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TMI Blog1985 (3) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, respondent No. 1 in this petition issued a notification 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Notification No. 177 of 1980, dated 12-11-1980, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other respondents submitted that though there is no saving clause in the notification, Section 11A is brought on the statute with effect from the same date viz. 17-11-1980 and, therefore, the action 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Supreme Court that from this simultaneous action taken, it should be presumed that there was no intention of the Legislature that acts which were offences punishable under Rule 132A 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings and second is the conclusion of the proceedings. But before the proceedings came to be concluded, the power to conclude those proceedings disappeared from the scene. Therefore, the argument that once the action is initiated, it can be said to have been taken under Rule 10 does not appeal to us. 9. The result of the aforesaid discussion is that the order passed by the Assistant Collector, vide Annexure `H' should be struck down as it was passed without authority of law. As we are inclined to accept the first ground of the petitioners, we do not propose to go into discussion of the other grounds which have been taken by the petitioners. 10. The petition is allowed. The notice, Annexure `D', dated 1-8-1978 and the order, Annexure `H', dated 29-6-1984 passed by the Assistant Collector are declared to be without any authority of law and, therefore, they are quashed. Rule is accordingly made absolute, with no order as to costs. 11. The learned Standing Counsel Mr. S.R. Shah prays for a certificate for leave to appeal to the Supreme Court. In our opinion, this matter does not involve any question of law of general importance required to be decided by the Supreme Court and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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