TaxTMI 
TaxTMI 
2015 (2) TMI 136
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....ruction (BIFR), a statutory body established under the Sick Industrial Companies (Special Provisions) Act, 1985 (for short 'the Act'). The petitioner asserts that in respect of the dues of Sales Tax Department, the petitioner filed a writ petition bearing CWP No.7622 of 1991 before this Court, which was disposed of vide order dated 30.10.1991 in view of the judgment of Hon'ble Supreme Court since reported as (1990) 2 SCC 440 titled 'The Gram Panchayat & another Vs. Shree Vallabh Glass Works Limited & others' Thereafter, fresh demand of sales tax was raised against the petitioner, which became subject matter of challenge by way of CWP No.1685 of 1994. The said writ petition was allowed vide order dated 16.05.1994 holding that the recoveries were not permissible without permission of the BIFR in the light of the judgment in Shree Vallabh Glass Works Limited case (supra). Thereafter, the Assistant Collector, Central Excise, issued a show cause notice on 28.07.1981 (Annexure P-6) to the petitioner to show cause as to why penalty should not be imposed for contravention of Rule 9(1) of the Central Excise Rules, 1944 and why the entire duty on the cartons supplied by customers should n....
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....dings against the petitioner-company are to be suspended. In support of such argument, learned counsel for the petitioner refers to a judgment of Hon'ble Supreme Court in Raheja Universal Limited Vs. NRC Limited & others AIR 2012 SC 1440 considering its earlier judgment in Deputy Commercial Tax Officer & others Vs. Corromandal Pharmaceuticals & others AIR 1997 SC 2027 dealing with recovery of dues of the State. It is argued that in terms of the judgment in Raheja Universal Limited case (supra), the recovery proceedings cannot continue even in respect of the dues payable to the State Government either under the State Sales Tax laws or under the Central Excise. We have heard learned counsel for the parties and with their assistance gone through the provisions of the Act as well as the provisions of Section 11-E of the Excise Act inserted vide Finance Act No.8 of 2011 w.e.f. 08.04.2011. The relevant provisions of the Act and the Excise Act are as under: The Sick Industrial Companies (Special Provisions) Act, 1985 "22. Suspension of legal proceedings, contracts, etc. - (1) Where in respect of an industria....
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.... Mark-A. However, there is no discussion in the order available on the website regarding dues payable to the central excise department, though there is discussion in respect of the sales tax dues payable to the Government of Maharashtra. In respect of W.P.No.294 of 1993, from the website of Bombay High Court, it transpires that the said writ petition stands disposed of on 23.01.2014, but such order is not available. Section 11E of the Excise Act was inserted vide Finance Act No.8 of 2011 w.e.f. 08.04.2011. The said provision start with non-obstante clause that notwithstanding anything to the contrary contained in any Central Act or State Act, any amount of duty, penalty, interest, or any other sum payable by an assessee shall be the first charge on the property of the assessee except of the workmen under Section 529A of the Companies Act, 1956 and the dues of the secured creditors under the Recovery of Debts Due to Banks and the Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and the Enforcement of Security Interest Act, 2002. The Act is a central statute, whereas the Excise Act is another central statute. Section 11E has been in....
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....or to the introduction of the restriction. It is certainly not a case of settled or vested rights, which are incapable of being interfered with. It is a settled canon of law that the rights are subject to restrictions and the restrictions, if reasonable, are subject to judicial review of a very limited scope. xxx xxx 64. Earlier, the nature of law, as substantive or procedural, was taken as one of the determinative factors for judging the retrospective operation of a statute. However, with the development of law, this distinction has become finer and of less significance. Justice G.P. Singh, in his Principles of Statutory Interpretation (12th Edition, 2010) has stated that the classification of a statute, as either a substantive or procedural law, does not necessarily determine whether it may have retrospective operation. For example, a statute of limitation is generally regarded as procedural, but its application to a past cause of action has the effect of reviving or extinguishing a right to sue. Such an operation cannot be said to be procedural. It has also been noted that the rule of retrospective construction i....
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....panies Act, 1956. This and other provisos do not create first charge in favour of the worker of a company in liquidation for the first time but merely recognize the existing priority of their claim under the Companies Act. It is interesting to note that the provisos to subsection (9) of Section 13 do not deal with the companies which fall in the category of borrower but which are not in liquidation or are not being wound up. xxx xxx 115. The non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act give overriding effect to the provisions of those Acts only if there is anything inconsistent contained in any other law or instrument having effect by virtue of any other law. In other words, if there is no provision in the other enactments which are inconsistent with the DRT Act or Securitisation Act, the provisions contained in those Acts cannot override other legislations. Section 38C of the Bombay Act and Section 26B of the Kerala Act also contain non obstante clauses and give statutory recognition to the priority of State's charge over other debt....