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Premier Synthetic Processors Ltd. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1087 of 1980
Judge
Reported in1990(27)LC65(Bombay)
AppellantPremier Synthetic Processors Ltd.
RespondentUnion of India (Uoi) and ors.
Excerpt:
remand - non-application of mind--court remands matter to goi to determine effect of section 5(3) of additional duties act, 1980 levying duties on textiles. - 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..........on 22nd june, 1974 the goods of the petitioners were seized under rule 52a and 173q of the central excise rules. on 11th december, 1974 they were served with a notice to show cause. it alleged that the petitioners had contravened the said two rules and they were asked to show cause why the goods should not be confiscated, duty thereon should not be demanded and recovered, and penalty should not be imposed. the petitioners showed cause on 11th january, 1975. on 8th may, 1975 the collector of central excise imposed upon the petitioners a penalty of rs. 2,000/- under rule 52 a and of rs. 30,000/- under rule 173q. he also confiscated a vehicle belonging to the petitioners but permitted them to clear it on payment of rs. 5,000/- as fine in lieu of confiscation. the petitioners preferred an.....
Judgment:

S.P. Bharucha, J.

1. The Petitioners Process man-made Fabrics. On 22nd June, 1974 the goods of the petitioners were seized under Rule 52A and 173Q of the Central Excise Rules. On 11th December, 1974 they were served with a notice to show cause. It alleged that the petitioners had contravened the said two rules and they were asked to show cause why the goods should not be confiscated, duty thereon should not be demanded and recovered, and penalty should not be imposed. The petitioners showed cause on 11th January, 1975. On 8th May, 1975 the Collector of Central Excise imposed upon the petitioners a penalty of Rs. 2,000/- under Rule 52 A and of Rs. 30,000/- under Rule 173Q. He also confiscated a vehicle belonging to the petitioners but permitted them to clear it on payment of Rs. 5,000/- as fine in lieu of confiscation. The petitioners preferred an appeal. On 2nd September, 1978 the Central Board of Excise and Customs confirmed the earlier order but reduced the penalty of Rs. 30,000/- to Rs. 15,000/- under Rule 173Q and the fine of Rs. 5,000/- to Rs. 1,000/- in lieu of confiscation of the vehicle. The petitioners then preferred a revision petition to the Government of India, which was rejected on 8th November, 1979.

2. On 12th February, 1980 the Central Excises and Salt and Additional Duties of Excise (Amendment) Act, 1980, was enacted to amend the Central Excises and Salt Act, 1944, and the Additional Duties of Excise (Goods of Special Importance) Act, 1957. In relation to man-made fabrics certain amendments were effected. Sub-section (3) of Section 5 of the amending Act stated:

For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force.

3. On 12th May, 1980 the petitioners wrote to the Government of India drawing attention to the said sub-section and urged that in view thereof no punishment could be imposed upon the petitioners. They submitted that the order passed in the revision petition should be reviewed in the light of the said sub-section. On 19th August, 1980 the Government of India wrote to the petitioners stating that it 'had carefully considered your case while passing the revisional orders communicated to you, which may please be treated as final.

(Emphasis supplied).

4. The communication of the Government of India dated 19th August 1980 does not disclose that it had applied its mind to the effect of the said sub-section upon the case of the petitioners. It does not disclose whether or not thePetitioners' contention that by reason of the said sub-section no punishment could be imposed upon them was held to be justified. In fact, it suggests that the said sub-section was not looked into at all.

5. In these circumstances, the communication dated 19th August, 1980 is set aside and the Government of India is directed to reconsider the petitioners' review application dated 12th May 1980 and to apply its mind to and determine the effect of the said sub-section upon the petitioners.

6. Rule accordingly. No order as to costs.


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