TaxTMI 
TaxTMI 
1979 (8) TMI 78
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....s. on 52,124 Kg. of I.A.C. tobacco bits and midribs should not be demanded from the petitioner under Rule 40 of the Central Excise Rules, 1944. The case of the respondent, as set out in the show cause notice is that the petitioner Company, which has its godown at Koppuravur, obtained the secondary T.P. 1s from the Inspector of Central Excise, Kondapalli fixed sector of Kanchikacherla MOR for the removal of 52,124 Kgs. of I.A.C. tobacco bits and midribs from the premises of Shri P. Venkaiah, L. 2 licence holder of Kondapalli fixed sector, that the Assistant Collector, Central Excise, Vijayawada, visited the premises of P. Venkaiah for the purpose of investigation and found that P. Venkaiah was a fictitious name and he did not really exist an....
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....se Rules reads as follows : "40. Wholesale purchaser may not receive unmanufactured tobacco or other unmanufactured products except under permit showing payment of duty. - Except as provided in the proviso sub-rule (1) of Rule 32 and in Rule 171 no wholesale purchase of unmanufactured tobacco for the purpose of trade or manufacture and no wholesale purchaser of other unmanufactured products from a curer shall receive to any part of his premises or into his custody or possession, any unmanufactured products imported from a foreign country, otherwise than under a valid permit granted by an officer showing that the proper duty has been paid or under any other valid transport document recognised by the Central Government in lieu thereo....
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....li. The statement found in Para 4 of the counter affidavit "that on enquiry it was also found that no person by name P. Venkaiah really existed, that no tobacco was ever brought that the tobacco received from the petitioner firm should be construed in the circumstances as non-duty paid" would also clearly go to show that the petitioner's allegation was that the T.P. 1s were obtained in the name of P. Venkaiah, who is wholly a different person from the petitioner. In these circumstances and in the absence of a clear statement either in the show cause notice or in the counter affidavit that T.P. 1s have not been issued by the Excise authorities, I hold that the issuance of this show cause notice is without jurisdiction. 5. Shri Mangach....
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....ice can certainly be described as a legal proceeding instituted for anything done under this Act. The thing alleged to have been done by the petitioner is failure to pay the duty and now for that failure the show cause notice, which is a legal proceeding is issued. Section 40(2) says that such a legal proceeding shall not be instituted after the expiration of six months from the accrual of cause of action. There is nothing in Section 40(2) which says that bar cannot be applied to either judicial or quasi-judicial proceedings. In fact the law of limitation is more appropriately applied to such proceedings. In a Bench decision of this Court in W.P. No. 2516/74, arising under Section 40 Clause (2) of the Central Excise Act, similar point has b....