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Hindustan Milkfood Manufacturers Limited Vs. Union of India (Uoi) Through the Joint Secretary Ministry of Finance Department of Revenue and Insurance and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 600 of 1976
Judge
Reported in1981LC17D(Delhi)
AppellantHindustan Milkfood Manufacturers Limited
RespondentUnion of India (Uoi) Through the Joint Secretary Ministry of Finance Department of Revenue and Insur
Disposition Petition allowed
Cases ReferredAtic Industries Ltd. v. H.H. Dave. Asstt. Collector of Central Excise and Ors.
Excerpt:
petitioner has right to challenge illegal levy under article 226 of the constitution. - - 5. in the present writ petition the petitioner has assailed the aforesaid decisions of the central government as well as of the assistant collector. 6. the appellate authority as well as the revisional authority have, however, not gone into the merits of the case because the appeals were barred by time......levy and/or non-levy. in the present writ petition the petitioner is inter alias challenging the aforesaid orders and notice.4. the appeals were filed against the orders dated 14th june 1971, 14/15th june 1971 and notice dated 7th july, 1971. in respect of the first two appeals by reason of typographical error instead of 'deputy collector,' the words 'deputy director' were typed on the registered cover. the said registered cover was not accepted and was returned to the petitioner on 19th october, 1971. the said appeals were put in a new cover and dispatched on the same date along with an application for condensation of delay. the three appeals were heard together by the appellate collector. he regarded all the appeals barred by time and the same were dismissed. against the said orders,.....
Judgment:

B.N. Kirpal, J.

1. The petitioner is engaged in the manufacture and sale of milkfood and dairy products. The said products are packed in bottles at several packing stations in India. The goods are marked under the brand name of 'Horlicks'.

2. According to the petitioner, on the sales which it makes, it gives discount to its dealers in two ways. Either it gives a dealer 13 bottles of 'Horlicks' and charges for 12 bottles or it gives cash discount. The rate of cash discount is varied between 1.75 to 1.5%.

3. By the Finance Act of 1969, 10% ad valorem duty is chargeable on earnings. The petitioner was required to submit price list to the Excise Authorities. The controversy in this writ petition is with regard to the non-approval of the price list inter alias with regard to the aforesaid two items and the other discounts claimed by the petitioner. The price lists were not approved by various orders passed by the Assistant Collector, Central Excise. The petitioner received order dated 28th April 1971 inter alias to the effect that the unit of sale shown as 13 bottles was not acceptable for the purposes of assessment under Section 4 of the Central Excises and Salt Act, 1944. It was further stated that discount of 1.5% only would be allowed and not 1.75. - With regard to the various price lists for the period 1st March, 1970 to 31st December, 1970 the petitioner received a notice dated 14th June 1971 reiterating what had been stated in the earlier order dated 28th April, 1971. Similarly, with regard to the period from 1st January 1971 to 21st November 1971, an order dated 14/15th June 1971 was received. Thereafter, the petitioner received a show-cause notice dated July 7, 1971. In the said show-cause notice the respondent claimed a sum of Rs. 85,150.84p stated to be the amount of short levy and/or non-levy. In the present writ petition the petitioner is inter alias challenging the aforesaid orders and notice.

4. The appeals were filed against the orders dated 14th June 1971, 14/15th June 1971 and notice dated 7th July, 1971. In respect of the first two appeals by reason of typographical error instead of 'Deputy Collector,' the words 'Deputy Director' were typed on the registered cover. The said registered cover was not accepted and was returned to the petitioner on 19th October, 1971. The said appeals were put in a new cover and dispatched on the same date along with an application for condensation of delay. The three appeals were heard together by the Appellate Collector. He regarded all the appeals barred by time and the same were dismissed. Against the said orders, revision petitions were filed before the Central Government. The Central Government disposed of the said revision petitions by orders dated 29th April 1975 and 13th June 1975 only on the point of limitation. It was held that the appeals were filed before the Appellate Collector beyond period of limitation and that there was no power of the Appellate Collector to condone the delay.

5. In the present writ petition the petitioner has assailed the aforesaid decisions of the Central Government as well as of the Assistant Collector. With regard to the revision petitions decided by the Central Government, it is evident that appeals were filed beyond the period of limitation. It also appears that there is no power of condensation of delay with the authorities. As such there is no infirmity in the orders passed by the Central Government in the revision petition.

6. The appellate authority as well as the revisional authority have, however, not gone into the merits of the case because the appeals were barred by time. The delay in filing the appeals occurred as is clear from the facts on the record, due to a typographical error. Instead of addressing the envelope to the Deputy Collector, containing the appeals, the envelope was addressed to the Deputy Director. The envelope came back with the result that the appeals had to be re-filed at a later date. It is for this reason that the delay in filing the appeals occurred. Ordinarily, when an alternative remedy is available this Court would not interfere under Article 226 of the Constitution. In the present case, however, I find that 'for no deliberate fault on the part of the petitioners! they have not been able to avail of the alternative remedy, even though they; tried to do so If the levy of the excise; duty is not warranted by law then in would not be in the interest of justice to, deprive the petitioners of their right to challenge the illegal levy by way of a writ petition under Article 226 of the Constitution merely because, due to) typographical error', it was not able to file its appeals within time. In any case] the existence of the alternative remedy is no bar to this Court exercising jurisdiction under Article 226 of the Constitution specially if it will result in great injustice if the impugned order is allowed to remain.

7. The question which arises, on the merits of the case, concerns the interpretation and applicability of Section 4 of (he Central Excises and Salt Act prior to its amendment in 1973. At the time when the Assistant Collector decided the matter two decisions with regard to the interpretation of the said Section were not available. These decisions are CEN-CUS 1973 February page 60 A.K. Roy and Anr. v. Voltas Ltd. : 1973ECR60(SC) and CEN-CUS 1975/49C Atic Industries Ltd. v. H.H. Dave. Asstt. Collector of Central Excise and Ors. : 1978(2)ELT444(SC) . It is necessary, thereforee, that the price list of the petitioner should be consider-red by the Excise Authorities in the light of the aforesaid decisions. By applying the said decisions it may be that the authorities may come to the same decision or may wholly or partially accept the contention of the petitioner. Further more, there is a recent decision of this Court between the parties in C.W. No. 980 of 1979, 1169 of 1976 and 876 of 1979 decided on 31st March, 1980. By this judgment the said writ petitions filed by the petitioner were allowed and the cases remanded to the Central Government, who were required to decide the points afresh in the light of the discussion contained in the aforesaid judgment. The principles enunciated in these decisions have also to be looked into in the present case.

8. In view of the fact that the aforesaid three decisions were not available to the Assistant Collector at the time when the impugned orders were passed and notice were issued, it is only proper that the aforesaid orders and notice dated 28th April 1971, 14th June 1971 and 14/15th June 1971 and 7th July, 1971 along with order dated 8th December 1971, passed by the Assistant Collector (Calcutta) after having received reply to the show-cause notice dated 7th July 1971, are quashed and the case remanded for fresh adjudication to be made in the light of the aforesaid decisions.

9. I accordingly allow the writ petition and quash the aforesaid orders and notice and direct the Assistant Collector, Calcutta to adjudicate afresh in the light of the aforesaid decisions. The adjudication should be done as expeditiously as possible. The fresh adjudication should be completed within a period of four months from the receipt of the certified copy of this judgment. Parties to bear their own costs.


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