Piramal Spg. and Wvg. Mills Ltd. vs Union of India

Pendse, J.—This is an appeal preferred against the judgment dated November 22, 1985 delivered by Mr. Justice Bharucha on Writ Petition No. 1829 of 1981. The learned Judge dismissed the petition in view of the earlier judgment dated October 31, 1985 delivered by Mrs. Justice Manohar in Writ Petition No. 1420 of 1981 [reported as Kamala Mills Ltd. Vs. Union of India and others, . The points raised before Mr. Justice Bharucha were identical as those raised before Mrs. Justice Manohar.

Against the judgment delivered by Mrs. Justice Manohar in Write Petition No. 1420 of 1981, Appeal No. 5 of 1981 was filed before the Division Bench of this Court, but the appeal was dismissed by judgment dated October, 13, 1987 Kamala Mills Ltd., Bombay Vs. Union of India and others, and the order of Mrs. Justice Manohar was upheld. In view of the judgment, the controversy in this appeal also stands concluded.

The learned counsel appearing on behalf of the appellants raised one additional contention which was not raised before the learned single Judge or in respect of which no ground has been taken in the appeal memo. The learned counsel urged that the recovery is sought to be made from the appellant by four show cause notices and the last show cause notice was issued on October 6, 1977 and covered the period commencing from April 1, 1977 and ending with May 30, 1977. The learned counsel urged that Section 11A of the Central Excise Act came into effect from August 6, 1977 and by this amended section, the power conferred on the excise authorities to demand short levied duty was restricted to a period of six months prior to the date of issue of notice. The learned counsel urged that as the show cause notice is dated October 6, 1977, it was not permissible to cover the period from April 1, 1977 as it was beyond the duration of six months. The period can commence, says the learned counsel, only from April, 6, 1977 and the show cause notice, therefore, erroneously included period of five days of escapement of duty. We are not inclined to examine this aspect for more than one reason. In the first instance, such a contention was not raised before the learned single Judge, nor any ground has been taken in the appeal memo and it is not permissible for the appellant to take the respondents by surprise only at the time of hearing of the appeal. Secondly, the appellants have secured stay of the recovery of the short paid duty at the time of admission of the appeal and the stay was granted on appellants depositing 50% of the duty and furnishing Bank guarantee for the remaining 50%. The appellants will now be required to pay the balance amount without any interest and that is the advantage which has been secured by the appellants. In these circumstances, even assuming that the respondents are recovering duty for a period of five days contrary to the period of limitation fixed u/s 11A of the Act, we are not inclined to entertain that grievance in exercise of our writ jurisdiction.

Accordingly, appeal fails and is dismissed with costs.