TaxTMI 
TaxTMI 
TaxTMI 
1991 (10) TMI 55
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....he petitioner Company had a rub with the Department about the duty payable under the Central Excises and Salt Act, 1944 (hereinafter referred to as "the Act"), The dispute was not in relation to the material imported nor in the final products taken out of the factories. It centred round the vistas of "waste" as the term is understood in Excise parlance in the relevant context. 3. The matter had received attention at one stage by someone fairly high in the hierarchy. The decision was in favour of the petitioner Company. The passage of time and possession of further materials apparently prompted the Department to have a second-thought on the issue. They took the view that a larger duty was due from the petitioner Company. The feel is not enough. A final verdict is necessary. Many steps have taken and many hurdles crossed, before a final verdict is reached. The very first one is for the Departmental authority of the lowest rung; he has to come to a definite, even though tentative, conclusion. Here again, the procedural safeguards - the hallmark of a fair regime of the Rule of Law - require effective and full opportunity being afforded to a person before even a paise is taken from his....
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....t a threshold objection. A right royal road is available to the petitioner to take his wheelers, with halting points at the adjudicating authority, appellate/revisional authorities. That is a right conferred by the statute itself. If he feels aggrieved even by the ultimate order passed by the authorities or the Tribunal, a gate-way is open to the High Court, and a narrower one even to the Supreme Court. In such circumstances, a party would ordinarily be directed to pursue that well defined path in his litigational journey. Bye-lanes or blind alleys should not ordinarily be resorted to by a party. 8. Counsel for the petitioners sought to meet this objection, by a contention, prima facie, attractive in its apparel. The very jurisdiction of the authority which has issued the notice is non-existent. In such circumstances, the straight entry into the portals of the constitutional court is permissible. So viewed, the petitioners should be treated as one with a valid ticket - so went the submission. 9. It is true that if jurisdiction be totally denuded, the constitutional courts feel inclined to relieve a citizen of burdensome litigational proceeding before the hierarchical officialdom.....
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....our. In that event, the jurisdiction originally available has been subsequently lost, - contends the petitioner. 13. We are afraid that the concept of jurisdiction in the context of a plea of this nature is quite often confused, and not infrequently, and is not comprehended with necessary clarity. The loosely coined words, the hastily prepared head-notes, and hurriedly referred to passages - all have contributed to the misapprehension of the real legal position. The times when nuances of certain legal concepts like 'jurisdiction' had been discussed from erudite legal angles are now somewhat rear. Specialists have conquered many fields, even in the domain of Law. There is a strong view even among the specialists that it is the general lawyer who had contributed substantially to the overall development of Law. (See the Hamlyn Law Lectures on Income Tax by Murphy, himself a non lawyer). We too have similar experiences. The entire general law is useful in understanding the legal position. 14. The concept of 'jurisdiction' in different contexts such as under Section 115 C.P.C. had arisen from very early times. Addition of a party in a case, [Razia Begum v. Sahebzadi Anwar Begum, AIR 1....
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....ry, AIR 1949P.C. 239 and Kesharder Chamaria v. Radha Kissen Chamaria, AIR 1953 S.C. 23 were among the cases particularly noted. The observations in paragraph 9 are also not to be overlooked. 15. The question pointedly arose in a case from Kerala, Ittiyavira Mathai v. Varkey Varkey decided by a Five-Judge Bench on 15-1-1963. (This was not noted in the later decision in AIR 1964 S.C. 1336). Paragraph 8 occurring at Page 910 would make matters transparently clear. It can be, with profit, extracted in full :- "(8) It is however contended for the respondent that a decision on a question of limitation involves the question of jurisdiction and in support of this contention reliance is placed on the case reported as Joy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind App 131 at p. 142: (AIR 1949 PC 239 at p. 242). This case laid down no different principle of law. What it said in that connection was quoted with approval in Kesharder Chamaria v. Radha Kissen Chamaria, 1953 SCR 136 at p. 152: (AIR 1953 SC 23 at p. 28) and those observations are: "There have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of suc....
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....ot be obligatory for the Constitutional Court to decide on factual aspects of limitation questions, invoking the power under Article 226, of the Constitution. 16. There are other reasons as well which would make it supremely inexpedient for Constitutional Courts to deal with such questions in the first instance. 17. Issues involving factual findings would require close scrutiny of the materials and documents. This is better done by the officer dealing with the matters almost in a routine manner. He would be familiar with the parties, the persons dealing with the correspondence and acting on their behalf, the nature and extent of the activities of the parties involved, the primary character of the problem posed and the emphasis on and significance attachable to particular aspects in a medley of documents and the multiplicity of transactions. A busy High Court may not as effectively find it easy to scan the documents with as much leisure as an officer on the spot, in intense intimacy with the details. A filtration process through the various levels of remedial structures would only add to the needed clarity. When the finally distilled product is available, it would be easier for th....
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....ctual aspects. 21. Many decisions have been cited before us to indicate that High Courts have interfered in matters where further proceedings are found to have been barred by time. Some of the decisions appear, with great respect, to have not embarked upon the detailed considerations of very many aspects, which we have discussed above at some length. In any view of the matter, we are of the view that on the face of it, it is impossible to predicate in the circumstances a clear case where the bar of limitation is attracted. It will be unsafe in such cases, to enter positive findings of fact in relation to the very many ingredients of Section 11A, on the basis of affidavit pleadings as available, the chosen documents as furnished, the defaulted defences most often come across, and inadequate attention paid in respect of a multiplicity of facets and facts, which require closer attention and detailed discussions. Instances are not rare, where documents furnished by the Petitioner turn out to be incomplete or misleading. Experience shows that there have been even cases of fabrication of documents, which had gone unnoticed in the busy schedule and pressurised work of the Court. 22. It ....
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....ch decision of the Supreme Court on the inter-relationship between limitation and jurisdiction is now available. That is a later decision vis-a-vis East India Commercial Co. case supra. That authoritative pronouncement cannot be overlooked, in the circumstances. 25. It is unnecessary to load this Judgment either by the distinguishing factors existing or on our differential approach from the rulings of the various High Courts including those of the Allahabad High Court in Uttar Pradesh Forest Corpn. v. U.O.I. - 1988 (34) E.L.T. 627 (All.), of the Gujarat High Court in Vijay Textile v. Union of India - 1979 (4) E.L.T. 18, of the Karnataka High Court in N. Nagamanickam Setty v. Collector of Central Excise - 1983 (14) E.L.T. 2301 (Kar.), and N. Nagamanickam Setty v. Collector of Central Excise, Bangalore - 1986 (23) E.L.T. 75 (Kar.), of the Calcutta High Court in S.A. International v. Collector of Customs - 1988 (36) E.L.T. 445 (Cal.), of the Bombay High Court in Rubi Mills Limited v. Union of India - 1987 (31) E.L.T. 904 (Bom.), of the Madras High Court in Seshasayee Paper and Boards Ltd., Salem v. The Assistant Collector, Central Excise, Salem - 1979 (4) E.L.T. 238, Madras Rubber Fa....
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....ahman v. Emperor - (1926) XXIX The Bombay Law Reporter 813. The following passage, compressed in the reputed precision of the Privi Council decisions, gives the complete answer : "It has, indeed, been submitted by Counsel that inasmuch as special leave to appeal has been granted, the ordinary rules limiting the exercise of this jurisdiction ceased to apply. But this is not so. The case of Arnold v. The King - Emperor was a case where special leave had been given and where notwithstanding such leave, their Lordships adopted and repeated the language of Lord Watson in In re .'Abraham Mallory Dillet which was as follows (P 173) :- "The rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done." (See Abdul Rahman v. Emperor, 1926 The Bombay Law Reporter, Vol XXIX, at page 820) (emphasis supplied). The Supreme Court of India also has revoked special leave granted by it, when facts justifying the ....
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....titioners in consideration of the matter by Department authorities. 29. It is sufficient at this stage to show that every argument to bring in one element or the other of the tests laid down for the applicability of Section 11A, had been attempted to be countered by the Revenue with reference to materials and circumstances. We are not satisfied that such materials, circumstances and submissions are denuded of all force or substance. A clearer and final pronouncement, of course, would require concentrated attention on the pleas, evidence, and materials and evaluation of the principles. 30. In the light of the discussions, we are clearly of the view that the Petitioners have to be relegated to remedies available under the statute itself. This is not a case where power under Article 226 of the Constitution should be exercised. We decline Jurisdiction under Article 226. 31. History contains a Kaleidoscopic view of many curious events. The very concept of the Fundamental Rights and the Constitutional Courts, would appear to have gathered significance and momentum from time when the people in Princely States were as eager to move into the mainstream of the democratic set up as their ....