TaxTMI 
TaxTMI 
1998 (3) TMI 135
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....se notice and hence the period stood extended by the entire time when the stay order was in operation. 2. Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT - the acronym hereafter) held that the assessment was not provisional and hence the first premise was not available to the Revenue. But it held by a majority of 2 : 1 that the interim order of the Delhi High Court dated 12-8-1991 operated as virtually a stay, though not expressly so, against issuance of show cause notice and hence there was no bar of limitation for recovering the amount of excise duty levied. Thus, the Revenue was permitted by the CEGAT to proceed to recover the duty. The said order of CEGAT is challenged in this appeal. 3. The facts which led to the opening of the aforesaid question can be summarised as follows : Appellant has a textile mill consisting of various divisions, among which the division where yarn is made is distinct from other divisions. Yarn is to be used in the manufacture of fabric which is the end product of the textile mill of the appellant. Yarn is obtained at an intermediary stage in the composite textile mill and is further processed in the mill for making fabric. According....
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.... has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if for the words "six months", the words "five years" were substituted. Explanation. - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be. (2) Considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. ....
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....of the case, we have to deal with a preliminary objection raised by the Revenue regarding maintainability of this appeal. In the appeal petition it is stated that the appeal is filed under Section 35L(b) of the Act which reads as under : "35L. Appeal to Supreme Court. - An appeal shall lie to the Supreme Court from - (a) xxx xxx xxx (b) any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment." 8. We agree with the learned counsel for the Revenue that the question sought to be determined in this appeal has neither any relationship to the rate of duty of excise or to the value of the goods for purpose of assessment. It may be that the appeal could not have been filed under the aforesaid Section on the facts of this case. 9. Be that as it may, we are not disposed to dismiss this appeal on that technical ground at this stage because the appellant could in that situation have sought for special leave under Article 136 of the Constitution. With all the papers available for deciding the question involved ....
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....ceedings pursuant to notices dated 4th and 5th May, 1981 relating to the period 6-11-1980 to 31-3-1981. 14. The High Court of Delhi has allowed the said petition on 12-8-1981 in terms of the said prayer. The contention which the Revenue pressed into service before CEGAT and which was found acceptance by them is that as per the second limb, the stay became operative which virtually amounted to stay of service of notice under Section 11A of the Act. 15. Exclusion of any period from the time provided for issuing notice which is contemplated in Section 11A of the Act is mentioned in the Explanation which is incorporated as part of that Section. Period of the stay can be excluded if "the service of the notice is stayed by an order of a Court". The converse is, if there is no stay of service of notice, there is no scope for excluding any time from the period of limitation as per this Explanation. 16. If a very strict interpretation is given, notice should have been issued before passing the order of stay so that service of the notice could be blocked. But such an extreme view is not necessary for understanding the contours of the Explanation. 17. In considering whether the ex....
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.... lengthening of the limitation period must be strictly construed. 20. The notice envisaged in sub-section (1) of Section 11A of the Act can be issued under any one of the four conditions : (i) when duty of excise has not been levied on the commodity; (ii) when such duty has been short-levied; or (iii) when such duty, though levied, has not been paid; or (iv) when such duty levied was only short-paid. 21. If any one of the above conditions exists, the notice contemplated therein can be issued. It is an extremely difficult proposition for acceptance that Collector of Central Excise was prevented from issuing a notice to the appellant in this case as the Delhi High Court has restrained the department from "giving effect to the contents of the directives of the Board dated 24-9-1980". The said directive of the Board was mainly intended to be observed by the Collector of Central Excise as well as other officials under him to carry out certain steps while exercising powers under Rule 9(1) of the Act and also for making delegation of such powers to the licensing authorities. Here the test is, if the said circular (or directive) had not been issued....
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....was cited before another three-judge Bench in the case of Sri Baru Ram v. Shrimati Prasanni and Others, 1959 SCR 1403 where it was not dissented from. But in the light of the decision of the Constitution Bench of this Court in Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and Others, 1965 (1) SCR 712, the ratio adopted in the earlier mentioned two decisions is no more in vogue. The Constitution Bench held that this Court has power to decide all points arising from the impugned judgment and even in the absence of an express provision like Order 41, Rule 22, CPC, this Court can devise appropriate procedure to be adopted at the hearing. The observations of the Bench which are relevant now are the following :- "There could be no better way of supplying the deficiency than by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Consideration of justice, therefore, require that this Court should in appropriate cases permit a party....