Bombay High Court
Bajaj Auto Ltd. vs Union Of India on 29 October, 1991
Equivalent citations: 1992(2)BOMCR366, (1991)93BOMLR580, 1992(60)ELT32(BOM), 1992(1)MHLJ107
JUDGMENT Sukumaran, J.
1. 'Bajaj' is a by-word for many Indian industrial Products. Among them are those on wheels, Two wheelers and Three wheelers as they are popularly referred to. Manufacture of these wheeled vehicles entails enormous imports. Imported steel is itself a prominent component in the manufacturing activity of the petitioners - Bajaj Auto Ltd. The petitioner-Company has its factories in Pune and Aurangabad. The basic pattern of manufacturing process or commercial practice is not substantially different.
2. The manufactured products are exigible to excisable duty. Self-Removal procedure is convenient, alike for administration and the assessee. That was resorted to by the petitioners as well. So long as the movements are correct, the accounts accurate and the assessment reasonable, everything will go smooth. Any doubt or dispute in the system will have its halting effect. The petitioner Company had a rub with the Department about the duty payable under the Central Excises and Salt Act, 1944 (hereinafter referred to as "the Act"). The dispute was not in relation to the material imported nor in the final products taken out of the factories. It centered round the vistas of "waste" as the term is understood in Excise parlance in the relevant context.
3. The matter had received attention at one stage by someone fairly high in the hierarchy. The decision was in favour of the petitioner Company. The passage of time and possession of further materials apparently prompted the Department to have a second-thought on the issue. They took the view that a larger duty was due from the petitioner Company. The feel is not enough. A final verdict is necessary. Many steps have taken and many hurdles crossed, before a final verdict is reached. The very first one is for the Departmental authority of the lowest rung; he has to come to a definite, even though tentative, conclusion. Here again, the procedural safeguards - the hallmark of a fair regime of the Rule of Law - require effective and full opportunity being afforded to a person before even a paise is taken from his pocket. Issuance of a show cause notice is one such preliminary step for effectively ensuring the observance of the principles of natural justice. Ordinarily, no assessee could have a complaint on the issue of such a notice. He should only be too happy to have an opportunity to show his palm and his cards and to earn a good chit as it were, from the Department. The petitioner-company felt otherwise, - It has its own reason for feeling so. The very jurisdiction according to the petitioner-Company, for issue of such a notice was non-existent. If power be lacking, it is only an avoidable waste for the petitioner to wander along the corridors of office and to climb up the different and difficult steps in the difficult ladders of officialdom.
4. After furnishing a reply, the petitioner company assailed the notice by approaching this Court. A Bench of this Court issued Rule, the objections of the Revenue notwithstanding. A detailed order was passed by Pratap J. (as he then was) and Savant, J., where the objection of the Revenue was adverted to and the reason for overruling it at that stage indicated.
5. The Revenue did not take kindly to that order. The matter was taken up by Special Leave, in S.L.P. (Civil) No. 8123 of 1991. The Supreme Court by its order dated 10th May, 1991 directed the High Court to dispose of the Writ Petition finally within three months from the date of the order. The further direction was as follows :-
"..... If for any reason, the writ-petition is not so disposed of, it is open to petitioners to seek a revival of the prayer in this S.L.P. and seek permission to proceed with the enquiry so however that the demands if any, raised pursuant thereto are not enforced without the leave of the High Court. So as to enable an expeditious disposal, petitioners will file their counter-affidavit in the High Court within 3 weeks from today, if they have already done so."
6. Though the final hearing was initially fixed in the last week of July, 1991, and the hearing, as a matter of fact, had commenced before the Bench on 22nd August, 1991, the arguments could not be concluded in the case. By an order dated 20th September, 1991 it was ordered by that Bench that the matter need not be treated as part-heard. Arguments commenced de novo before this Bench on 3rd October, 1991 and continued on 4th October, 1991.
7. The petitioner company has to meet a threshold objection. A right royal road is available to the petitioner to take his wheelers, with halting points at the adjudicating authority, appellate/revisional authorities. That is a right conferred by the statute itself. If he feels aggrieved even by the ultimate order passed by the authorities or the Tribunal, a gate-way is open to the High Court, and a narrower one even to the Supreme Court. In such circumstances, a party would ordinarily be directed to pursue that well defined path in his litigational journey. Bye-lanes or blind alleys should not ordinarily be resorted to by a party.
8. Counsel for the petitioners sought to meet this objection, by a contention, prima facie, attractive in its apparel. The very jurisdiction of the authority which has issued the notice is non-existent. In such circumstances, the straight entry into the portals of the constitutional court is permissible. So viewed, the petitioners should be tested as one with a valid ticket - so went the submission.
9. It is true that if jurisdiction be totally denuded, the constitutional courts feel inclined to relieve a citizen of burdensome litigational proceeding before the hierarchical officialdom. That is indeed a good policy. That is an aspect which would certainly weigh with the courts while exercising powers under Article 226 of the Constitution of India. We shall scrutinise the submission seriously and in some detail, as we have been untiringly urged to do by Counsel for the petitioners.
10. The initial jurisdiction of the Assistant Collector of Central Excise to issue the notice is not in issue or in dispute. That is fairly conceded by the petitioners as well.
11. It does not matter whether the absence of jurisdiction arises from the initial lack of it or subsequent loss of it - continued Counsel's submission. The cessation of jurisdiction, according to the petitioners, arose out of the operation of the limitation provision. Section 7 and the proviso thereof were referred to in that connection. Ordinarily, the period within which an assessment under the Central Excise could be made is 6 months. Parliament presumably thought that those engaged in manufacturing activities should not be confronted with a disconcerting unpredictability in relation to their excise obligation. Only a mad and bad government would react recklessly towards the reasonable safeguards needed for those who require greater concentration on the process of production. However, the Revenue has at the same time to be vigilant in protecting its own interests against those who do not have open or honest dealings. The discovery or detection of an unseemly act slyly carried out would necessarily entail time. Those who resort to foul acts, ordinarily do so with a thick cover and camouflage. To locate the black spots and unravel the ugly aspects is not all that easy. It is for this reason that a larger period of five years has been provided under the aforesaid Section for netting the dues.
12. The Supreme Court has now given adequate amplification of its scope and content by authoritative decisions such as Collector of Central Excise v. Chemphar Drugs & Liniments - . The examination of the factual situation in the present case, it is submitted, would take the case of petitioner outside the principles indicated in those decisions. Accordingly, we have been invited to have a scanning of all such aspects and to enter a finding in favour of the petitioners on the question of limitation. The petitioners are optimistic that the finding would be in their favour. In that event, the jurisdiction originally available has been subsequently lost, - contends the petitioner.
13. We are afraid that the concept of jurisdiction in the context of a plea of this nature is quite often confused, and not infrequently, and is not comprehended with necessary clarity. The loosely coined words, the hastily prepared head-notes, and hurriedly referred to passages - all have contributed to the misapprehension of the real legal position. The times when nuances of certain legal concepts like 'jurisdiction had' been discussed from erudite legal angles are now somewhat rear. Specialists have conquered many fields, even in the domain of Law. There is a strong view even among the specialists that it is the general lawyer who had contributed substantially to the overall development of Law. (See the Hamlyn Law Lectures on Income Tax by Murphy, himself a non lawyer). We too have similar experiences. The entire general law is useful in understanding the legal position.
14. The concept of 'jurisdiction' in different contexts such as under Section 115 C.P.C. had arisen from very early times. Addition of a party in a case, [Razia Begum v. Sahebzadi Anwar Begum, the existence of sufficient cause for condonation of delay, [M.L. & B. Corporation v. Bhutnath, AIR 1958 SC 1336; Babu Ram v. Munna Lal, the operation of res judicata precluding a second suit, [Hari Bhakaji v. Naro Viswanath, I.L.R. 9 Bombay 432] were all generally thought of as jurisdictional issues. The employment of the term 'jurisdiction' as regards addition of parties by Lindley L.J. was as early as in 1892, in Moser v. Marsden 1892 1 Ch. 487. That decision was commented upon by the Federal Court in United Provinces v. Mst. Atiqa Begum, . Varadachariar J. spoke with particular reference to the observations of Lindley L.J. as follows :-
"In my opinion, there is no case here of a defect of jurisdiction in the sense in which it is said that consent cannot cure a defect of jurisdiction. It is true that in 1892-1 Ch. 487(A), Lindley L.J. observed that the question was not one of "discretion but of jurisdiction". But as the antithesis shows, the learned L.J. apparently had in mind the difference between the decision of the question of joinder on the interpretation of a rule of law and a direction given by the lower court in the exercise of its discretion, because in the latter case the Court of Appeal would generally be reluctant to interfere. It may even be regarded as a case of excess of jurisdiction within the meaning of Section 115 of the Civil Procedure Code, but that will not make the order void in the sense that it may be ignored or treated as if it had never been passed."
There are then the significant observations of the Supreme Court in Razia Begum's case, supra :
"It would, thus, appear that the courts in India have not treated the matter of addition of parties as raising any question of the initial jurisdiction of the Court. It may sometimes involve a question of jurisdiction in the limited sense in which it is used in Section 115 of the Code of Civil Procedure."
In M.L. & B. Corporation v. Bhutnath, (decided on 2-5-1963), the Supreme Court set aside the order of the High Court when it interfered with a finding of fact of the subordinate Court about sufficiency of cause for the delay in bringing the legal representatives on record. A survey of case law has been undertaken in that case. The decisions in Joy Chand Lal Babu v. Kamalaksha Chaudhary, Kesharder Chamaria v. Radha Kissen Chamaria, were among the cases particularly noted. The observations in paragraph 9 are also not to be overlooked.
15. The question pointedly arose in a case from Kerala, Ittiyavira Mathai v. Varkey Varkey decided by a Five-Judge Bench on 15-1-1963. (This was not noted in the later decision in AIR 1964 S.C. 336). Paragraph 8 occurring at Page 910 would make matters transparently clear. It can be, with profit, extracted in full :-
"(8) It is however contended for the respondent that a decision on a question of limitation involves the question of jurisdiction and in support of this contention reliance is placed on the case reported as Joy Chand Lal Babu v. Kamalaksha Chaudhury . This case laid down no different principle of law. What it said in that connection was quoted with approval in Kesharder Chamaria v. Radha Kissen Chamaria, and those observations are :
"There have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate court does not itself involve that the subordinate court has acted illegally or with material irregularity so as to justify interference in revision under sub-section (c), nevertheless, if the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under sub-section (a) or sub-section (b) sub-section (c) can be ignored."
The further observations in that case on which learned counsel for the respondents mainly relies are :
"The cases of Babu Ram v. Munna Lal and Hari Bhikaji v. Naro Vishwanath, ILR 9 Bom. 432 may be mentioned as cases in which a subordinate court by its own erroneous decision (erroneous, that is, in the view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result."
These remarks are not applicable to the facts of the present case. They apply to cases in which the law definitely ousts the jurisdiction of the Court to try a certain dispute between the parties and not to cases in which there is not such ouster of jurisdiction under provisions of any law, but where it is left to the Court itself to determine certain matters as a result of which determination the Court has to pass act certain order and may, if necessary, proceed to decide the dispute between the parties. The distinction between the two classes of cases is this. In one, the Court decides a question of law pertaining to jurisdiction. By a wrong decision it clutches at jurisdiction or refuses to exercise jurisdiction. In the other, it decides a question within its jurisdiction. In the present case, the question whether there was a sufficient cause was exclusively within the jurisdiction of the Court and the Court could decide it rightly or wrongly."
In the light of the above discussion, it would be clear that a decision on the question of limitation would not be one which goes to the question of initial jurisdiction itself. Looked that way, it would not be obligatory for the Constitutional Court to decide on factual aspects of limitation questions invoking the powers under Article 226 of the Constitution.
16. There are other reasons as well which would make it supremely inexpedient for Constitutional Courts to deal with such questions in the first instances.
17. Issues involving factual findings would require close scrutiny of the materials and documents. This is better done by the officer dealing with the matters almost in a routine manner. He would be familiar with the parties, the persons dealing with the correspondence and acting on their behalf, the nature and extent of the activities of the parties involved, the primary character of the problem posed and the emphasis on and significance attachable to particular aspects in a medley of documents and the multiplicity of transactions. A busy High Court may not as effectively find it easy to scan the documents with as much leisure as an officer on the spot, in intense intimacy with the details. A filtration process through the various levels of remedial structures would only add to the needed clarity. When the finally distilled product is available, it would be easier for the Superior Court to test the blend and feel the taste of the end-product.
18. Even when a Constitutional Court has wide powers to adjudicate any type of the question coming before it, a sense of pragmatism and realisation of practicality would impel it to decline a direct a dealing with the crude materials unprocessed by hierarchical attention and advertence. Thus, for example, the Supreme Court, has power under Article 32, to deal with citizen's grievances impinging upon violation of fundamental rights. Many cases have been dealt with that way. The apex Court had, however, to indicate, in clearly notable words, that it would be desirable not to have a direct walk to the Supreme Court, when the High Court could with equal efficacy, deal with them, at the initial stage. (See Kunubhai Brahmbhatt v. State of Gujarat - .
19. Current statistics of the working of this Court clearly demonstrates the very heavy load of work resting on it. It has come to almost a breaking point; very near a case of the last straw on the camel's back. There are many thousands cases where the High Court has necessarily, and to the exclusion of other agencies, undertake the judicial work. References under the Revenue Laws like Income-tax Act, and the Central Excises & Salt Act, Revisions under the Sales Tax Act, Writ Petitions against orders issued by the Government either as original authorities or as the ultimate ones, in departmental proceedings and administrative matters, are legal works which the High Court cannot avoid. If such matters where attention of the High Court are mandatorily required, are allowed to accumulated in an alarming proportion, it would lead to a crisis in confidence, and shake the faith of the common men in the viability and vitality of the judicial institution. In such a situation, it would be a prudent policy, not to be tempted to deal with matters which could, in the first instance, be dealt with by other administrative or quasi-judicial agencies. It is high time, that the High Court realises its limitations and its responsibility in this regard.
20. On principle, precedent and practicality, we are, therefore, clearly of the view that in circumstances such as those obtaining in present case, it would be improper to invoke the powers under Articles 226 and 227 of the Constitution and undertake the scrutiny of the elaborate evidence on the factual aspects.
21. Many decisions have been cited before us to indicate that High Courts have interfered in matters where further proceedings are found to have been barred by time. Some of the decisions appear, with great respect, to have not embarked upon the detailed considerations of very many aspects, which we have discussed above at some length. In any view of the matter, we are of the view that on the face of it, it is impossible to predicate in the circumstances a clear case where the bar of limitation is attracted. It will be unsafe in such cases, to enter positive findings of fact in relation to the very many ingredients of Section 11A, on the basis of affidavit pleadings as available, the chosen documents as furnished, the defaulted defenses most often come across, and inadequate attention paid in respect of a multiplicity of facets and facts, which require closer attention and detailed discussions. Instances are not rare, where documents furnished by the Petitioner turn out to be incomplete or misleading. Experience shows that there have been even cases of fabrication of documents, which had gone unnoticed in the busy schedule and pressurised work of the Court.
22. It is unnecessary for us to refer to the larger number of decisions which have invoked powers under Article 226 of the Constitution of India and given relief to the parties, as it is not for us to apprise the correctness of the approach indicated in those decisions.
23. The decisions of the Supreme Court in on by the Petitioners, however, has to be referred to and discussed. Though the decision was one rendered on 4-5-1962, probably in view of the utility to those served with show cause notices and who seem to invoke Article 227, it has been reported in 1983 in this specialised journal. Sarkar J. differed in that case from the majority view expressed by Subba Rao & Mudholkar JJ. Even the majority Judgment, did not lay down as a principle, that the High Court should in every case of show cause notice, embark on an enquiry on the question of limitation as linked with the jurisdiction, and grant relief to a party invoking Constitutional remedies. The following observation is very significant :
"If on reading of the said notice, it is manifest that on the assumption that the facts alleged or allegations made therein were true, none of the conditions laid down in the specified sections was contravened, the respondent would have no jurisdiction to initiate proceedings pursuant to that notice. To state it differently, if on a true construction of the provisions of the said two sections the respondent has no jurisdiction to initiate proceedings or make an inquiry under the said sections in respect of certain acts alleged to have been done by the appellants, the responded can certainly be prohibited from proceeding with the same."
(See East India Commercial Co. Ltd., Calcutta v. Collector of Customs, Calcutta - .
It may be observed that in the present case the mere reading of the impugned notice would not take it manifest that the issue of notice is without jurisdiction. The contrary is the real position. In that situation, there could not be a compulsion for this Court to examine the factual details and enter a factual finding and thereafter determine whether the authority was justified in invoking a particular provision in the statute, Section 11A of the Central Excise Act.
24. Apart from the factual distinguishing factors indicated above, we may also observe that a five Bench decision of the Supreme Court on the inter-relationship between limitation and jurisdiction is now available. That is a later decision vis-a-vis East India Commercial Co. case supra. That authoritative pronouncement cannot be overlooked, in the circumstances.
25. It is unnecessary to load this Judgment either by the distinguishing factors existing or on our differential approach from the rulings of the various High Courts including those of the Allahabad High Court in Uttar Pradesh Forest Corpn. v. U.O.I. - , of the Gujarat High Court in Vijay Textile v. Union of India - 1979 (4) E.L.T. 18, of the Karnataka High Court in N. Nagamanickam Setty v. Collector of Central Excise - 1983 (14) E.L.T. 2301 (Kar.), and N. Nagamanickam Setty v. Collector of Central Excise, Bangalore - , of the Calcutta High Court in S.A. International v. Collector of Customs - , of the Bombay High Court in Rubi Mills limited v. Union of India - , of the Madras High Court in Seshasayee Paper and Boards Ltd., Salem v. The Assistant Collector, Central Excise, Salem - , Madras Rubber Factory Ltd. v. Assistant Collector of Central Excise, Madras - , and Light Roofings Ltd. v. Superintendent of Central Excise, Kacheepuram - .
26. We may, however, observe that the decisions of the Bombay High Court , which had been affirmed by the Division Bench in Writ Appeal No. 429 of 1986 had been set aside by the Supreme Court in Special Leave Petition (c) No. 14564 of 1987 and remanded for fresh decision. Ultimately, the Writ Petition was dismissed on 9-3-1990.
27. Another argument advanced was that once a rule is issued, there is no escape for the Constitutional Court than to pronounce a decision on merits. We are unable to accept that as an inviolable and inflexible proposition. A rule is likely to be issued on the basis of the prima facie evaluation of the contentions projected in a writ petition. Quite often, final hearing takes time. That is our sad experience. It may subsequently transpire that the Rule was issued wholly erroneously. This may be in evidence by a Return or even demonstrated sometimes in the course of the hearing on interlocutory relief. If the Court comes to known of the circumstances which make it realise that the mistake was committed by it in issuing the Rule, it does not stand to reason that the party guilty of such misrepresentation or suppression of facts, should receive from the Constitutional Court an indulgence and luxury in the form of compulsory adjudication on the merits of the case. We are unable to read and understand the decision of the Supreme Court in Titaghur Paper Mills v. State of Orissa - in that light, as laying down any such inexorable principle. Of course, if the Court has already spent its time and energy without any reservation on the availability of, or desirability of exhausting, the alternate remedy, it would be hard and improper to decline a pronouncement on the question which has been thrashed out elaborately and fully. That is, however, a different aspect altogether, and does not warrant the wide view that the Constitutional Court is foreclosed for considering the question whether the Rule was totally uncalled for.
28. Such an exercise of the power of the Court, is not a novel one, at any rate, in similar situations. A similar plea was raised way back in 1926, before the Privi Council in Abdul Rahman v. Emperor - (1926) XXIX The Bombay Law Reporter 813. The following passage, compressed in the reputed precision of the Privi Council decisions, gives the complete answer :
"It has, indeed, been submitted by Counsel that inasmuch as special leave to appeal has been granted, the ordinary rules limiting the exercise of this jurisdiction ceased to apply. But this is not so."
The case of Arnold v. The King-Emperor was a case where special leave had been given and where notwithstanding such leave, their Lordships adopted and repeated the language of Lord Waston in In re : Abraham Mallory Dillet which was as follows (P. 173) :-
"The rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review, or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done."
(See Abdul Rahman v. Emperor, 1926 The Bombay Law Reporter, Vol. XXIX, at page 820).
The Supreme Court of India also has revoked special leave granted by it, when facts justifying the revocation had surfaced before the Court.
We, therefore, repel the contention that there is an unavoidable compulsion on us to go into the merits of the case.
On the scope of Section 11A, there are adequate guidelines in the decisions of the Supreme Court. The Collector of Central Excise v. Chemphar Drugs & Liniments - - is one such decision. A stress was made there about the Department having full knowledge about the facts, and the manufacturers' action or inaction or its course of conduct, having a bearing on the attractability of Section 11A. It is, however, to be noted that that was a case where the plea had been already processed by factual examination upto the Tribunal level. The Tribunal entered a finding in that case, fraud has not been established. The Supreme Court declined to disturb that finding. The following observations, occurring at page 279 are, however, significant :
"Whether in a particular set of facts and circumstances, there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case."
Padmini Products v. Collector of C. Ex. - , is again an appeal from the Tribunal. The tests laid down by the Supreme Court in Chemphar Drugs case referred to earlier, were approved of in that decision. The Supreme Court noted about a scope for confusion suggested by the materials in the case, and in absence of contrary evidence to show that the Manufacturer knew that the articles were excisable or required to be licensed, Section 11A could not get attracted. We have also noted instances where the Article 226 of the Constitutional jurisdiction were invoked in context of Section 11A of the Central Excises and Salt Act, 1944, such as Leukoplast (India) Pvt. Ltd. v. U.O.I. - 1985 (20) E.L.T. 70 (Bombay), Ashok Leyland Limited v. Union of India and Others - , Universal Autocrafts v. Union of India - , and B.R. Sule v. Union of India - . It is sufficient to note that on the facts of the present case, no conclusion that Section 11A would not get attracted, could be inferable straightway on the materials. We do not express, even prima facie, our reaction to many of the submissions on merits, lest it should prejudice the Petitioners in consideration of the matter by Department authorities.
29. It is sufficient at this stage to show that every argument to bring in one element or the other of the tests laid down for the applicability of Section 11A, had been attempted to be countered by the Revenue with reference to materials and circumstances. We are not satisfied that such materials, circumstances and submissions are denuded of all force or substance. A clearer and final pronouncement, of course, would require concentrated attention on the pleas, evidence, and materials and evaluation of the principles.
30. In the light of the discussions, we are clearly of the view that the Petitioners have to be relegated to remedies available under the statute itself. This is not a case where powers under Article 226 of the Constitution should be exercised. We decline jurisdiction under Article 226.
31. History contains a Kaleidoscopic view of many curious events. The very concept of the Fundamental Rights and the Constitutional Courts, would appear to have gathered significance and momentum from time when the people in Princely States were as eager to move into the main stream of the democratic set up as their brethren of British India, as the area was known at that time. Mahatma Gandhi, who was to sit at the Round Table, and talk on behalf of the Indian People, was furnished with a note for safe-guarding the rights of the people in the Princely States. That Note continued a reference to the concept of the Fundamental Rights. Later agitations were organised for the realisation of those goals. Gandhiji had led it in Rajkot and Bajaj in Jaipur. (See British Policy Towards India 1905-1939 by Ashton) Soon the country witnessed the ushering in of a Constitution guaranteering to the citizens precious Fundamental Rights. Two of the Bajaj's have sought reliefs in this case from this Court for the enforcement of their fundamental and legal rights. We have considered their contentions, demanding those reliefs. We have ultimately come to the conclusion that having regard to the larger aspects of the working of the Constitution and the restraints which are necessary to keep the Constitutional machinery within its workable sphere, that immediate and direct reliefs should be declined, and that the Petitioners should be directed to pursue another forum where they could get remedy, if deserved. The Writ Petition is dismissed. Certified copy of the Judgment of supplied within one week.