Johnson and Johnson Limited Vs. Collector of Central Excise and 2 ors.

Johnson and Johnson Limited vs Collector of Central Excise and 2 ors.

Type Court Judgment Court Mumbai Decided Jul 09, 1985

~5 min read

https://sooperkanoon.com/case/358497

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/358497
Court: Mumbai High Court
Judge: Pendse, J.
Decided On: Jul 09, 1985
Case Number: Writ Petition No. 1186 of 1985
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

STAY - appellate authority directed to dispose of stay application. Goods allowed release and recovery not to be enforced in the meanwhile. Bank guarantee from other than national bank acceptable. - CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosal...

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Johnson and Johnson Limited

Respondent

Collector of Central Excise and 2 ors.

Legal References

Reported In: 1989(20)LC387(Bombay)

Excerpt

.....desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not ..........excise (appeals). the petitioners were aggrieved by the action of the respondents in proceeding to recover a large amount of rs. 1,82,20,194.56 in pursuance of the order which is under appeal. it is obvious and shri sethna does not dispute that fact that the recovery is made in pursuance of the order which is under appeal. it is not necessary to entertain the petition at this juncture because it is open for the petitioners to approach the appellate authority and apply for stay of the enforcement of the order under appeal and consequently of the order of recovery of the large amount. in case, the petitioners have not filed the application for stay till today, then such stay application should be filed within a period of one week from today. on such stay application being filed, the appellate authority should try to dispose it of, as far as possible, within a period of four weeks from the date of presentation of the application.3. shri desai submits that pending the disposal of the stay application, it is necessary to grant relief to the petitioners as the respondents have already attached goods which are medicinal items and of a value of approximately rs. 67,00,000/-. shri desai submits that in case goods are not released, it would cause serious hardships and consequences not only to the petitioners but also to the hospitals. in these circumstances, in my judgment, the fair order to pass would be to direct the respondents to release these goods forthwith on the undertaking of the petitioners to furnish bank guarantee of a nationalised bank of the value of rs. 67,00,000/- in favour of the collector of central excise. the petitioners through their counsel shri desai gives an undertaking to furnish the requisite bank guarantee within a period of one week from today. undertaking accepted. in view of the undertaking, the respondents are directed to release the goods attached on june 24, 1985. the amount covered by the bank guarantee would be available to the.....

Full Judgment

Pendse, J.

1. Heard Shri Desai for the petitioners and Shri Sethna for the respondents.

2. It is not necessary to entertain this petition in view of the fact that the petitioners have already filed an appeal against the order passed by the Assistant Collector, Central Excise, and the appeal is pending before the Collector of Central Excise (Appeals). The petitioners were aggrieved by the action of the respondents in proceeding to recover a large amount of Rs. 1,82,20,194.56 in pursuance of the order which is under appeal. It is obvious and Shri Sethna does not dispute that fact that the recovery is made in pursuance of the order which is under appeal. It is not necessary to entertain the petition at this juncture because it is open for the petitioners to approach the appellate authority and apply for stay of the enforcement of the order under appeal and consequently of the order of recovery of the large amount. In case, the petitioners have not filed the application for stay till today, then such stay application should be filed within a period of one week from today. On such stay application being filed, the appellate authority should try to dispose it of, as far as possible, within a period of four weeks from the date of presentation of the application.

3. Shri Desai submits that pending the disposal of the stay application, it is necessary to grant relief to the petitioners as the respondents have already attached goods which are medicinal items and of a value of approximately Rs. 67,00,000/-. Shri Desai submits that in case goods are not released, it would cause serious hardships and consequences not only to the petitioners but also to the hospitals. In these circumstances, in my judgment, the fair order to pass would be to direct the respondents to release these goods forthwith on the undertaking of the petitioners to furnish Bank guarantee of a Nationalised Bank of the value of Rs. 67,00,000/- in favour of the Collector of Central Excise. The petitioners through their counsel Shri Desai gives an undertaking to furnish the requisite Bank guarantee within a period of one week from today. Undertaking accepted. In view of the undertaking, the respondents are directed to release the goods attached on June 24, 1985. The amount covered by the Bank guarantee would be available to the respondents, in case the appellate authority declines to grant stay of the order or of the consequential recovery. The Bank guarantee not to be enforced by respondents for a period of two weeks from the date of disposal of stay application.

As regards the balance amount out of threatened recovery of Rs. 1,82,20,194.56, Shri Desai apprehends that the respondents may take action and attach further goods. 1 had earlier passed an ad-interim order restraining the respondents from taking any further steps for recovery of the balance amount. Shri Desai submits that the respondents should be restrained from recovering this balance amount pending the stay application. The submission made by Shri Desai is fair and the relief can be granted as the stay application is to be decided within a period of four weeks from the date of the presentation of the application. Accordingly, the respondents are directed not to recover balance amount or to take any steps in that respect till the disposal of the stay application by the appellate authority and two weeks thereafter.

4. As regards the clearance of the goods, it is made clear that the respondents should permit the petitioners to clear the goods on the basis that they are classifiable under Tariff item No, 68 and are exempt from the duty under Notification 62/78. This relief is granted to the petitioner only till the disposal of the stay application and two weeks thereafter but on condition that the petitioners would furnish Bank guarantee in favour of the Collector of Central Excise for the difference in the duty payable under Tariff Item 68 and under Tariff Item 14-E as held by the order under challenge before the appellate authority.

5. It is made clear that the directions in this order are given only to facilitate the petitioners to clear the goods and run their factory and the direction should not be construed in any manner as determining the right of the petitioners or the claim of the petitioners raised in the petition. The appellate authority is at liberty to dispose of the stay application on merits after hearing both the sides.

6. At this stage, Shri Desai submits that the petitioners should be permitted to furnish Bank guarantee of Hongkong & Shanghai Bank where the petitioners have account instead of Nationalised Bank. It is open for the petitioners to furnish Bank guarantee of this Bank only instead of Nationalised Bank.

7. In view of this direction as mentioned hereinabove, the petition is not required to be entertained and petition is allowed to be withdrawn on application of Shri Desai for the petitioners.

Same Court & Year Mumbai · 1985 Same Parties Johnson and Johnson Limited vs Collector of Central Excise an... Same Subject Excise Same Judge Pendse, J.

Excise