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2015 (7) TMI 1061 - CALCUTTA HIGH COURT

2015 (7) TMI 1061 - CALCUTTA HIGH COURT - TMI - Classification of the switches and stator panel - invoking extended period of limitation - Held that:- A perusal of the show cause notice and the adjudicating order does not reveal there has been any allegation or finding of wilful misstatement or suppression of facts by the petitioner inasmuch as it was not disputed that the detailed functioning of the switches and stator panel was obtained from the petitioner subsequently. The classification made .....

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e point thus raised has also been answered by the Supreme Court in Mohammad Nooh (1957 (9) TMI 42 - SUPREME COURT). - WP No. 1545 of 2008 - Dated:- 27-7-2015 - ARINDAM SINHA, J. Mr. J.P. Khaitan, Sr. Adv., Mr. Sanjoy Bhowmick, Adv., Mr. Partha Banerjee, Adv. for the petitioner Mr. R. Bharadwaj, Adv., Mr. K.K. Maiti, Adv. for the respondents ORDER The Court : The writ petitioner has challenged a show-cause notice dated 9th February, 1994, the following adjudication order dated 30th November, 2005 .....

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and 83.37 in the first schedule to the Central Excise Tariff Act, 1985. The said tariff items read as follows: 85.35 8535.00 Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses, lightning arresters, voltage limiters, surge suppressors, plugs, junction boxes), for a voltage exceeding 1,000 volts 85.37 8537.00 Boards, panels (including numerical control panels), consoles, desks, cabinets and othe .....

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in the show-cause notice. The petitioner however preferred an appeal beyond the period of limitation provided and as such the same was not considered on merits. Mr. Khaitan relied on a decision in the case of U.P. State vs. Mohammad Nooh reported in AIR 1958 SC 86 in which, inter alia, the following was stated: …It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari .....

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has allowed the time to appeal to expire or has not perfected his appeal e.g., by furnishing security required by the statute, should it then be laid down as an inflexible rule of law that the superior Court must deny the writ when an inferior Court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior Court or tribuna .....

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first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court s sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inf .....

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ior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that. He submitted the goods were correctly classified and on queries subsequently made by the revenue, the same answered and therefore it could not be said that there has been wilful mis-statement or suppression of facts. Mr. Bharadwaj, learned advocate appearing on behalf of the rev .....

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which dealt with the question of whether Section 5 of the Limitation Act could be resorted to by the appellate Tribunal in condoning a longer period of delay than what was prescribed under the special statute applicable to it. He also relied on the case of S.S. Rathore vs. State of Madhya Pradesh reported in 1989 (4) SCC 583 (SC) to submit that Mohammad Nooh (supra) had been held to be not applicable to the facts and circumstances of that case which, according to Mr. Bharadwaj, were similar to t .....

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tion of Transwitch , Field Switch and Stator Rotor Panel as Electrical Transformer and current Transformer respectively as described elaborately above, has been suppressed in the classification list submitted by the said company which has resulted in misclassification & short levy of Central Excise duty to the extent of ₹ 47,58, 863/- (Rupees forty seven lakhs fifty eight thousand eight hundred and sixty three) only. With regard to the adjudication order Mr. Bharadwaj submitted that su .....

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declared is as in Mohammad Nooh (supra) regarding judicial review being available to a litigant in a proper case where a superior Court would exercise its jurisdiction in favour of a petitioner who had, inter alia, allowed the time to appeal to expire. The case of S.S. Rathore (supra) relied on by Mr. Bharadwaj had in it the facts that the plaintiff had claimed by suit that he had been wrongfully dismissed from service. The suit was belated. The plaintiff had in the period of delay waited for th .....

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ed in Mohammad Nooh (supra) where the cause arising in the year 1948 was sought to be addressed under Article 226 of the Constitution of India which came into being in the year 1950, on the ground of merger. As such, this Court finds Mohammad Nooh (supra) was overruled on a different point regarding merger of orders of Tribunals and courts as powers of adjudication ordinarily vested in courts are being exercised under the law by Tribunals and other constituted authorities. The declaration of law .....

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the description given by the petitioner in the aforesaid annexure was a mis-description as a wilful mis-statement or such description was in wilful suppression of facts and the goods could not be called switches as opposed to transformers. The case of the revenue as appearing from the show cause notice and the adjudicating order is that the goods though switches were only switches by components but actually transformers. Otherwise too there is no finding regarding wilful mis-statement or suppres .....

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