TMI Blog1984 (6) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions, whether of the Rules or of the Act, could be invoked, was not settled, so far as the Tribunal is concerned, inasmuch as two Benches had, at different points of time, enunciated propositions which conflicted with each other. Taking note of that position, and observing that the questions being of great importance, it was necessary and proper that a Larger Bench be constituted for resolving the difference, the Bench drew up a Reference Order, being Order No. 1008-1014/1983-B, dated 30-9-1983 formulating below-mentioned points for consideration of the Larger Bench; namely :- (1) (a) Whether a show cause notice issued before 6-8-1977 under rule 10 or 10A (as they stood prior to 6-8-1977) and the proceedings commenced thereunder survive even after substitution of the said Rules on 6-8-1977 ? (b) For short levy or non-levy, which occurred prior to 6-8-1977 and for which show cause notice is issued after 6-8-1977 what rule should be invoked, the rules as they existed before 6-8-1977 or the substituted rules ? (2) (a) Whether show cause notice issued before 17-11-1980 under rule 10 and the proceedings commenced thereunder, survive even after the omission of the said rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . ED(SB)(T) 172/ 82-D (M/s. Kanpur Bottling Co. Pvt. Ltd. v. Collector of Central Excise, Kanpur) which dealt with refund application under rule 11 and where concept of 'breathing time' was introduced. The Bench seized of these appeals, observed that there was a direct conflict between the views of the two Benches; namely, that of M/s. Anna Aluminium case and Pyrites Phosphates Chemicals Ltd. and further conflict between the two with the judgment of M/s. Kanpur Bottling Co. Pvt. Ltd. case. Another judgment of Special Bench D also came up for reference during hearing before Special Bench B; namely, Carew Co. Ltd. v. Collector of Central Excise, Allahabad 1983 E.L.T. 1186 (CEGAT) where the Tribunal had held that proceedings initiated under rule 10A would continue even after amendment of the said rules, provided the show cause notice was issued prior to repeal of rule 10A. 6.The Bench having thus found itself confronted with conflicting views on the subject, thought it expedient that the issues be settled by a Larger Bench. The President accordingly constituted the present Bench of 5 Members designated as Larger Bench, to go into the issues posed by the Reference Order. 7.Befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dated 17-7-1981 invoking rule 10 of the Rules in respect of clearances between May, 1979 to July, 1980 and again from 1-8-1980 to 21-1-1981. 13.It is interesting to note that a perusal of this appeal file reveals that this party had, at no stage, taken up objections as to the validity of the show cause notice, not even in the appeal to the Tribunal, but Bench B appears to have allowed objection to be raised and arguments addressed during hearing. So we have no inkling from record as to how the controversy might have been worded, and have to confine ourselves to Shri Chandersekharan's presentation in this regard. 14.He narrated brief history of the various changes that have been brought about in the rules from time to time stating that section 11 A came into force with effect from 17-11-1980, by virtue of Notification No. 176/80-C.E., dated 12-11-1980 and subsequent Notification No. 182/80-C.E., dated 15-11-1980 and that simultaneously by virtue of Notification No. 177/80-C.E., dated 12-11-1980, rule 10 was omitted from the Rules. His contention thus briefly was that after the omission of rule 10, the only provision which could be pressed into service by the Central Excise a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d; namely, Jayantilal Amratlal v. Union of India others (AIR 1971 S.C. 1193) was entirely distinguishable because the amending Act in that case itself contained a saving clause, and further what was being replaced by the amended provision was an ordinance which is of the same status as an Act of Parliament, and the amendment was also by means of an Ordinance, and as such provisions of section 6 of the General Clauses Act were applicable, even independent of specific saving. He accordingly pleaded that as against the aforesaid Bench decision, the other Bench decision in case : Pyrites Phosphates Chemicals Ltd. (supra) portrayed the correct position of law. 17. He further added that the rules were of determinative nature though qualified his statement by asserting that the right of the Department to effect recovery for short or non-levy could not be treated as a vested right inasmuch as it has to be adjudicated and determined by the competent officer, and thus the right could not be termed as complete, till the demand raised by means of show cause notice, had been adjudicated. 18. He also made a passing reference to principles of legislative will, contending that had there be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd rule 10(1) (a) of the Rules, and another portion of the notice covered period 17-11-1980 to 31-8-1981 making reference to rule 9(2) and section 11A, and that a third notice was given on 27-2-1982 covering the period 1-9-1981 to 30-11-1981 which was under rule 9(1), and that all these notices were confirmed under rule 9(1), and rule 174 and section 11A by Adjudication Order dated 4-6-1982. He too, besides asserting that rule 9(2) was not attracted inasmuch as goods were cleared with full knowledge of the Department, contended that since by the time amended notice was given; namely on 30-9-1981 which had the effect of replacing the first notice, as also included subsequent period, by which time rule 10 had ceased to exist without providing for any saving, the same could not be invoked and that in his case also the issue was, as summed up in 1(b) and 2(b) of the Reference Order, and his contentions would also be as put forward by Shri Chandersekharan. 23. Before proceeding to refer to the arguments advanced by Shri N.S. Sharma, Advocate for appellants in Appeal No. 1056/83-B, we would like to place on record that Miss Nisha Srivastava, Advocate appearing for appellants in Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sekharan saying that section 6 of the General Clauses Act protected only 'enactments' and 'regulations' and not 'rules' which have been separately defined by section 3(51) of the said Act. He anticipated arguments on the other side, to the effect that the judgments, such as in 'Rayala Corporation' case related to penal rules by contending that General Clauses Act did not recognise any distinction between procedural rules and penal rules and so the aforesaid judgment of the Supreme Court applies on all fours. He further urged that even provisions of rule 9(1) ingrained themselves in rule 10 or section 11A and consequently those provisions also got affected by omission of rule 10 inasmuch as time-limit qua rule 9, had to be read with rule 10 and with the repeal of rule 10, rule 9(1) could also not operate. He emphasised that the rules with which we were dealing did not enjoy status of an 'enactment' within the meaning of section 6 of General Clauses Act, and distinguished the case decided by the Supreme Court, reported as State of U.P. v. Babu Ram Upadhya (AIR 1961 S.C. 751) by urging that the said judgment only went to the extent of saying that rules made under a statute, had same f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule 2(o)] to elucidate as to what was his status as an Intervener, and as to his locus standi to challenge the jurisdiction of the Bench, which had invited him to appear as an Intervener. He also made it clear by referring to AIR 1954 S.C. 340 (Kiran Singh v. Chaman Paswan and Others) that consent of parties does not confer jurisdiction, urging that appellants' contention, and for matter of that on the part of respondents also, could not affect his right to raise the issue. 29. His arguments in short were that reference to the provisions of the Act, creating the Tribunal, made it very clear that the manner of constitution of Benches, has been provided by the Act, laying down that the normal Bench of the Tribunal has to be of two Members; exceptions having been created by means of sub-sections (3) and (4), and so far as references are concerned, that could only be in the situations contemplated by sub-section (5) of section 129C of the Customs Act, 1962. He asserted that a court could not be created in exercise of an inherent right, and cited AIR 1962 S.C. 993 (Arjun Singh v. Mohindra Kumar and Others) in support of his contention; his argument being that once the manner of const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his reference one of the appellants was located in the jurisdiction of the Allahabad High Court, whose decision in Ajanta Papers Product case was to their benefit; the constitution of the Larger Bench, which may come to different conclusion, was prejudicial to the interest of such appellants and against the provisions of Constitution of India brought about by 15th Amendment to Article 226 of the Constitution of India, stating that the law laid down by a High Court where the assessee's original authority was or where the assessee resides was to apply in that particular case, which principle was also laid down in AIR 1962 S.C. 1893 (M/s. East India Commercial Co. Ltd. v. Collector of Customs, Calcutta), and that in this view of the matter also, composition of Larger Bench, was wrong exercise of jurisdiction. He summed up his arguments in this regard by contending that Larger Bench had no authority to resolve the conflict between the Benches and further that the Act did not envisage orders in piece-meal as the procedure adopted is tantamount to depriving a party of his right of reference to the High Court, as conferred by section 35G of the Act, as well as that of an appeal to the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the rules read, as if they were being amended but in fact so far as rule 10A was concerned, it was a total substitution by consolidated new rule 10 with the result that neither rule 10 nor rule 10A can be deemed to have been retained in the form, these stood prior to 6-8-1977 and consequently not only rule 10A but even rule 10 had to be deemed to have been deleted. He further contended that rule 10 related to demand of duty short-levied or non-levied and it could not be treated to be a mere matter of procedure but created substantial rights and consequently proceedings thereunder must have sanction of law but having been substituted by an altogether new rule without any saving clause, proceedings initiated with reference thereto prior to 6-8-1977 could not continue. He placed reliance in support of this contention on a Full Bench decision of the Punjab High Court reported as AIR 1958 Pb. 230 (National Planners Ltd. v. Contributories etc.) and also contended that Supreme Court in Rayala Corporation case (supra) has laid down the correct law inasmuch as benefit of even section 6 of the General Clauses Act could not be available to rules. He pinpointed the distinction between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 177, dated 12-11-1980. 35.He then took up points 1(b) and 2(b) of the reference and propounded the view that limitation as on the date of issue of the show cause notice would apply, and that there were no accrued rights in favour of the Government, till the liability had been determined, and that the notice could not be issued with reference to an omitted or deleted rule and that matter of limitation being a procedural issue, the period available as on the date of initiation of proceedings would apply. 36.Shri Jain also pointed out the fallacy in the case decided by the Tribunal; namely, M/s. Anna Aluminium case, by applying Supreme Court authority in case : Jayantilal Amratlal v. Union of India (AIR 1971 S.C. 1193) inasmuch as a reading of the said judgment made it clear that apart from the fact that what was amended was an Ordinance and the amendment was also carried out by means of an Ordinance, and so provisions of General Clauses Act could in terms apply, but even otherwise the amending Act itself contained a saving clause, and therefore, the analogy of the ratio of the said case could not be available in situations like the present, where rules were being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t made by Shri Jain as to distinction between 'omission' and 'repeal' contending that none existed and relied on a subsequent judgment, in case: J.K.K. Angappan v. ITO, Central Circle VII, Madras reported as 1974 (94) ITR 397, where Madras High Court while following the Supreme Court judgment in Rayala Corporation case had held that there was no such distinction. Shri Lakshmi Kumaran asserted by way of first step in his arguments that section 6 of the General Clauses Act applied in respect of both the changes; namely, of 6-8-1977 as well as of 1980, and gave out that alternatively he would place reliance on the theory of 'vested rights'. 41.As regards his first contention, he pointed out that these rules had been framed in 1944 in the first instance and at that time by virtue of provisions of section 38 of the Act, as they then existed, rules were part of the Act and had thus to be treated as an enactment for the purpose of making available principles embodied in section 6 of the General Clauses Act. He placed reliance in support of this plea on the judgment of the First Larger Bench of the Tribunal in case : S. Kumar Co. v. Collector of Central Excise other reported as 1983 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) followed by Allahabad High Court judgment reported in AIR 1970 Allahabad 408 (The New India Assurance Co. Ltd. others v. Smt. Shanti Misra others) and also by Gauhati High Court in case reported as 1976 TLR 1605 (The Bishnauth Tea Co. Ltd. another v. Superintendent (.Hqrs.) of Customs Central Excise, Tezpur Divn. others) in support of the contention that the rules were not mere rules of procedures, but substantive provisions, and also to canvass the proposition that the Government was in position of a 'litigant' at the time of issuing of show cause notices. Besides, placing reliance on a number of judgments of the Supreme Court, he highlighted the ratio laid down in AIR 1971 S.C. 1193 (supra). He also cited some case law which we propose to discuss in proper context, in support of his contention that in spite of repeal or change in law, the proceedings will continue and urged that Allahabad High Court in Ajanta Paper Products case was wrong in holding that even proceedings already taken up could not continue. 45. He then dealt with question of jurisdiction of this Larger Bench as raised by Shri R.K. Jain as Intervener, controverting the contention that this Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly be covered, and reiterated that the principle that mere wrong citation of law does not vitiate the proceedings, if power is there, did not apply here, because to attract this, the two provisions should exist side by side and power should vest simultaneously. 48.He countered the arguments put forward by the learned Departmental Representative as to the vested rights by arguing that Section 3 of the Act did not create any right but referred to the liability of a manufacturer, which is attached to "manufacture" of goods, and that the provisions as to show cause notice did not create any vested right inasmuch as the liability had still to be adjudicated, and right, if any, was at an inchoate stage unless determined by an adjudication order. He referred in this regard to Blacks' Law Dictionary (page 1402). He also urged that Madhya Pradesh High Court in Gwalior Rayons case (supra) has wrongly distinguished the Supreme Court judgment in Rayala Corporation case (supra). 49.Referring to the contention that in view of the judgment of the first Larger Bench, the rules have to be deemed as if they were an Act, he contended that the said Bench was not concerned with a point like the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference, but have gone to the extent of defending the procedure adopted by the Tribunal in trying to resolve the contentious issues where different Benches of the Tribunal, of concurrent jurisdiction, have expressed different views on issues of recurring incidence. 52.However, being alive to the proposition that consent of parties does not bestow jurisdiction, we feel incumbent upon us to examine the issues raised by Shri Jain, in this regard; particularly when we find that he tenaciously pursued the objections, devoting major part of his arguments to this aspect. It had already been brought on record that the President of the Bar though also invited to appear as Intervener, did not choose to do so. 53. A resume of the contentions canvassed by Shri R.K. Jain reveals that he has a fundamental objection to the reference being made by a Special Bench in this manner on a point only, whereas appeal is retained for hearing by the said Bench, and the procedure adopted by the Tribunal in considering the reference by constitution of Larger Benches. 54.It goes without saying that in case it is found necessary that the issues thrown up by conflicting decisions of the Tribunal, need t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had sat in a particular matter, and it was on these facts that it was held that the composition of a Tribunal ought to be in conformity with the requirement of the statute, and a Tribunal sitting in contravention of those statutory requirements had no jurisdiction to decide the question arising under the statute, because the constitution of the Tribunal having been statutorily settled, the intention of the legislature was obvious, and proceedings conducted by the Chairman sitting alone were held liable to be quashed. 57.Similar situation prevailed in the case pertaining to Income-tax Appellate Tribunal because the Indian Income-tax Act, 1922 vide Section 5A(6) did not authorise a Bench consisting of four Members, whereas in the case referred to by Shri Jain, namely 1969 (71) I.T.R. p. 279 (Radha Vilas Karyalaya v. C.I.T., Lucknow), judgment had been signed by four Members, the fourth Member not being even a Member of the Bench, but having sat during the proceedings for training purposes. Similarly, in another case pertaining to Income-tax Appellate Tribunal cited by Shri Jain reported as 1978 (114) I.T.R. 858 (Commissioner of Wealth-tax, Andhra Pradesh v. S. Baliah), the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and far-reaching importance, we are of our firm view that the Tribunal would be failing in its duty, and going against the avowed intention of the legislature, if different Benches of the Tribunal are allowed to go on with conflicting views. It is thus in furtherance of the object with which the Tribunal was apparently constituted, and to lay down salutary conventions during the initial stages, that it has been thought expedient to resolve conflicting views by composition of Larger Benches and unless, there was an express bar or such a contingency had been covered by some other provision or procedures, the composition of the Larger Benches in execution of the statutory power of the Tribunal to regulate its own procedure; and to ensure smooth discharge of its statutory functions, cannot be open to question, and it falls well within the ambit of its incidental or ancillary powers. 62.It has been emphasised by no less an authority than Supreme Court in the case : Banwari Lal Agarwalla v. State of Bihar and Others (AIR 1961 S.C. 849) that in order to decide the legislative intent, the court has to "consider not only the actual words used but the scheme of the statute, the intended be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35G of the Act or that of the appellate power of the Supreme Court created by section 35L of the Act because this reference before us is out of matters pertaining to Special Bench, which matters cannot be taken up for references to the High Court under section 35G but, on the other hand, there is an express exclusion. Resolving questions for the Benches, on a point of importance, does not in any manner, interfere with the provisions relating to drawing up of statement to High Court as contemplated by section 35G of the Act nor does it in any manner clash with the provisions of appeal to the Supreme Court as laid down under section 35L of the Act, because that appeal has to be against a final order of the Tribunal whereas the Larger Bench will be only rendering opinion on a given point, and the appeal will still be disposed of by the concerned Bench and the point answered by the larger Bench gets merged in such a final order, thus keeping right of appeal to Supreme Court, aggrieved by the final order of the concerned Bench, intact to the party. 65.We also do not feel called upon to go into the question as to which High Court will have precedence qua the Tribunal because that issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enced by issuance of the show cause notice under rule 10A could continue, irrespective of the fact that said rule was subsequently removed from the relevant provisions. 69.We find support for this view from another authority; namely, a Division Bench of Bombay High Court reported as AIR 1954 Born. 135 (Maneklal Chunni Lal v. Commissioner of Income-tax) where also it was held that proceedings taken up by invoking provisions, as prevailing at a given time have to be concluded by applying the same old law, so much so that even reopening of assessment could be undertaken by reference to the provisions of the old law, under which the proceedings had been commenced. This authority lends abundant support to the view propounded by the Madhya Pradesh High Court, which we feel inclined to adopt, with all respects to the view of Allahabad High Court, for the reasons that we find more detailed reasoning in the latter authority supported by considerable case law whereas we may venture to say, without meaning any disrespect, the Allahabad High Court judgment expresses a cryptic view, by reference to the solitary case of Rayala Corporation (supra), without seeming to have examined the issue -ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llect duty is vested in the Government by virtue of the charging provisions as embodied in section 3 of the Act, and that rest is only by way of machinery provisions, and so the right to collect or retain collected amount of duty becomes vested in the Government, which cannot be taken away by subsequent amendments by curtailing the period for enforcement of such "vested rights". We propose to dispose of this argument first because we feel that this would facilitate discussion on the two remaining issues. 72. We have examined this contention of the learned Representative of the Respondents with great care because it raises a delicate point of law but we cannot persuade ourselves to agree with the arguments advanced by the learned SDR, Shri Lakshmi Kumaran. We say so because in the first instance, we firmly feel that the question of "vested right" arises only in favour of the "Subject", which would be assessee or taxpayer in this case, and can never be urged by the "State", to be existing in its favour. We feel fortified in this view, in the context of definition of this term; "vested rights" as outlined in Black's Law Dictionary (Fifth Edition: page 1402). 73. We consider it exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ......." 75. This view has been propounded by Saurashtra High Court also, in a case reported as AIR 1954 Saurashtra p. 66, arising out of legislation pertaining to Rent Control, to the effect that a right which requires determination by some authority-it being a claim for refund under the relevant law in that case, cannot be treated to be a vested or accrued rights. The plea, therefore, that such a right could not be effected by repeal of law under which it was claimed, was not entertained. 76. We, therefore, find the contention of the learned SDR as to the existence of vested rights in favour of the State to be absolutely untenable because at the stage the returns are filed or assessment made, or refunds are allowed by the concerned officers, question of "vesting" of any right in favour of the State, acting through the revenue authorities does not arise. For, even issuance of Show Cause Notice, does not automatically create an accrued right, because as rightly urged by Shri Chandersekharan, the learned Counsel for one of the appellants, that the right even at that stage is inchoate, and that it becomes complete only when the adjudication order is passed. 77. We have thus to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... categorical terms that procedural amendments to a law, in the absence of any thing to the contrary, operate retrospectively in the sense that they apply to all actions after the date they come into force, even though ....................... the claim on which the action may be based may be of an anterior date. This case has dealt with the actionability of claims contemplated by administration of Evacuee Property Act (1950) which was amended by Act 91 of 1956. It is noteworthy that the relevant provisions which were subject-matter of consideration in the said case and which were held to be of procedural nature, were analogous to that of provisions as to limitation. 82. Similarly, in another case : C. Beepathuma Others v. Velasari Shankaranarayana Kadambolithaya and Others (AIR 1965 S.C. 241), it was held that the law of limitation is a procedural law and the provisions existing on the date of suit apply to it. 83. Similar view was propounded in cases reported as AIR 1966 S.C. 1206 (Union of India v. Sukumar Pyne), AIR 1955 SC 84 (State of Punjab v. Mohar Singh Pratap Singh) and AIR 1976 Allahabad 447 (The Allahabad Bank Ltd. v. Rana Sheo Ambar Singh Others). It is further in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of the view in M/s. Anna Aluminium case, by the time judgment went to him, gave weightage to the same, and recorded a dissenting judgment, only on this point. It is further observed that the case of M/s. Anna Aluminium Co. also does not reflect unanimous view of the Bench, but is a majority order of 2 : 1. 86. Nevertheless, since the constitution of the Larger Bench is a result of the conflicting views, represented by the two above said decisions, we feel it incumbent to examine the same. We find that the judgment in M/s. Anna Aluminium Co. case ignores the Supreme Court authority of M/s. Rayala Corporation, and instead places reliance on another judgment of the Supreme Court reported as AIR 1971 S.C. 1193 (supra). It would, therefore, be advantageous to refer to this latter authority, which is the basis of the judgment in M/s. Anna Aluminium case, whereupon the dissenting order in Pyrites Phosphates case (supra) is in turn based. 87. With all respects, we observe that the learned Members representing the majority view in Anna Aluminium case, proceeded on a fallacy, which is manifest from a reading of this latter judgment of the Supreme Court inasmuch as the most conspicuous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les framed under Art. 309 of the Constitution. 90. We, therefore, are of firm opinion that the view represented by the majority judgment, in M/s. Anna Aluminium case, on the basis of Jayantilal Amratlal case, is not sustainable. Thus, we are constrained to say, with all respects, that case does not reflect the correct view. 91. We would also like to take note of another reason which seems to have weighed with that Bench, based on the judgment of Rajasthan High Court, propounding the theory of "breathing time". We have already held that there is no concept of "vested rights", which the State can successfully urge. Firstly, the judgment of Rajasthan High Court reported as AIR 1955 Rajasthan p. 97 (Jethmal another v. Ambsingh) which, in turn, is based on the observations of Hon'ble Ashutosh Mukerjee, Judge of Calcutta High Court in Majuri Bibi v. Akkel Mehmood reported as 19 Indian Cases 793 (Calcutta) dealt with the rights of private citizens, and in that context, it could certainly be urged by the parties thereto, that in the event of sudden change in the law of limitation without providing any breathing time to the litigant, the objection as to repeal of previous law, ought n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was nothing in the way of the rule-making authority to incorporate a saving clause. In the absence of that, we are of firm view that the same authority, while administering the rules, could not urge any plea of "breathing time". The plea of 'breathing time' at the instance or on behalf of the revenue, thus, cannot be even countenanced. 93. Another decision which influenced the view of the Bench in M/s. Anna Aluminium case, is the Cannanore Spinning Weaving Mills Ltd. v. C.C.E., Cochin Others (AIR 1970 S.C. 1950) = 1978 E.L.T. (J 375) (S.C.). A reference to this authority reveals that the proposition that rule-making authority (Central Government in this case) exercising power under section 37 of the Act, was not vested with power to make rules with retrospective effect, was in an absolutely different context inasmuch as there a definition, by means of notification issued under rule 8(1) of the Rules, had been made operative retrospectively, which was struck down. This authority, therefore, could not be the basis for the view that rules involving limitation, which under general law, in the absence of a saving clause, operate retrospectively, could not be so held, in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar rule had ceased to exist because here simultaneously fresh provision in this regard stood inserted in the Act, by the time notice was given. 98. On a resume of the preceding discussion, we are of our considered view that the period as permissible on the date of issuance of the show cause notice would only be available to the Department and not the period which was operative when the alleged short-levy or non-levy occurred. The reference is answered accordingly. 99. This discussion has also disposed of point No. 4 of the Reference Order; namely, whether the concept of 'breathing time' can be inducted in these proceedings or not, which question we have answered in the negative, in para 92 above, apart from the fact that the Bench decision in Kanpur Bottling Co. case (supra) clarified that the said case was decided on its own facts, and that it was not to be treated as a precedent. 100. In face of the view we have taken, the arguments advanced by Shri Sharma, Advocate for one of the appellants, that the provisions of rule 10 get ingrained in rule 9(1), do not retain any significance. We may also observe that the pleas as set out by Shri Sharma as well as Shri N. Mukherjee, A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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