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Srinivasa Cement Works Vs. Assistant Collector of Central Excise, Nizamabad Division, Collector, - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 2543 of 1982
Judge
Reported in1983LC2100(AP)
AppellantSrinivasa Cement Works
RespondentAssistant Collector of Central Excise, Nizamabad Division, Collector, ;central Excise and the Addl.
Excerpt:
ce and salt act 1944, section 35f--duty deposit pending appeal r.c.c. spun pipes--stay application - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3)..........should not be demanded. the petitioner filed its objections on 18.9.1980. the assistant collector, central excise, passed an order of adjudication on 29.10.1980 accepting its objections and imposing a nominal penalty of rs. 100/-. however, the collector, central excise, initiated review proceedings under section 35(a) of the central excise act by issuing a show cause notice dated 25.4.1981. the petitioner submitted its objections which did not find favour with the collector, central excise and he passed an order dated 23.11.1981 imposing a penalty of rs. 10,000/- and determining the duty payable at rs. 46,300-91 ps. aggrieved by that order, the petitioner has filed a revision petition before the additional secretary to the government, 3rd respondent herein, on 7.1.82. although the.....
Judgment:

Madhava Reddy, Acting C.J.

1. This writ petition is directed against the order of the 1st respondent demanding payment of Rs. 56,300-91 ps. in DOR No. 67/80 CE.(PF) dated 4/6.3.1982. The petitioner is a partnership firm which started manufacturing R.C.C. spun pipes of different dimensions from 1.3.1979. It is the case of the petitioner that it is not aware that R.C C. spun pipes are liable for excise control even in the case of a small scale industry with a turnover of less than Rs. 30,00,000/- and covered by notification 89-79 dated 1.3.1979. Having subsequently come to know of that fact, it gave a declaration in the prescribed form which was found to be defective and the same was returned. After it was re-submitted and the matter was pending consideration, and before the declaration was acccepted and the licence granted, a notice was issued to the petitioner on 11.8.1980 calling upon it to show cause why penalty should not be imposed for the contravention of the Rules and why duty should not be demanded. The petitioner filed its objections on 18.9.1980. The Assistant Collector, Central Excise, passed an order of adjudication on 29.10.1980 accepting its objections and imposing a nominal penalty of Rs. 100/-. However, the Collector, Central Excise, initiated review proceedings under Section 35(A) of the Central Excise Act by issuing a show cause notice dated 25.4.1981. The petitioner submitted its objections which did not find favour with the Collector, Central Excise and he passed an order dated 23.11.1981 imposing a penalty of Rs. 10,000/- and determining the duty payable at Rs. 46,300-91 ps. Aggrieved by that order, the petitioner has filed a revision petition before the Additional Secretary to the Government, 3rd respondent herein, on 7.1.82. Although the petitioner applied for stay of the. collection of the duty and penalty imposed by the Collector, Central Excise, pending the disposal of the revision petition, no orders have been passed therein. Hence this writ petition.

2. Substantial questions of law and fact have been raised by the petitioner in the revision petition. The amount demanded is heavy. If the contention of the petitioner is accepted that it bona fide believed that no declaration need be filed and if duty is not leviable on a turnover of less than Rs. 30,00,000/- worth of goods produced by the petitioner as claimed by it, then it is eminently a fit case where no part of the amount of duty and tax should be directed to be paid even during the pendency of the revision. The revisional authority ought to have exercised its jurisdiction one way or the other. In the circumstances of the case, we think it just and necessary to direct stay of all further proceedings for recovery of the duty and penalty pending the disposal of the revision petition filed by the writ petitioner before the Government, on condition that the petitioner furnishes Bank Guarantee in favour of the 2nd respondent in a sum of Rs. 46,300/- within four weeks from to-day.

3. This writ petition is disposed of accordingly and a direction as indicated above will issue. No costs. Advocate's fee Rs. 150/-.


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