TMI Blog1985 (3) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... otification exempting processed cotton cloth manufactured on hand-loom or on power-loom from the Additional excise duty leviable thereon under the Act of 1953. The said Notification is issued on 18-6-1963 and is at Annexure `A' to the petition. The petitioners received 31 pieces of cloth a measuring about 2225 metres from one Jayantilal Atmaram for Swastik Cloth Trading Co., through one Chaturbhai Madhabhai of Vijapur for being processed. The said cloth was manufactured on power-looms less than five in number as alleged. Necessary classification lists were submitted from time to time for the period from 18-6-1977 to 26-5-1978 claiming exemption as per the Government Notification dated 18-6-1963. The classification lists were accepted and no duty was demanded at that time. Then on 1-8-1978, a notice was issued by the Superintendent of Central Excise, Annexure `D' to this petition, calling upon the petitioner to show cause why additional duty as per the Act of 1953 should not be demanded from the petitioners under Rule 10 of the Central Excise Rules, 1944. Reply to the said notice was given by the petitioners on 19-8-1978 showing cause. Thereafter, proceedings were ending and no acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 980, Annexure `F' to the petition read as follows :- (1) Where any duty has not been levied or paid or has been short-levied or erroneously refunded or any duty assessed has not been paid in full, the proper officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid, or which has been short-levied, or to whom the refund has erroneously been made, or which has not been paid in full, requiring him to show cause why he should not pay the amount specified in the notice. Provided that - (a) where any duty has not been levied or paid, has been short-levied or has not been paid in full, by reason of fraud, collusion or any wilful mis-statement or suppression of facts by such person or his agent, or (b) where any person or his agent, contravenes any of the provisions of these rules with intent to evade payment of duty and has not paid the duty in full, or (c) where any duty has been erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts by such person or his agent, the provisions of this sub-section shall, in any of the cases referred to above, have effect a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction which was initiated under Rule 10(1) can be continued and concluded even after the omission of Rule 10 because the provisions of Section 11A are substantially the same as those of Rule 10 as it then existed. The learned Standing Counsel also submitted that Section 6 of the General Clauses Act will save the action of the Assistant Collector, in spite of the omission of Rule 10. Prima facie, one would be inclined to accept the submission made by Mr. Shah that Section 6 of the General Clauses Act will apply in such a situation. It is, however, not possible to accept this submission of Mr. Shah in view of the decision of the Supreme Court in the case of M/s. Rayala Corporation (P) Ltd. v. The Director of Enforcement, AIR 1970 S.C. 494 cited by Mr. Dave. The Supreme Court was in that case called upon to consider the effect of omission of Rule 132A of the Defence of India Rules, 1962. It appears from the discussion made at para 12 of the report that while omitting Rule 132A, a provision was made that the rule was omitted except as respects things done or omitted to be done under that rule. In that case, prosecution was not at all started before the rule was omitted. It was contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A of the Defence of India Rules, should go unpunished after the omission of that rule. The Supreme Court negatived that contention observing that when Section 4(1) of the Act was amended, the Legislature did not make any provision that an offence previously committed under Rule 132A of the Defence of India rules would continue to remain punishable as an offence of contravention of Section 4(1) of the Act, nor was any provision made permitting operation of Rule 132A itself so as to permit institution of prosecutions in respect of such offences. This decision of the Supreme Court is thus a complete answer to the submission made by Mr. Shah that Section 11A of the Act which was introduced simultaneously with effect from 17-11-1980 would save the act of the Assistant Collector. 6. The learned Advocate Mr. D.A. Dave also draw our attention to a very recent decision of the Allahabad High Court reported in Ajanta Paper Products, Ratanpura v. Collector of Central Excise, Kanpur, 1982 Excise Law Times 201 (All). The same question as regards the effect of omission of Rule 10 and coming into force of Section 11A of the Act came up for consideration before the Allahabad High Court. The decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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