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CEO 1980 Mad 16
[Date of Order: 1980-09-16]
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STO 1980 Bom 2
[Date of Order: 1980-07-28]

Central Excise : Refund of Modvat credit : Rejection of Appeal on the grounds of time bar : It is true that normally the period of limitation would be calculated from the date of the order which in the present case is 13-2-1975. But having regard to the fact that that order was not passed in a regular form, the party's apprehension was that it could not file an appeal from such an order. In these circumstances, the party's consultant had sought clarification by giving certain specimens of the type of orders which are normally passed by the Department. In these exceptional circumstances, the appellate authority ought to have taken into consideration the said letter dated 14-3-1975. This letter indicates that the party bona fide believed that the period of limitation would run from the date of the letter as indicated therein. In view of these peculiar circumstances, the appellate order as well as the revisional order cannot be sustained and both are quashed.(Para 3).

 

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CEO 1980 Guj 10
[Date of Order: 1980-04-11]
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CEO 1980 Bom 11
[Date of Order: 1980-04-09]
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CEO 2010 SC 1154
[Date of Order: 1979-10-16]
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CEO 1979 Bom 7
[Date of Order: 1979-10-09]
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CEO 1979 Mad 17
[Date of Order: 1979-07-20]
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STO 1979 CCEA 1
[Date of Order: 1979-04-30]

Customs : Recovery of contraband goods : Personal penalty : Evidence : Contraband goods were recovered as a result of the search of the residential premises of one Shri S.P. Jain at South Extension, Part II, New Delhi. In his statement recorded immediately after the seizure, the said Shri Jain implicated the appellant as the person who was concerned with these contraband goods and had been keeping these contraband goods in that portion of his premises which had been rented out to him. It is pertinent to note that the keys of the rooms from where the contraband goods were recovered were reportedly with Shri Jain who opened the room in the presence of the witnesses. It is also seen that though Shri Jain tried to show that the said room was rented out to the appellant, there was no documents in shape of lease-deed or rent-deed to support Shri Jain's contention. Therefore, the Board finds that there is no evidence on record to show that the premises from where the contraband goods were recovered, belonged to the appellant(Para 2). Appeal allowed and penalty set aside.(Para 4).

 

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CIO 1979 Guj 2
[Date of Order: 1979-01-12]
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STO 1978 Mad 1
[Date of Order: 1978-08-19]

Central Excise : Claim for rebate under Notification No. 146/74-Central Excises, dated 12-10-1974 : Since, as per clause (1) of the Notification it is mentioned "the average production of the corresponding period the preceding five sugar years", I am of the view that the average should be calculated in this case by dividing the total production by five, even though there was no production during the period October and November in certain of the years. That is the intention of the Notification, and that is why two different types of rebate have been provided, and for the mills which started production in 1967-68, or before, and the other for the mills which started production after 1967-68.(Para 9).

Alternative remedy under Section 35 of the Act : There is neither a decision nor an order in this case for the petitioner to invoke the provisions of Sec. 35 of the Act.(Para 12).The rejection of the claim of the petitioner for rebate made by the Assistant Collector and his `view' as stated in the counter affidavit, cannot take the Place of a `decision or order' contemplated under Sec. 35 of the Central Excises and Salt Act. Further, the present petition is for the issue of a writ of mandamus directing the respondents to grant the petitioner's claim for rebate under the terms of the Notification No. 146/74-Central Excises, dated 12-10-1974. Therefore, petitioner has the remedy only under Art. 226 of the Constitution of India and will not be hit by clause (3) thereof.(Para 13).

 

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STO 1978 SC 2
[Date of Order: 1978-02-11]

Central Excise : Applicability of rate of duty on clearance of the goods : "Clearance” implies removal of excisable goods from the factory of production in a regular and legal manner is not well founded and is not supported by C.E. Rules. Throughout the Central Excise Rules the words "cleared" or "clearance" have been used as a synonymous with "removal"; rule 24 refers to "cleared on payment of duty"; in the case of rule 52, the heading is "clearance on payment of duty" but in the body of the rule reference has been made to "where the manufacturer desires to remove goods on payment of duty'. In Chapter VII-A relating to Self-removal Procedure, reference has been made to "remove" or 'removal' and not to 'cleared" or "clearances". The words "cleared" or "clearances" in the central excise context only mean removal of the goods whether on payment of duty or without payment of duty from a factory or a warehouse. Subject to certain exceptions as stated in rule 9A, the rate of duty where goods are removed from the factory or a warehouse will be the rate of duty in force on the date of actual removal of the goods whether such removal is on payment of duty or without payment of duty.(Para 5). Government held that the rates of duty applicable in this case should be the rates applicable on the dates of removal under Rule 9A(l)(ii).(Para 6).

 

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STO 1976 MP 1
[Date of Order: 1976-11-02]

Central Excise : Proforma credit under Rule 56-A : Admissibility : The second proviso to sub-rule (2) of Rule 56-A did not authorise the Collector to recover the amount taken as proforma credit on the ground that sub-rule (3) (i) (b) was not complied with. The second proviso to sub-rule (2) applies only when the duty paid by the primary manufacturer on the material received by the manufacturer working under Rule 56-A of which credit has been allowed to him is subsequently varied due to any reason resulting in payment of refund to or recovery of more duty from the primary manufacturer. It is plain from the language of the provision that it has no application on the facts of the instant case where the allegation is that the petitioner was wrongly allowed proforma credit by the proper officer because the petitioner had not complied with sub-rule (3) (i) (b). The Collector relied solely on the second proviso to sub-rule (2). In the return as also in arguments, no other provision of law has been pointed out to support the recovery of the amount taken as proforma credit. As the second proviso does not authorise Collector to order recovery of this amount, his order to that extent is plainly in excess of jurisdiction. The Collector's order in this respect was in excess of authority. (Para 5).

Penalty : Section 40 (2) of the Act has no application to penalty proceedings.(Para 6). The Collector acted unreasonably in the exercise of his statutory powers in imposing penalty and that his order was against the principles laid down by the Supreme Court in the case of Hindustan Steel Ltd. v. State of Orissa, 1978 (2) E.L.T. (J 159) = STO 1969 SC 2.(Para 7). The impugned notices in this case taking the objection regarding the non-compliance of sub-rule (3)(i)(b) were issued after a lapse of four years. It is clear that there was no fraud, collusion, or evasion of payment of duty. Even if it be held that the requirement of producing the specific documents referred to in sub-rule (3)(i)(b) is mandatory, the omission in that matter was clearly bona fide. Even the proper officer was under the impression that the requirement was not mandatory otherwise he would have called upon the petitioner to produce the necessary document and would not have allowed it to take proforma credit of the duty. In these circumstances, it was wholly unreasonable for the Collector to start penalty proceedings under sub-rule (4) of Rule 56-A.(Para 10). Order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or quality of conduct was contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so, and that whether penalty should be imposed for failure to perform statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. These observations fully apply to the instant case.(Para 11). On the admitted facts, it is quite clear that if at all there was only a technical breach by the petitioner of sub-rule (3) (i) (b), all along the petitioner acted honestly and there was no loss of revenue to the Government. Having regard to the principles of law laid down by the Supreme Court, it was not only unreasonable but a misuse of power on the part of the Collector to dig out a stale and innocuous default and to penalise the petitioner.(Para 12). The petition is allowed. All the impugned notices and orders are quashed.(Para 13).

 

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CIO 1976 Cal 1
[Date of Order: 1976-05-04]
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CEO 1975 SC 1
[Date of Order: 1975-12-17]
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STO 1975 Ker 2
[Date of Order: 1975-10-15]

Customs : Interpretation of Section 153 of the Customs Act, 1962 : The methods indicated in Section 153(a) are alternative methods any one of which could be attempted in the first instance. The different modes of service provided by the rule also support the view; either tendering to the person (apparently when it is feasible) or attempting to serve on his agent (apparently when one is available) or by sending by registered post. To say that an attempt to tender notice must be made in cases where it is not feasible or even possible or that an attempt should be made to serve on an agent when there is no agent or none is known to exist would be to make the section unworkable.(Para 2). Appeal dismissed.

 

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STO 1975 Bom 1
[Date of Order: 1975-10-13]

Central Excise : Scope and content of principles of natural justice : Whether a party against whom adjudication is to be made and against whom the evidence collected behind his back is going to be used is entitled to cross-examine persons from whom such evidence is collected as a part of natural justice or not : It seems to be a fairly settled position in law that it is not necessary that persons whose statements have been previously recorded must be examined in the presence of the party against whom such previous statements are intended to be used. The rules of natural justice do require that their previous statements must be made available to the party against whom they were intended to be used and such party must be given a fair opportunity to explain the same or comment on them. What would amount to fair opportunity would depend upon the facts and circumstances of each case and since in the instant case such previously recorded statements of Omprakash Kedia together with all the books of account were made available to the petitioners and since by the show cause notice the petitioners were expressly informed that such previous statements and the books were going to be used as evidence against them, we do not think it was necessary for the respondent to examine Kedia in chief or to get his previous statements confirmed from him and no breach of natural justice on that account was involved and it was upto the petitioners to explain those statements or 'com¬ment thereon in such manner as they liked.(Para 8).

Whether the right of cross-examination forms part of natural justice or not : If cross-examination is sought and the same is refused, it will normally amount to breach of natural justice and as such the right of cross-examination must be regarded as forming part of natural justice. No obligation is cast upon any Tribunal exercising quasi-judicial function to keep witnesses present and offer them for cross-examination unasked, provided, of course, their statements already recorded behind the back of the party against whom they are to be used are made available to such party and it would be for the party against whom they are intended to be used to make a specific request to call those witnesses for cross-examination. In the absence of such specific request being made it would not be possible for such party to make a grievance that the principles of natural justice have been committed breach of.

(Para 9)

Grounds of adjudication :The principle, that the decision of a Tribunal would be vitiated if some of the reasons relied on by it for its conclusions turn out to be extraneous or otherwise unsustainable, applied to cases in which the conclusion is arrived at on subjective satisfaction. For, in such cases it would be difficult for superior Court to find out which of the reasons, relevant or irrelevant, valid, or invalid, brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, if it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, Superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in writ petition for certiorari the Superior Court does not sit in appeal but exercises only supervisory jurisdiction and therefore does not enter into question of sufficiency of evidence.(Para 16). An administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be non-existent or irrelevant, can be sustained if the Court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existing grounds could not have affected the ultimate opinion or decision.(Para 17). In the result, both the petitions fail and the rule in each is, therefore, discharged.

 

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CEO 1975 SC 2
[Date of Order: 1975-10-06]
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STO 1975 Bom 3
[Date of Order: 1975-06-17]

Customs : Interpretation of notification : Once the conditions mentioned in paragraph 2 of the said Notification are complied with, it was obligatory to grant the exemption thereunder. Respondent was not entitled to sit in judgment over the certificates produced by the Petitioners and although an opportunity was given to him to state by an affidavit to be filed as to what the Respondents had to say in connection with the certificates furnished, he has not chosen to do so and has without any material on record refused the exemption to the Petitioners. I am not, in the present case concerned with the question as to whether in fact, the Notification applies only to the use of chemicals for agricultural purposes as sought out to be made on behalf of the Respondents. It is quite clear on a plain interpretation of Exh. A, that the exemption is bound to be granted once the conditions mentioned therein are complied with and which in fact is not disputed in this case(Para 6).

Alternative remedy of proceeding in revision under Section 131 of the Customs Act : The Petitioners were entitled to come to this Court at this stage as there was no jurisdiction in the Respondents Nos. 1 to 3 to pass the Orders which they have done. No questions of disputed facts are in any way involved in the present case and an ultimate decision of the Court is inevitable. The Petitioners have complied with certain conditions which is not disputed by the Customs authorities and in that view of the matter the Customs authorities had no jurisdiction not to grant the exemption. Therefore, reject the preliminary contention on behalf of the Respondents. (Para 9) In the result, allow the Petition.

 

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CEO 1975 SC 6
[Date of Order: 1975-02-14]
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CEO 1974 Mad 4
[Date of Order: 1974-11-12]
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