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2015 (7) TMI 957 - BOMBAY HIGH COURT

2015 (7) TMI 957 - BOMBAY HIGH COURT - 2015 (323) E.L.T. 753 (Bom.) - Invocation of extended period of limitation - determination of relevant date for issue of notice within 5 years - Duty demand u/s 11A - Held that:- If the goods and which are excisable have to be cleared on payment of duty, but if they are exempted from payment of such duty, it does not mean that there is no power in the authorities to verify and scrutinise the documents based on which the clearance is made. One of the documen .....

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to hold that a separate period is prescribed for recovery of duty in case of this nature or that the period of five years prescribed would have to be computed only when the breach or violation of the Exemption Notification has come to the knowledge of the Department subsequently. It may be that such fact is discovered or comes to the knowledge of the authorities subsequent to the clearance, however, when the Department desires to recover the amount of duty, then, it must adhere to the period pre .....

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m the whole or any part of the duty of excise leviable thereon. - Equally, if there is any condition to furnish a Bond and in that behalf it is prescribed that in the event the terms and conditions on which the bond has been given and accepted are breached and violated, a demand can be raised, that that stipulation will not mean that the mandate of section 11A is any way diluted or can be interpreted with the aid of such term or condition of the Bond. Thus, the terms and conditions of the Exempt .....

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stand and which we find cannot be accepted because the plain language of the statute or the words of the section cannot be brushed aside or ignored.

In the light of the clear language of the Statute the Hon'ble Supreme Court arrived at somewhat similar conclusion. In the case of Ahmedabad Manufacturing and Calico Printing Co., Ltd. (supra) the Hon'ble Supreme Court concluded that the mistake can be corrected but the tax can be recovered in the light of the provisions enabling such r .....

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specific period, then, the exercise of that power is contemplated within the said period, else there is a fetter or restriction to recover the duty.

Tribunal's order is ex-facie erroneous and unsustainable in law. It is vitiated by complete non application of mind as well. That the fraud is of great magnitude and that involvement or the act is admitted does not mean that recovery of duty because of such fraud or as a result of it can be made at any time under section 11A. This was cl .....

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e with Mr. Neelesh Kalantri JUDGMENT ( Per S. C. Dharmadhikari, J.) These Central Excise Appeals raise common questions and therefore were heard together. They can be conveniently disposed of by a common Judgment. The Appeals arise out of final orders passed by the Customs, Excise and Service Tax Appellate Tribunal, Bench at Mumbai dated 3rd July, 2013. 2) The Appeals raise the following substantial questions of law: (a) Whether under the facts and circumstances, the Appellate Tribunal erred in .....

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lf. The facts necessary to appreciate the rival contentions are that the Appellant in Appeal No. 96 of 2014 is a sole proprietor carrying on business in the name and style of M/s. Vibha Impex and claims that it is a 100% Export Oriented Unit (EOU). The factory was earlier located at Malegaon and later on it shifted to another village but within the same district, namely, Nashik. The Appellant is engaged in the manufacturing of various types of Polyester Yarn and Fabrics falling under Chapter 54 .....

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o setup a 100% EOU unit. The said Development Commissioner granted the permission on 9th November, 2001. The annual capacity for manufacture of yarn and fabrics was estimated at 3048.64 metric tons and 33,60,000 meters respectively. The Appellant also executed and submitted a letter of undertaking dated 26th March, 2002 in order to comply with the terms of the permission. The Appellant also obtained a Customs licence dated 28th January, 2002. The Appellant also executed a Bond in the sum of S .....

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April, 2002 to January, 2003. The Central Excise Department carried out a search of the Appellant's factory premises. In the course of the same, the Central Excise Department seized various documents for scrutiny under a panchanama drawn on 10th October, 2002. In the course of the search, the Central Excise Department alleged that the Appellant installed certain machines and there was a short payment of duty amounting to ₹ 94,498/. There are shortages noticed in the manufacture of Pol .....

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erned with the details of the investigations. Suffice it to note that every step of the above nature eventually led to issuance of show cause notice dated 27th November, 2009. That notice proposed to recover Central Excise Duty amounting to ₹ 2,73,41,250/for alleged diversion of inputs (Yarn), during the period April, 2002 procured without payment of duty under CT3 procedure. The diversion into local domestic market is in utter violation of the terms and conditions of the Notification No. .....

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rred by limitation prescribed in section 11A of the Central Excise Act, 1944. 7) This plea was specifically raised in the reply to the show cause notice by the Appellant. It was argued that the disputed period is April, 2002 to January, 2003. However, the show cause notice is dated 27th November, 2009. Therefore, even the extended period of five years is over. The show cause notice is issued after a long gap of six years. In the circumstances, the demand is time barred. 8) In dealing with such c .....

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se notices were issued within five years from such development. None of the decisions relied upon by the Appellant therefore will be of any assistance. The Tribunal concluded that as the Appellants are not disputing the demands on merits before the adjudicating authority nor in the present Appeals, there is no substance in their contention that the demands are time barred. Concluding thus, the Appeals were dismissed. In the order in original as well, the adjudicating authority concluded that the .....

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nd is not time barred. 9) Mr. Sridharan has assailed this part of the conclusion of the authorities and submitted that there is a error of law and apparent on the face of the record. Both, the adjudicating authority and the Tribunal lost sight of the fact that if there is a violation or breach of the condition of the Exemption Notification, whereby the duty demand arises and if that is not honoured, then, recovery proceedings can be initiated, but for that, there is a clear provision in the Cent .....

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. However, proviso to sub section (1) of section 11A clarifies that when any duty of excise has not been levied or paid or has been short levied or paid or erroneously refunded by reason of fraud, collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty by such person or his agent, sub section (1) will have effect and for the words one year the words five years ought to .....

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ed or has been short levied or short paid, then, the relevant date is the date on which duty is to be paid under the Act or rules made thereunder. This provision has a direct nexus or connection with the date of payment and as postulated by the Act and the Rules. In the circumstances, the demand raised in the present case is ex-facie time barred. Mr. Sridharan would submit that the concept of cause of action has been erroneously read in these provisions. The legislature has circumscribed and res .....

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s that the period of five years would be adequate for this purpose. The clause therefore was amended accordingly. The proposal was that there shall be no time limit for issuance of notice of recovery in the cases noted above. 10) Mr. Sridharan submits that the understanding of the Tribunal in confirming the order of the adjudicating authority therefore would mean reading into the provision something which is not specifically there. Mr. Sridharan has invited our attention to the decisions relied .....

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f action would be the determinative factor or the knowledge or detection of fraud would be the starting point. In the circumstances, according to Mr. Sridharan, the impugned orders deserve to be quashed and set aside. 11) Reliance is placed upon the Judgments of the Hon'ble Supreme Court of India, which have been interpreting section 11A. The principal amongst them are Judgments in the case of J. K. Spg and Wvg Mills Ltd. vs. Union of India reported in 1987(32) ELT 234, Ahmedabad Manufacturi .....

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le collection of levy of duty. He would submit that sections 3, 4, 5 and 5A of the said Act should be read together. Reading of the same would disclose as to how, when there is Exemption Notification, the law postulates a inquiry into the violation or breach of the conditions upon which the exemption has been granted. If the breach or violation of the conditions of the Notification has to be probed and investigated, then, the duty liability would occur only after such probe or inquiry is complet .....

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e vs. Kalvert Foods India Pvt. Ltd. reported in 2011 (270) ELT 643. Mr.Pakale has pointed out that in the present case (CEXA/182/2014), the unit M/s. Jannat Fabrics claims to be a 100% EOU. Mr. Pakale submits that it was the intimation from the Development Commissioner on 28th December, 2006 which triggered the inquiry or investigation. There is an admission of the proprietor in his deposition dated 6th December, 2009 that Polyester Yarn has not been utilised or used in the manufacture of export .....

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etrated by M/s Jannat Fabrics and it was discovered and came to the knowledge of Revenue only during investigation. Once the conditions of the Exemption Notification are not complied with then, the benefit of that Notification becomes unavailable. Then, the demand can be raised. In the present case, there is therefore no time limit. The provisions of section 11A of the Central Excise Act, 1944, in any event, would have to be construed and interpreted in this light. 13) Apart from the case of M/s .....

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the Division Bench of this Court but has interpreted the word payable in the light of the relevant statutory provisions is the submission. Mr. Pakale has also invited our attention to the compilation which was tendered by Mr. Sridharan and particularly the Central Excise Rules. Mr. Pakale submits that the language of the Rules would enable in this case to determine the time and manner of payment of duty. In the present case, Mr. Pakale would submit that this being a case of fraud, the law laid .....

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evied 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 refunded, whether or not such non-levy or non-payment, short levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisesable goods under any other provisions of this Act or the rules made thereunder, a Central Excise Officer m .....

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suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this subsection shall have effect, as if, for the words one year, the words five years were substituted: Provided further that where the amount of duty which has not been levied or paid or has been short-levied or short-paid or erroneously refunded is one crore rupees or less a notice under this subsection .....

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f such stay shall be excluded in computing the aforesaid period of one year or five years, as the case may be. (2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under subsection (1), determine the amount of duty of excise 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. (2A) Where any notice has been served on a person under s .....

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where it is possible to do so, shall determine the amount of duty of excise which has not been levied or paid or has been short-levied or short-paid or erroneously refunded, within a period of six months; from the date of service of the notice on the person under subsection (1). (2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty before service of notice on him u .....

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the period of one year referred to in subsection (1) shall be counted from the date of receipt of such information of payment. Explanation 1. Nothing contained in this subsection shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or was erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made Therer-under with intent to ev .....

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01 receives the assent of the President. (3) For the purpose of this section, ( i) refund includes rebate of duty or excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) relevant date means; ( a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid ( A) where under the rules made under this Act a periodical return, showing particulars of .....

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excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund. 15) A perusal of the above section would reveal that the same confers powers for recovery of duty not levied or not paid or short levied or short paid or erroneously refunded. Sub section (1) clarifies that when any duty of excise has not b .....

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h the duty which has not been levied or paid or which has been short levied or short paid or to whom the refund has erroneously been made, requiring him to show cause as to why he should not pay the amount specified in the notice. It is stated in the first proviso that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the p .....

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m and when it is more than 1 crore, no notice under this subsection shall be served without the prior approval of the Chief Commissioner of Central Excise. The Explanation has no application to the present case. Various sub sections of this provision enable recovery of the amount after sub section (1) is complied with. Sub section (2A) enables determination of the amount of the duty within a period of one year in cases of fraud etc., whereas in other case it has to be within a period of six mont .....

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opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in subsection (1) shall be counted from the date of receipt of such information of payment. Explanation 1 to sub section (2B) reads as under: Explanation 1. Nothing contained in this subsection shall apply in a case where the duty was not levied or was not paid or was short-levied or was short-paid or .....

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ovisions of sub section (2B) shall not apply to any case where the duty had become payable or ought to have been paid before the date on which the Finance Bill, 2001 receives the assent of the President. For the purpose of section 11A, the term relevant date has been defined. Thus, a perusal of this section and carefully would denote that it enables recovery of duty not levied or not paid or short levied or short paid or erroneously refunded. The recovery is after issuance of a show cause notice .....

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al return, showing particulars of the duty paid on the excisable goods removed during the period to which the said return relates, is to be filed by a manufacturer or a producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed. Where no periodical return as aforesaid is filed, the last date on which such return is to be filed under the said rules and in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder. .....

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his contention. It is not possible to accept this contention and for more than one reason. 18) If the goods and which are excisable have to be cleared on payment of duty, but if they are exempted from payment of such duty, it does not mean that there is no power in the authorities to verify and scrutinise the documents based on which the clearance is made. One of the documents at the stage of clearance refers to the Exemption Notification and thereafter the person clearing the goods or removing .....

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944 and particularly Rules 9 and 49 would be enough to record this conclusion. Further, the terms and conditions of the Exemption Notification and the Bond would indicate as to how it is possible to ensure compliance of law at various stages. Thus, the Rules and Rule 173G(2A) read with the proviso thereto would indicate as to how goods which are exempted have to be removed and cleared. However, Mr. Pakale's reliance on para (d) of the Exemption Notification No. 54 and the Form B17 (General S .....

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ation of the Exemption Notification has come to the knowledge of the Department subsequently. It may be that such fact is discovered or comes to the knowledge of the authorities subsequent to the clearance, however, when the Department desires to recover the amount of duty, then, it must adhere to the period prescribed. If the period is prescribed of five years and that has to be computed from the relevant date, then, we cannot read into this definition of the words relevant date something more .....

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ind from a reading of section 3 which falls in the same Chapter that the same specifies the duties in the Schedule to the Central Excise Tariff Act, 1985 to be levied. Sub section (1) thereof provides that there shall be levied and collected in such manner as may be prescribed a duty of excise to be called the Central Value Added Tax on all excisable goods (excluding goods produced or manufactured in special economic zones) which are produced or manufactured in India as and at the rates set fort .....

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ty of the duty and the specification thereof. By section 4, valuation of excisable goods for purposes of charging of duty of excise is dealt with. There, one would find the definition of the term 'assessee' and it is clearly stated that where under this Act, the duty of excise is chargeable on any excisable goods with reference to their value, then, on each removal of the goods, such value shall in a case where the goods are sold by the assessee, for delivery at the time and place of rem .....

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t may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after removal) as may be specified in the notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon. 19) The Assessing Officer merely assessees and recovers the duty on the goods and when they are removed. Therefore, the Assessing Officer and who is obliged to ensure compliance of the terms a .....

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yment of duty and the duty can be recovered. That power of recovery is conferred by section 11A. In these circumstances, neither of these provisions nor their interpretation as suggested would be of any assistance to Mr. Pakale. 20) Equally, if there is any condition to furnish a Bond and in that behalf it is prescribed that in the event the terms and conditions on which the bond has been given and accepted are breached and violated, a demand can be raised, that that stipulation will not mean th .....

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venue will be the determinative and decisive date. If that is beyond the period of five years, then, section 11A will have to be interpreted accordingly is the express stand and which we find cannot be accepted because the plain language of the statute or the words of the section cannot be brushed aside or ignored. We find that the words being such and therefore we cannot accept this contention of Mr. Pakale. In submitting as above, Mr. Pakale ignores the Judgment of the Hon'ble Supreme Cour .....

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there is no stay of service of notice there is no scope for excluding any time from the period of limitation as per this Explanation. 17. If a very strict interpretation is given, notice should have been issued before passing the order of stay so that service of the notice could be blocked. But such an extreme view is not necessary for understanding the contours of the Explanation. 18. In considering whether the extension of time permitted in S. 11A of the Act can be liberally construed or that .....

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at case that excessive retrospective operation prescribed by a taxing statute would amount to contravention of fundamental rights, and in support of that contention, those appellants made reliance on the decision of this Court in Rai Ramakrishna v. State of Bihar (1964) 1 SCR 897 : (AIR 1963 SC 1667) and Jawaharmal v. State of Rajasthan (1966) 1 SCR 890 : (AIR 1966 SC 764). In the former decision, this Court has pointed out that if the retrospective feature of a law is arbitrary and burdensome, .....

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isions by minimising the gravity of the hardship on the assessees. That endeavour resulted in the judicial pronouncement in J. K. Spinning and Weaving Mills (AIR 1988 SC 191) (supra) by placing those provisions subject to the time limit fixed under S. 11A. 20. If the said rider was not imposed by this Court as per the decision in J. K. Cotton Spinning and Weaving Co. case (AIR 1988 SC 191) (supra), what would have been the fate of Rules 9 and 49 (as amended) in the wake of the challenge to its v .....

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ssued under any one of the four conditions: (i) when duty of excise has not been levied on the commodity; (ii) when such duty has been short levied; or (iii) When such duty, though levied, has not been paid;or (iv) when such duty levied was only short paid. 22. If any one of the above conditions exists, the notice contemplated therein can be issued. It is an extremely difficult proposition for acceptance that Collector of Central Excise was prevented from issuing a notice to the appellant in thi .....

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been issued at all, could the Collector of Central Excise have issued a notice under subsection (1) to S. 11A of the Act. The answer is, that the Collector could still have issued a notice. If so, the suspension of the circular by the order of the Court would not have prevented the Collector from issuing the notice. The effect of the Court order dated 1281981 was only to keep the circular in suspended animation so far as the appellant is concerned and nothing more. 21) Mr. Pakale's reliance .....

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orted equipments. Therefore, the conditions were found to be continuing in nature. It is upon such conclusion that the Hon'ble Supreme Court sustained the show cause notice and the demand. It then interpreted section 125(2) of the Customs Act, 1962. In reinforcement of this conclusion and which we have adverted to hereinabove, the Hon'ble Supreme Court concluded that the Department is taking shelter under the provisions of subsection (2) of section 125 of the Act. However, on a plain rea .....

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of this decision concluded that fine has been imposed in that case. The continuing nature of the imposition was therefore an exercise and which was falling for consideration of the Hon'ble Supreme Court of India. This decision can have no application to the facts of the present case. 22) In the case of Kalvert Foods (supra), the Hon'ble Supreme Court of India found and on facts that the first Respondent before it was a company engaged in the manufacture of food products. On 22nd November .....

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Appellate Tribunal (CEGAT) was filed and the CEGAT found that the Respondent was not guilty of clandestine removal of excisable goods and also the goods were excisable inasmuch as they were not packed in the containers and therefore not required to pay Excise Duty. Thus, against such a conclusion of the CEGAT that the matter was carried to the Hon'ble Supreme Court of India. The rival contentions have been noticed and thereafter, the Hon'ble Supreme Court found that the company had admi .....

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g to its dealers and distributors is clearly proved from the materials on record. In the aforesaid position and since there was clandestine removal of excisable goods the period of limitation in the present case would have to be computed from the date of their knowledge, arrived at upon raids on the premises. This observation in para 27 cannot be read in isolation. That paragraph will have to be read as a whole. That paragraph read as a whole and with the preceding paragraphs as also the subsequ .....

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of five years could be computed not from the relevant date as set out and defined but from the knowledge of fraud. 23) In the view that we have taken, it is not necessary to refer to the decisions relied upon by Mr. Sridharan. Suffice it to note that in the light of the clear language of the Statute the Hon'ble Supreme Court arrived at somewhat similar conclusion. In the case of Ahmedabad Manufacturing and Calico Printing Co., Ltd. (supra) the Hon'ble Supreme Court concluded that the mis .....

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