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Morarji Goculdas Spinning and Weaving Co. Ltd. and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 568 of 1980
Judge
Reported in1990(27)LC106(Bombay)
AppellantMorarji Goculdas Spinning and Weaving Co. Ltd. and anr.
RespondentUnion of India (Uoi) and ors.
DispositionPetition dismissed
Excerpt:
alternative remedy should be availed of writ on issue of show cause notice premature. court directs department to decide matter in 3 months. cesa: section 11a. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that..........of the provisions of rules 173f, 9(1) read with rule 173g(1) and rule 49a of the central excise rules, 1944. the petitioners were called upon to explain why penalty should not be imposed under rule 9(2) read with rule 173q of the central excise rules.3. shri dalai, learned counsel appearing on behalf of the respondents, raised a preliminary objection to the maintainability of the petition by submitting that this court should not exercise jurisdiction at this juncture and, in my judgment, the preliminary objection is appropriate and deserves acceptance. it is not necessary to consider various contentions urged by the petitioners at this stage and the proper thing for the petitioners to do is to give reply to the show cause notice issued by the superintendent, central excise and.....
Judgment:

M.L. Pendse, J.

1. By this petition filed under Article 226 of the Constitution of India, the petitioners are challenging the legality of show cause notice dated February 22, 1980 issued by the Superintendent, Central Excise, Range XV, Bombay Division.

2. The show cause notice, inter alia, recites that it appears that the quantity of 3,16,689 Kgs. yarn manufactured by the petitioners, but not gone for weaving of fabrics has escaped duty. It further recites that the petitioners had cleared the said quantity of yarn without payment of proper duty in contravention of the provisions of Rules 173F, 9(1) read with Rule 173G(1) and Rule 49A of the Central Excise Rules, 1944. The petitioners were called upon to explain why penalty should not be imposed under Rule 9(2) read with Rule 173Q of the Central Excise Rules.

3. Shri Dalai, learned Counsel appearing on behalf of the respondents, raised a preliminary objection to the maintainability of the petition by submitting that this Court should not exercise jurisdiction at this juncture and, in my judgment, the preliminary objection is appropriate and deserves acceptance. It is not necessary to consider various contentions urged by the petitioners at this stage and the proper thing for the petitioners to do is to give reply to the show cause notice issued by the Superintendent, Central Excise and the Superintendent, Central Excise thereafter should proceed to pass the order. Shri Dalai states that the show cause notice will be decided within a period of three months from today, after giving proper opportunity to the petitioners to show cause. The interim order passed by this Court in this petition would continue to operate for a period of four weeks from the date of communication of the order of the Superintendent. Shri Dalai states that the notification dated April 1, 1961 on which the petitioners rely was amended subsequently on February 3, 1982 and the Superintendent should be permitted to apply the provisions of the amended notification in respect of the period subsequent to the date of issuance of the notification. The Superintendent of Central Excise is certainly entitled to do so.

4. Accordingly, the petition fails and the rule is discharged but the interim orders shall continue to operate for a period of four weeks from the date of communication of the order by the Superintendent, Central Excise. In the circumstances of the case, there will be no order as to costs.


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