9911796707
TMI Blog1988 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner satisfied these conditions and was therefore entitled to the benefit of the concessional rate of duty granted by the notification. The petitioner was filing the return accordingly and they were given the benefit of the concession. 3. Subsequently and on February 23, 1982, Government of India issued another notification Ext. P3 by which the availability of the concession was considerably whittled down. It was stated that in order to become eligible for the concession the total production of matches in a calender month should not exceed 15 million matches. The total clearance of matches for home consumption during the preceding financial year should not exceed 150 million matches. There were also other conditions. This notification was one issued on the subject, including Ext. P1. Though Ext. P3 was issued only on February 23, 1982, Section 52 of the Finance Act 14 of 1982 gave it retrospective operation by declaring that it shall be deemed to have and to have always had, effect on and from the 19th day of June, 1980. Such Section 2(d) of the section further provided that recovery shall be made of all such duties of excise which have not been collected, but which wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 1982 under which it was stated, there could not be any limitation of time. Section 52 specifically enjoins the department to review cases right from June 19,1980. The demand was therefore in order. 8. Though the petitioner took up this order Ext. P6 in appeal and second appeal, they were not successful. The appeal before the first appellate authority was rejected at the threshold for non-compliance with the first proviso to Section 35F since the petitioner did not furnish security for the amount of duty demanded, as directed by the Collector (Appeals). Copy of the Collector's order is Ext. P7. The second appeal before the Appellate Tribunal stood dismissed by the order, Ext. P8, on the ground that the question of validity of Section 52 of the Finance Act, 1982, raised by the petitioner, could not be gone into by the Tribunal. 9. The petitioner challenges these orders of the three statutory authorities. The only contention now raised is that the initiation of the proceedings by the notice Ext. P4 was beyond the period of six months prescribed by Section 11A of the Central, Excises and Salt Act, 1944 and therefore without the authority of law, null and void. It is point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne, 1980; and (b) be deemed to prevail, and to have always prevailed, over all notifications issued on or after the 19th day of June, 1980 but before the 23rd day of Feb. 1982 under sub-rule (1) of the said Rule 8 in relation to matches. Explanation - For the purposes of this section, 'matches' means matches falling under Item No. 38 of the First Schedule to the Central Excise Act; (2) Any action or thing taken or done or purported to have been taken or done ; on or after the 19th day of June, 1980 and before the 23rd day of Feb. 1982 in relation to matches, under the Central Excises Act and the Central Excise Rules, 1944, read with notifications referred in clause (b) of Sub-section(l), shall be deemed to be, and to have always been, for a purposes, as validly and effectively taken or done as if the provisions of sub-section (1) had been " in force at all material times and such action or thing had been taken or done under the Central Excises Act and the Central Excise Rules, 1944, read with the notification dated the 23rd day of Feb.1982, referred to in sub-section (10) and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of time for levy and collection the amounts which have become payable by the operation of that provision. Section 52 retrospectively denies the benefit of concessional rates of duty for certain categories of small scale, units, based on the quantum of their clearance. Sub-section 2(d) enables recovery of such amounts where the amounts had not been collected but which were otherwise payable under the amended provisions. But there is no non-obstante clause in sub-section 2(d) and it has not been collected made operation notwithstanding anything contained in Section 11A. This provision in the Act continues to govern and apply to all cases of non levy or short levy and any proceedings for re-assessment for levying and demanding short levied duty has still to conform to it. Section 11A is not rendered ineffective so far as proceedings for levy of duty under Section 52 are concerned. Section 52 has only modified on exemption/concession granted earlier by Notification No. 99 of 1980. The levy and collection have to be in accordance with the provisions of the Act (including Section 11A). In the absence of any specified provisions in that behalf, Section 52 cannot be enforced ign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to accepted the contention of the learned Attorney General that as Section 5l has made the amendments retrospective in operation since Feb. 28, 1944, it should be held that it overrides the provision of Section 11A. If the intention of the Legislature was to nullify the effect of Section 11A, in that case, the Legislature would have specifically provided for the same. Section 51 does not contain any non-obstante Clause, nor does it refer to the provision of Section 11A. In the circumstances, it is difficult to hold that Section 51 overrides the provision of Section 11A." 18. The ratio of this decision must squarely apply to the facts of this case. The comparatively short period of retrospectivity by Section 52 cannot alter the legal position. It has to be held that Section 52 of the Finance Act, 1982 is subject to Section 11A of the Act. 19. It is not in dispute that the proceedings initiated by Ext. P4 are beyond the period or time prescribed under Section 11A. The petitioner has therefore to succeed in this original petition. The proceedings initiated as per Ext. P4 and culminating in Exim. P6, P7 and P8 are illegal and invalid. They have to be quashed. I do so. 20. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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