TMI Blog1980 (7) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... travention of Rules 173-F, 173-G(4) read with 52-A of the Central Excise Rules, 1944, the petitioner had cleared 13250 gross of 50's matches without payment of duty and without bringing them into the statutory accounts maintained for Central Excise purposes by them and without a gate pass. The petitioner was therefore called upon to explain why a penalty should not be imposed on him under Rule 173-Q of the Central Excise Rules and why duty on 13250 gross of 50's matches should not be demanded under Rule 173-Q. This show cause notice was obviously based on a surprise check of the accounts of the petitioners made by the Officers of the Central Excise on 21st July, 1972. It is stated as follows in the annexure that was sent to the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were barred under Section 40(2) of the Act. Section 40 as it stood prior to its amendment in 1973, read as follows - "1. No suit shall lie against the Central Government or against any officer of the Government in respect of any order passed in good faith or any act in good faith done or ordered to be done under this Act. 2. No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of." 3. Mr. U.N.R. Rao, learned Senior Central Government Standing Counsel did not dispute that at the relevant time when proceedings were initiated against the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpiration of six months from the accrual of the cause of action or from the date of the act or order complained of. The two sub-sections operate in different fields. The first sub-section contemplates bar of suits against the Central Government or against the officers by protecting them in respect of orders passed in good faith or acts done in good faith. It is manifest that the second sub-section does not have any words of restriction or limitation of class of persons unlike sub-section (1). Sub-section (2) does not have any words of qualification as to persons. Therefore, sub-section (2) is applicable to any individual or person." 5. The learned Judge further observed as follows with regard to the question whether the words `anything do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordered to be done under the Act. 7. It may be stated in fairness to Mr. U.N.R. Rao, learned Senior Central Government Standing Counsel that the cases before the Supreme Court related to criminal offences for failure to pay the duty as enjoined by the Act. 8. The next case that has to be cited in this context is that decided by Ramaprasada Rao J., as he then was, reported in Loganatha v. Secretary to the Govt. of India, 1974 L.W. 32, the petitioners before the learned Judge was a wholesale trader carrying on trade in manufacturing non-duty paid tobacco under Central Excise Licence No. 31/64. On 28-5-1965 the Central Excise officials inspected the petitioner's warehouse and found that 1730 Kgs of tobacco had been substituted and there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inescapable. After the expiry of this period of time, even though there is an apparent cause of action as is seen from the record or from the materials available, such a cause of action cannot be furthered by any overt action such as a suit, prosecution or other legal proceeding under the Act. The words `anything done or ordered to be done' under this Act is all embracing and would include any statutory duty which a person has to perform under the Act. One such statutory duty which a licensee under the Act has to do is to pay the excise duty over the stock removed from the warehouse. If he unauthorisedly removes the same without subjecting such goods to excise duty and without accounting for such duty in any manner and in the result evades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n provided under Section 40(2) has started. The following principles emerge from the decision of the Supreme Court in Public Prosecutor, Madras v. Raju - AIR 1972 S.C. 2504 = 1978 E.L.T. (J 410) and the decision of Ramaprasada Rao J. in Loganatha v. Secretary to the Government of India - 1974 L.W. Crl. 32 - 1. Section 40(1) of the Central Excises and Salt Act prior to its amendment in May 1973, is not limited to Central Government or officers of the Government but applies to all individuals or persons. 2. The words `anything done or ordered to be done, found in Section 40(2) refer to illegal omissions and infractions of the requirements of the statute. 3. Any suit, prosecution, or other legal proceeding for any illegal omission or inf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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