9911796707
TMI Blog1992 (2) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... read, to show cause why the price lists submitted by it under Rule 173C(3) of the said Rules should not be revised and why it should not be required to pay excise duty allegedly short-levied in the sums therein mentioned. The first petitioner showed cause, but the notices were made absolute by the Asstt. Collector of Central Excise. The first petitioner preferred appeals, which were rejected by the Appellate Collector of Central Excise and Customs. Its Revision Application to the Government of India met the same fate. 4. The show cause notices and the orders of these authorities are under challenge in these writ petitions. The argument is that Rule 10 as it then stood was substituted on 6th August, 1977. Since the proceedings that commenced upon the show cause notices dated 13th June, 1977 had not been completed by 6th August, 1977 when the old Rule 10 was substituted, the proceedings could not be continued, there being no saving clause. 5. At the outset, we must set out the provisions of the old Rule 10, that is, as it read until it was substituted on 6th August, 1977. It read : "Recovery of duties or charges short-levied, or erroneously refunded. (1) When duties or charges h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collusion or any wilful mis-statement or suppression of facts by such person or his agent, the provisions of this sub-section shall, in any of the cases referred to above, have effect as if for the words "six months", the words "five years" were substituted. Explanation. - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the period of six months, or five years, as the case may be. (2) The Assistant Collector of Central Excise shall, after considering the representation, if any, made by the person on whom notice is served, under sub-rule (1), determine the amount of duty due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined". 7. We may also note that on and from 17th November, 1980 the substituted Rule 10 was omitted and Section 11A was introduced in the Act. The relevant portion of Section 11A reads thus : "Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded :- (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Gujarat High Court. The Amit Processors' decision was followed by the Gujarat High Court in Mahendra Mills Ltd. v. Union of India [1988 (36) E.L.T. 563]. 9. The Allahabad High Court judgment in the case of Ajanta Paper Products also placed reliance upon the Supreme Court judgment in the case of M/s. Rayala Corporation (P) Ltd. and, based thereon, held that, within the omission of Rule 10, a notice issued under that rule would lapse and no proceedings under that provision could be continued. The notification omitting Rule 10 did not contain any provision for the continuance of proceedings already taken, nor did the amending Act which introduced Section 11A adopt the legal device of creating a fiction by which proceedings under Rule 10 would be deemed to be proceedings under Section 11A. 10. Since much reliance has been placed upon the Judgment in the Rayala Corporation case, we must refer to it immediately. The contention that was raised before the Supreme Court was that a charge had been made against the appellants of violation of Rule 132A(2) of the Defence of India Rules, which was punishable under Rule 132A(4); Rule 132A had been omitted by a Notification dated 30th Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Gwalior Rayon Manufacturing (Weaving) Company v. Union of India and Others [1982 (10) E.L.T. 844] that fully supports the stand of the excise authorities. The Madhya Pradesh High Court noted the judgment of the Allahabad High Court in the case of Ajanta Paper Products and of the Supreme Court in the case of Rayala Corporation. In its view, the decision in the case of Rayala Corporation did not conclude the point. That was a case, it said, relating to an offence under Rule 132A(2) of the Defence of India Rules, which was made punishable under sub-rule (4) thereof. Rule 132A as a whole ceased to be in existence from a specified date and the question was whether proceedings could be validly taken for that offence after its omission. The Supreme Court had held that Section 6 of the General Clauses Act applied to repeals of Central Acts and Regulation but not of Rules and, for this reason, Section 6 of the General Clauses Act was held to be inapplicable to save a prosecution under Rule 132A after its omission. The Supreme Court had also held that the amended Rules, by which Rule 132A had been omitted, did not save a prosecution under the omitted Rule 132A. In the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limit specified in that behalf was 3 months from the date upon which the duty or charge was paid or adjusted. The Assistant Collector of Central Excise was required to determine whether such amount was payable by such person and, if an amount was found to be payable, the person was required to pay it within 10 days or such further period as the Assistant Collector might allow. The substituted Rule 10, that is to say, Rule 10 as it read after 6th August, 1977, altered only the time limit within which the proper officer could issue the show cause notice; he could do so ordinarily within 6 months and, in the three cases specifically set out, within 5 years. For the rest the rule remained the same. The substituted Rule 10 was omitted with effect from 17th November, 1980 and simultaneously Section 11A was introduced into the Act. Section 11A was almost identical to the substituted Rule 10. Even the periods of time aforementioned remained the same. There was, therefore, prior to 6th August, 1977, between 6th August, 1977 and 17th November, 1980 and after 17th November, 1980 power vested in the proper officer to issue notice to show cause why a person should not pay duty or charges short- ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
