TMI Blog1982 (6) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... was changed. As per the said changed definition, rolled flat products of 0.16 mm and upto and including 10.00 mm thickness but of any width and generally not cut to length and usually in coil but may be flat or folded, were chargeable to duty. The Excise authorities thus raised the demand on such clearances as the clearances in question were after the revised standard i.e. after October 1,1965 being for the period from November 1, 1965 to November 30, 1971. The order of the Assistant Collector was, however, challenged by the petitioners in appeal to the Collector of Central Excise. The said appeal was dismissed by the Appellate Collector, Central Excise, Bombay, on October 11, 1974 on the ground that the same was barred by limitation. Revision application was preferred against the said order to the Government of India. By its order dated March 28, 1978 the revisional authority, after notice to the petitioners and after granting a personal hearing and after examining the records of the case, rejected the said revision application holding that the demand was correct. Hence this petition under Article 226 of the Constitution. 2. In support of this petition, I have heard Mr. V.R. Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court, on this aspect. The Madras High Court in M/s. Parry Confectionery Ltd., Madras v Government of India and others, 1980 Excise Law Times 468, has at page 473 observed thus : "..... In this connection, we may refer to a decision of the Supreme Court reported in Union of India v. Delhi Cloth and General Mills Co. Ltd., A.I.R. 1963 S.C. 791, wherein the Supreme Court observed that in technical matter like this, the views expressed by the Indian Standard Institution must be preferred. I see from some of the specifications of the Indian Standard Institution produced that the sectional committee which decides these matters are composed of eminent persons in trade, industry and Government as also consumers and other experts. Their views therefore deserve acceptance by court except where there are other strong considerations to the contrary." The Delhi High Court in Porrits Spencer (Asia) Limited v. Union of India and another, 1980 Excise Law Times 679, has at page 684 observed thus : "......In this connection, we may observe that the Supreme Court in the case of Union of India and another v. Delhi Cloth and General Mills Co. Ltd., A.I.R. 1963 Supreme Court 791 = 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd., A.I.R. 1971 Supreme Court 2039 = 1978 E.L.T. (J 399) (S.C). I find the said case to be clearly distinguishable from the facts herein. The Supreme Court has referred to rules 9, 10 and 10-A of the Central Excise Rules. It is on the facts of that case that the Supreme Court has come to a conclusion against the department and dismissed its appeal. Even while doing so, the Supreme Court has referred to a Full Bench decision of the Nagpur High Court holding that rule 10-A does cover a case for increased levy on the basis of a change of law and the further fact that the said decision was confirmed by the Supreme Court by dismissing the assessees appeal therefrom. The said decision of the Supreme Court is Chhotabhai Jethabhai Patel v. Union of India, A.I.R. 1962 Supreme Court 1006. In these circumstances, it is not possible to rely upon the aforesaid ruling in favour of the petitioners herein. My attention was also invited to another decision of the Supreme Court in Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd., A.I.R. 1972 Supreme Court 2563 - 1978 E.L.T. (J 416) (S.C.). In the said ruling the Supreme Court considered its earlier ruling in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied." And still further: "The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us, in view of the provisions of section 4 of the Act read with rule 10A of the Central Excise Rules, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning and applicability of rule 10A. The High Court's view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all. This rule flows from the maxim : 'Expressio unius est exclusio alterius'. But, as was pointed out by Wills J., in Colquhoun v. Brooks, (1888) 21 CBD 52 at p. 62, this maxim `is often a valuable servant, but a dangerous master .........'. The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. More ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
