only indicate how discretion will be exercised by the court in determining whether having regard to the circumstances of the case, the applicant has been guilty of laches or undue delay." Thus it appears that althoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e information available from the copy of the order filed along with the memorandum of appeal but it must go further and hold an enquiry whether any other copy had been made available to the appellant and if so, what was the time taken by the court to make available that copy. This would lead to a great deal of confusion and enquiries into the alleged laches or dilatoriness in respect not of copies produced with the memorandum of appeal but about other copies which he might have got and used for other purposes with which the court has nothing to do." 17. The observation quoted above is of much importance so far as the instant case is concerned. If the rule of practice is considered to be a rule of limitation, in that case, every time an appeal is filed, apart from the information available from the certified copy, the court will have to make an enquiry whether after the filing of the decree or order in the Current Record Department, the appellant had duly intimated the officer entrusted with the work of assessing the folios. This would require an affidavit to be filed by the party filing the appeal which may be controverted by the respondent by an affidavit-in-opposition. If such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by treating a rule of practice as a rule of limitation, the court cannot reject a petition for condonation of delay without considering whether in fact the petitioner is guilty of laches or undue delay. It is, therefore, manifestly clear from the above observation of the Supreme Court with regard to this practice prevalent on the original side of this Court, that such practice cannot be treated as a rule of limitation, so that in case of non-compliance with the same, it cannot be said that the appellant will not be entitled to the exclusion of the time taken for such non-compliance. We are unable to accept the contention of the respondent that the said observation has been made by the Supreme Court as the appellant had appeared in person and was not aware of the practice. The consistent view of the Supreme Court expressed in the decisions referred to above including the present one is that a rule of practice cannot be engrafted into the provision of section 12(2) of the Limitation Act. In this connection, it may be pointed out that in an unreported decision of the Division Bench consisting of A.N. Ray, J. (as he then was), and S.K. Mukherjee, J., in Taher Brothers v. Benami Propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 20. Now we may consider the merits of the case. The respondent manufactured medicines at its manufactory containing alcohol, which are dutiable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, and also non-alcoholic preparations which are not dutiable under the Act. The alcoholic products are made by the respondent under a licence issued in form No. L-2 under the Medicinal and Toiler Preparations (Excise Duties) Rules, 1956 (hereinafter referred to as the Rules). The licence is renewed from year to year. 21. For the purpose of removal of dutiable goods from the manufactory, the respondent has to comply with certain procedure prescribed by the Rules. Under the procedure, an application in form A.R. 2 in triplicate containing full details of the quantity, quality and description of the dutiable goods is to be filed with the Excise Officer on duty at the manufactory of the respondent. The Officer after checking, verifying and comparing the same with the entries in the M.G. 4 Register maintained by the respondent, assesses the duty payable thereon, and endorses the same on the A.R. 2 forms, two copies of which are retained by him. In accordance with the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the pendency of the writ petition, the respondent had to pay a total sum of Rs. 1,64,500 in terms of the order of this Court towards the arrear of excise duty as demanded. 25. The writ petition was, ultimately, heard by T.K. Basu, J., on 14th December, 1976. In disposing of the writ application, the learned Judge directed appellant No. 2, the Commissioner of Excise (Special), West Bengal, to give a fresh hearing to the respondent after making available to it certain information that was obtained by the appellants from the Central Government and such other matter as might be required by the respondent and to reconsider the impugned order dated 25th July, 1973, in the light of the submissions of the respondent at the further hearing. The learned Judge made it clear that he did not decide any question raised in the writ application and the respondent would be entitled to agitate all questions of fact and law at the said further hearing before appellant No. 2. 26. Pursuant to the said order of the learned Judge, appellant No. 2 gave a further hearing to the respondent, but he confirmed the previous order dated 25th July, 1973, except that the period from 1st April, 1961 to 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignment of goods removed from the place or premises specified in this behalf, or from a warehouse keep with any person dealing in such goods an account-current of the duties payable thereon and such account shall be settled at intervals not exceeding three months, and the account-holder shall periodically deposit a sum therein sufficient in the opinion of the Excise Commissioner to cover the duty on the goods intended to be removed from the place of manufacture or storage. (2) If any dutiable goods are, in contravention of sub-rule (1) deposited in or removed from, any place specified therein the manufacturer thereof shall pay the duty leviable on such goods upon written demand made by the proper officer, whether such demand is delivered personally to him or is left at the manufactory or his dwelling-house, and shall also be liable to a penalty to be determined by the Excise Commissioner which may extend to two thousand rupees, and such goods shall also be liable to confiscation. 11. Recovery of duties or charges short-levied or erroneously refunded. - When duties or charges have been short-levied through, inadvertence, error, collusion or misconstruction on the part of an Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, contended on behalf of the appellants that the respondent must have deliberately made misstatements in A.R. 2 as to the quality and quantity of goods removed by it as a result of which the excise duty was short-levied. It is true that if really the duty had been short-levied as alleged by the appellants, the goods must have been removed on the basis of some deliberate misstatements made in A.R. 2 forms. The appellants have not, however, in the show cause notice alleged that any misstatement was made in A.R. 2 forms. Even assuming that the respondent had made misstatements in A.R. 2 forms as a result of which the duty was short-levied the rule under which such duty can be realised is rule 11 and not rule 9(2). Rule 11 prescribes a limitation of six months from the date on which the duty or charge was paid or adjusted in the owner's account-current, if any. Admittedly, the demand for realisation of the amount of duty short-levied was made by the respondent long after the expiry of the said period of six months. So the demand of the appellants for the said sum of Rs. 1,75,677.97 was barred on the date the notice was served on the respondent. 31. The learned Senior Standin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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