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Sharma Trolly Manufacturers Vs. Government of India and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 258 of 1982
Judge
Reported in1986(7)ECC146; 1986(25)ELT506(All)
ActsCentral Excise Act - Sections 36; Central Excise Rules - Rule 8(1)
AppellantSharma Trolly Manufacturers
RespondentGovernment of India and ors.
Appellant AdvocateV.P. Misra, Adv.
Respondent AdvocateK.C. Sinha, Additional Standing Counsel
Excerpt:
central excise - revision--stay--petitioner's claim rejected by department--filing of revision by petitioner--realisation of duty and penalty during pendency of revision--government directed to dispose of revision--department restrained from realising duty and penalty till disposal of revision--central excises and salt act (1 of 1944), section 36--central excise rules, 1944, rule 8(1). - .....of the central excises and salt act (hereinafter referred to as the act) and the liability to pay excise duty thereunder. the collector, central excise, however, did not accept the contention raised by the petitioner and by order dated 29th february, 1978 levied rs. 41,094 as duty and rs. 50,000 as penalty. the petitioner went up in appeal against the aforesaid order before the central board of excise and customs, new delhi, which ultimately by order dated 31st december, 1979 rejected the same. the petitioner thereafter, preferred a revision under section 36 of the act before the government of india. the said revision was filed on may 27, 1980 a copy of which has been annexed as annexure 'a' to the writ petition, and is still pending with the government of india, ministry of finance,.....
Judgment:

Anshuman Singh, J.

1. The petitioner is the proprietor of M/s. Sharma Trolly Manufacturers, Kanpur which is engaged in the business of assembling trollies for tractors. It received a show cause notice dated 12th January, 1973 from the Collector, Central Excise, Kanpur informing it that nine workers have been engaged in the workshop as discovered by the Inspector who has recorded the statements of the workmen concerned. It submitted its written explanation dated 22nd April, 1973 asserting therein that only five persons were engaged and not nine. It has been alleged that under Rule 8(1) of the Central Excise and Salt Rules the Central Government is empowered to exempt an unit from the operation of the Central Excises and Salt Act (hereinafter referred to as the Act) and the liability to pay excise duty thereunder. The Collector, Central Excise, however, did not accept the contention raised by the petitioner and by order dated 29th February, 1978 levied Rs. 41,094 as duty and Rs. 50,000 as penalty. The petitioner went up in appeal against the aforesaid order before the Central Board of Excise and Customs, New Delhi, which ultimately by order dated 31st December, 1979 rejected the same. The petitioner thereafter, preferred a revision under Section 36 of the Act before the Government of India. The said revision was filed on May 27, 1980 a copy of which has been annexed as annexure 'A' to the writ petition, and is still pending with the Government of India, Ministry of Finance, Department of Revenue, New Delhi.

2. Mr. V.P. Misra, learned counsel for the petitioner has contended that in spite of the fact that the revision has not been disposed of by the Government of India, the excise duty is being realised and as such the issuance of order for realising Rs. 41,094 from the petitioner was wholly illegal and arbitrary. In paragraph No. 16 of the counter affidavit filed by Sri S.K.S. Somavanshi, Assistant Collector (Preventive), Central Excise, Kanpur, it has been stated that the revision of the petitioner is still pending with the Government of India and it shall be disposed of in normal course. Since there are a large number of such petitions pending before the Government of India from the various parties, the revision preferred by the petitioner shall be disposed of on its turn, 'Mr. K.C. Sinha, learned Additional Standing Counsel appearing for the Union of India, stated that the revision filed by the petitioner has not been finally disposed of till today. Since there is a statutory duty cast on the Government of India to dispose of the revision under Section 36 of the Act which it is not performing, it would be desirable that a mandamus be issued to the respondent to discharge its duty.

3. In the result the writ petition succeeds in part and is allowed to that extent. Let a mandamus be issued commanding respondent No. 1 Government of India', Ministry of Finance, Department of Revenue, New Delhi to dispose of the revision dated May 27, 1980 filed by the petitioner within a period of three months from the date of the presentation of a certified copy of this order. The respondents are also restrained from realising the excise duty and the penalty imposed upon the petitioner during the pendency of the revision. However, the parties shall bear their own costs.


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