Madras High Court
T.K. Abdul Jabbar (Died) vs Collector Of C.Ex. And Customs on 14 April, 1988
Equivalent citations: 1989(44)ELT610(MAD)
ORDER
1. This writ petition has been filed under Art. 226 Constitution of India praying for the issue of a Writ of certiorari to quash the order of the respondent in his proceedings in C. No. V/15/14/78 CX. 3/Order No. 6/79 dated 10-5-1979 imposing duty at the appropriate rate on 450.250 kgs. of Smoking Mixture under Rule 9(2) of the Central Excise Rules, 1944 and also imposing a penalty of Rs. 1,000/- under Rules 9(2), 52-A, 173-2 and 210 of the Central Excise Rules, 1944 for the alleged clandestine removal of tobacco from L.2 premises situate at No. 50, Palayam Bazaar Road, Tiruchirapalli.
2. It is stated inter alia in the affidavit filed in support of the writ petition that the petitioner Abdul Jabbar was holding L.2 Licence, No. 93/72 for about seven year prior to the filing of the writ petition and was specially authorised to manufacture smoking mixture for pipes. He was receiving tobacco for such manufacture after payment of duty at the appropriate rates. He was carrying on business and stocking the said tobacco at his L.2 premises on Palayam Bazaar Road, Woraiyur, Tiruchi 3. While so, on 23-12-1976 the Inspector of Central Excise, Tiruchy, visited the business premises of the petitioner and verified the accounts, when it was noticed that the petitioner had manufactured 450.250 kgs. of smoking mixture for pipes falling under Tariff Item 411 [This should read Tariff Item 4II(4).] (54) of the Central Excise Tariff from 1-3-1973. Petitioner was informed that he was manufacturing smoking mixture without a proper and requisite L.4 licence therefor, whereas what he had was only a L.2 licence. The case against him was that he had disposed of the said smoking mixture without paying the Central Excise duty leviable thereon and without observing the prescribed Central Excise Regulation. The petitioner informed the Inspector that he had been having L.2 licence No. 93/72 for dealing in duty paid tobacco and was in fact purchasing duty paid tobacco from two other warehouse licensees and that he had been manufacturing smoking mixture for pipes under the said L.2 licence even from 1-3-1973, and he did not know he had to take out a licence in form L.4 for manufacturing smoking mixture for pipes and also to pay further duty thereon. Even the officers of the petitioner's range who were periodically inspecting his business premises from 1973, it is the case of the petitioner, did not inform him about any need of getting a licence in form L.4 in place of L.2 licence. He was also not collecting any Central Excise duty from any of his customers. But, his representations were not accepted and a new show cause notice was issued to him on 2-12-1978 charging him of contraventions of Rule 9(1), Rule 52-A read with Rule 173-G(2), Rule 174 read with Rule 173Q(i)(e) and Rule 53 read with Rule 210 of the Central Excise Rules, 1944. Petitioner submitted his explanation to the said show cause notice, pointing out that the imposition of penalty under the Rules was not justified and warranted and the imposition of duty under Rule 9(2) on 450.250 kgs. of smoking mixture for pipes valued at Rs. 16,226.75P. was illegal. Finally, he contended that he had not committed any offence under the Rules and that his having manufactured smoking mixture from 1-3-1973 under L.2 licence instead of L.4 licence was not, however, wilful. The Collector did not accept the explanation, but passed the impugned order holding that the manufacture of smoking mixture fell under Tariff Item 411 [This should read Tariff Item 4II(4)](4) of the Central Excise Tariff Schedule without a L.4 licence and clearance of smoking mixture so manufactured without payment of duty thereon from 1-3-1973 was not in accordance with the Central Excise Rules. He further held that the plea of limitation raised on behalf of the petitioner to the effect that the demand under Rule 10 of the Rules is barred by limitation, had no force. The petitioner was therefore held guilty of contravention of the Rules and levied a penalty as well as duty as aforesaid. The petitioner also refers to the order of the Collector of Central Excise dated 10-5-1979 for further details. It is this order that is challenged in this petition.
3. When the writ petition was taken up for hearing, the only contention that has been raised before me is that both the appellate as well as the revisional authorities have gone wrong in not having properly construed the provisions of Section 5 and Section 29(2) of the Limitation Act read with Section 35 of the Central Excises and Salt Act. It is relevant to note that Chapter VI-A of the Act had been introduced into the enactment comprising new Sections, namely Sections 35, 35-A to 35-Q in the place of original Sections 35, 35-A coming in Chapter VI, by amending Act 44 of 1980. The provisions of Chapter VI-A took effect from 11-10-1982 as per notification. In the instance case, the appeal was filed by the petitioner before the Central Board on 4-11-1979 and it was dismissed on 27-12-1979.
Thereafter, the revision was filed by the petitioner on 28-10-1980 to the Central Government. It is contended that the appellate as well as the revisional authorities have not properly applied the principle laid down in Mangu Ram v. Delhi Municipality . In this regard Head-note appearing at page 105 of the report which is as follows, is relied on by learned Counsel for the petitioner :-
"There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in Section 29, sub-section (2) is concerned. Since, under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29 sub-section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. The time limit of 60 days laid down in sub-section (4) of Section 417, Criminal P.C. (1898) is a special law of limitation and there is nothing in this special law which expressly excludes the applicability of Section 5, Limitation Act. Here provision of a period of limitation of Section 417(4), in however peremptory or imperative language, is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it."
The learned Standing Counsel for the Central Government brought to the notice of this Court in Palayam Rangappa v. Deputy Secretary to the Government of India (1979 E.L.T. 32), Toshiba Anand Lamps Ltd., Cochin v. The Superintendent of Central Excise (1979 E.L.T. 602) and A. Raman and Co. v. Union of India (1981 E.L.T. 592) and submitted that the above provisions in Chapter VI-A of the Act are not applicable to this case and as and when the appeal was preferred, the limitation that was then prescribed under the Central Excises and Salt Act, 1944, was applicable so far as the condonation of delay is concerned, and the provisions of Section 5 and Section 29(2) of the Limitation Act are not applicable. Learned Counsel for the petitioner, in this regard, submits that Section 29(2) of the Limitation Act, read together with the ratio in Mangu Ram v. Delhi Municipality would reveal that any delay that occurs even in the case of proceedings before a quasi-judicial or an executive authority can be the subject-matter of condonation and the principles laid down in the decisions under Section 5 of the Limitation Act are applicable. In this case, according to learned Counsel, though four days' delay was stated to have occurred, it was only a delay of one day that had actually occurred.
4. The point that arises for determination in this petition is, whether the principles laid down in the several rulings referred to above have to be applied to the case of the petitioner.
5. In the above decisions, it has been clearly laid down that with respect to proceedings before the executive authorities, the rules relating to the law of limitation in Section 5 and 29(2) of the Limitation Act are not applicable. It is this law that governs the instant proceedings before the appellate and revisional authorities. Therefore, when the appellate and the revisional authorities have held that they have no power to condone the delay, and especially when the delay was said to be four days, that cannot be the subject-matter of condonation. The conclusion of the authorities is correct and in accordance with law. Therefore, the order of the respondent, required to be quashed, has become final as, since Chapter VI-A of the Act had come into existence on the statute book only by way of an amendment to the Act, those provisions cannot be made applicable to the facts of the present case which are long prior to the amendment. Under these circumstances, there are no merit in the writ petition and the same is dismissed with costs. Counsel's fee Rs. 500/-.