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Goberdhan Polisy and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 557(W) and 558(W) of 1970
Judge
Reported in1978(2)ELT228(Cal)
ActsCentral Excise Rules, 1944 - Rules 9(1), 9(2), 10 and 10A
AppellantGoberdhan Polisy and ors.
RespondentUnion of India (Uoi) and ors.
DispositionApplication dismissed
Cases ReferredL. Hazari Mal Muthala v. Income Tax Officer Spl. Circle Ambala Cantt. and Anr.
Excerpt:
- .....the manufacturer who had removed the dutiable goods to have paid the duty and not having paid the duty, rule 9(2) is applicable to the facts and circumstances of the case and in the manner which has been invoked. 3. so far as the contention that no opportunity had been given, it is undisputed that the figure of the total aluminium which had been manufactured, had been arrived at frorn the books of the petitioner. therefore, there is no prejudice on this count either.4. in the aforesaid view of the matter, it cannot also be accepted that the inspector was not competent to make the demand.5. in the premises, this application fails and is accordingly dismissed. the rule nisi is discharged. interim order is vacated. there will be no ,order as to costs.there will be an order of stay of.....
Judgment:

S. Mukheji, J.

1. The petitioner, according to the Central Excise authorities, had manufactured 27.146 MT of aluminium ingots out of the aluminium dress received from the Aluminium Company of India, Belur and Aluminium Corporation of India, Asansol, and had removed the same from the factory without payment of the Central Excise duty leviable daring the period from 17th July, 1963 to 31st December, 1964. It is undisputed that under item 27 of the schedule to the relevant Tariff of Central Excise Act and Rules, aluminium is dutiable. A demand for Rs. 9772.56 P. was raised under Rule 10A of the Central Excise Rules, 1944 on the 16th February, 1966 for removal of the aforesaid ingots without payment of the Central Excise duty leviable thereon. There was an objection filed and the Assistant Collector of Central Excise came to the conclusion that the demand should be confirmed and the demand should be deemed to have been issued under Rule 9(2) of the Central Excise Rules, 1944. There was an appeal to the Collector from the aforesaid decision. The Collector confirmed the decision of the Assistant Collector. Thereafter an application to the Central Government for revision was filed and Government decided to interfere with the orders passed. The petitioner has moved this application under article 226 of the Constitution challenging the aforesaid orders and the demand for the aforesaid sum of money.

2. The first point was that the demand was without jurisdiction. It is urged that under Rule 10A demand had been made. Rule 10A was not applicable. That is so. It has been so held by the respondent authorities. It was also urged that Rule 10 was not applicable. That is also, so. It is not the case of the respondent that Rule 10 was at all applicable. It was then contended that the notice of demand was not under Rule 9(2) and, therefore, the sustenance of the order by virtue of Rule 9(2) of the Central Excise Rules was unjustified. It has been held that where an authority has jurisdiction merely referring to a wrong Section would not deprive the authorities of that jurisdiction. Reference may be made to the decision of the Supreme Court in L. Hazari Mal Muthala v. Income Tax Officer Spl. Circle Ambala Cantt. and Anr. (41 I.T.R. 12 at page 16). It is further contended that before Rule 9(2) was made applicable, however there should have been an adjudication under Rule 9(1) and there being no adjudication, the order was bad. I am also unable to accept this position. It is undisputed that aluminium was dutiable and that duty had not been paid. Therefore it was the obligation of the manufacturer who had removed the dutiable goods to have paid the duty and not having paid the duty, Rule 9(2) is applicable to the facts and circumstances of the case and in the manner which has been invoked.

3. So far as the contention that no opportunity had been given, it is undisputed that the figure of the total aluminium which had been manufactured, had been arrived at frorn the books of the petitioner. Therefore, there is no prejudice on this count either.

4. In the aforesaid view of the matter, it cannot also be accepted that the Inspector was not competent to make the demand.

5. In the premises, this application fails and is accordingly dismissed. The rule nisi is discharged. Interim order is vacated. There will be no ,order as to costs.

There will be an order of stay of operation of this order for a period of six weeks from this date.


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