Bombay High Court
Laxmi Board & Paper Mills Pvt. Ltd. vs Union Of India on 18 September, 1990
Equivalent citations: 1991(51)ELT329(BOM)
JUDGMENT Pendse, J.
1. The controversy in this petition stands concluded by two decisions of this Court in B. K. Paper Mills Pvt. Ltd. v. U.O.I. [1984 (18) E.L.T. 701] and in Central India Spg., Wvg. & Mfg. Co. Ltd. v. U.O.I. [1987 (30) E.L.T. 217). In view of these two decisions, both the counsel state that the present petition is liable to be dismissed.
2. Mr. Thakkar, learned counsel appearing on behalf of the petitioners, submitted that as regards demand notice dated October 16, 1980, by which the Superintendent of Central Excise, Kalyan demanded a sum of Rs. 4,37,318.22, the order passed by the Asstt. Collector confirming the demand cannot be sustained. The learned counsel urged that the demand notice dated October 16, 1980 was issued in exercise of powers conferred under Rule 10 of the Central Excise Rules, 1944 and the duty demanded was short levy for period commencing from May 1, 1980 to September 30, 1980. It was urged that Rule 10 was repealed on November 17, 1980 and was substituted by Sec. 11A of the Central Excises & Salt Act, 1944 (hereinafter refereed to as the 'Act'). It was urged that on deletion of Rule 10 on November 17, 1980, the Assistant Collector could not have continued the proceedings commenced under Rule 10 and, therefore, the confirmation of demand in pursuance of notice dated October 16, 1980, cannot be sustained in. In support submission, reliance is placed on the decision of the Gujarat High Court in Amit Processors Pvt. Ltd. v. U.O.I. [1985 (21) E.L.T. 24]. We are unable to accept the view taken by Gujarat High Court. Section 6 of the General Clauses Act, 1897 provides that where any Central Act or Regulation made is repealed, then, unless a different intention appears, the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such obligation and such legal proceeding can be continued or enforced as if the repealing Act or Regulation had not been passed. It was contended on behalf of the petitioners that Section 6 of the General Clauses Act has no application, because it refers to repeal of Central Act or Regulation and not to rules made under the Central Act. In support of the submission, reliance is placed on the decision of the Supreme Court in Rayala Corpn. v. Director of Enforcement (AIR 1970 S.C. 494). The reliance on the decision is not accurate. The Supreme Court was examining the question as to whether the High Court should have exercised powers under Section 561A of the Code of Criminal Procedure for quashing proceedings on the basis of a complaint filed on March 17, 1968 by Director of Enforcement, New Delhi. It was contended that proceedings had become invalid because of omission of Rule 132-A(2) of the Defence of India Rules. It was urged that after the amendment, initiation of new proceedings cannot be permitted. The Supreme Court while examining this argument, observed that Section 6 of the General Clauses Act cannot apply on the omission of Rule 132A of the Defence of India Rules for two obvious reasons (i) that Section 6 only applies to repeals and not to omissions; and (ii) applies when the repeal is of a Central Act or Regulation and not of a rule. Relying on the observation that Section 6 applies only to repeals of Regulation and not of rule, it was urged that after repeal of Rule 10 the proceedings could not be saved by resort to Section 6 of the General Clauses Act. Rule 10 was framed in exercise of powers conferred under that Act and while Rule 10 was repealed, Section 11A of the Act was amended and an identical provision was inserted. It is not in dispute that Rule 10 was repealed on November 17, 1980 and on the same date, Section 11A of the Act came into operation. It is also necessary to bear in mind the definition of expression "rule" under Section 3(51) of the General Clauses Act. The expression "rule" shall mean a rule made in exercise of a power conferred by any enactment and shall include a regulation made as a rule under any enactment. In our judgment, the provisions of Section 6 of the General Clauses Act would apply and the proceedings already commented while Rule 10 was in operation can be determined even after Rule 10 was deleted. The contention urged on behalf of the petitioners in respect of demand notice dated October 16, 1980, is, therefore, required to be repelled.
3. Accordingly, petition fails and rule is discharged with costs.