Ceat Limited Vs. Union of India (Uoi)

Ceat Limited vs Union of India (Uoi)

Type Court Judgment Court Mumbai Decided Apr 19, 1999

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Citation: sooperkanoon.com/367656
Court: Mumbai High Court
Judge: B.P. Saraf and ;D.G. Deshpande, JJ.
Decided On: Apr 19, 1999
Case Number: Writ Petition No. 1784 of 1999
Subject: Excise

Case Summary

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

- Section 34: [D.K. Deshmukh, S.J. Vazifdar & J.P. Devadhar, JJ] Court fee on Petition under Section 34 of the Act Bombay Court Fees Act (36 of 1959), Schedule I, Article 3, Schedule II, Article 1(f)(iii) Held, According to Article 3 of Schedule I, on any plaint, application or petition or memorandum of appeal for...

Key legal issue: Excise
Acts & sections: Central Excise Act, 1944 - Sections 35 and 35F

Parties & Advocates

Appellant / Petitioner

Ceat Limited

Advocate A.M. Setalvad, ;D.B. Shroff and ;H.N. Vakil, Advs., i/b., Mulla and Mulla

Respondent

Union of India (Uoi)

Advocate J.R. Deodhar, Adv.

Legal References

Acts: Central Excise Act, 1944 - Sections 35 and 35F
Reported In: 1999(108)ELT336(Bom)

Excerpt

.....reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in..........financial year. mr. setalvad submits that this order is liable to be quashed and set aside with costs.5. mr. deodhar, learned counsel for the respondents, fairly stated that so far as the impugned order is concerned, he cannot defend the same because it is an unreasoned one. he stated that he would like to issue necessary instruction to the respondents to pass reasoned orders in future. he, therefore, stated that in the facts and circumstances of this case, this order may be set aside and the matter may be remanded to the commissioner (appeals) for fresh reasoned order.6. we have carefully considered the rival submissions of both the parties. this is not the first case where we are confronted with an order on application for dispensation of the requirement of pre-deposit under section 35 of the central excise act, 1944, and stay of the disputed demand pending hearing of the appeal, which is mechanical and without application of mind. during the last six months, we had to set aside a number of such orders for the very same reason. the commissioners (appeals) have been directed by this court to apply their mind to the facts and circumstances of the case before passing orders on the application for dispensation of the requirement of pre-deposit and to pass reasoned order. we are constrained to note that despite of such repeated observations, things have not improved.7. in the facts and circumstances of the case and in view of the fair stance taken by the learned counsel for the respondents, we set aside the impugned order with a direction to the commissioner (appeals) to give a hearing to the petitioners and after considering the submissions of the petitioners and the facts and circumstances of the case, pass a reasoned order.8. writ petition disposed of accordingly with no order as to costs.

Full Judgment

ORDER

1. By this writ petition the petitioners seek to challenge the order of the Commissioner of Central Excise and Customs (Appeals) Pune, dated 12-3-1999 (Exhibit 'A' to the writ petition) by which the application of the petitioners for dispensation of the requirement of pre-deposit of duty under Section 35F of the Central Excise Act, 1944, has been rejected and the petitioners have been directed to deposit the full amount of disputed duty and penalty on or before 30-3-1999 as a pre-condition for admission of the appeal.

2. The learned Counsel for the parties are agreed that in view of the limited nature of controversy, this writ petition may be disposed of finally at the admission stage itself.

3. Hence rule, returnable forthwith. Respondents, waive service. By consent, writ petition is taken on board for hearing and final disposal.

4. Mr. Setalvad, the learned Counsel for the petitioners submits that the impugned order is most arbitrary and illegal. He submits that the order is a mechanical, unreasoned order and does not even show any application of mind of the officer whatsoever. He submits that the order has been passed on 12-3-1999 only to coerce the petitioners to deposit the amount before the end of the financial year. Mr. Setalvad submits that this order is liable to be quashed and set aside with costs.

5. Mr. Deodhar, learned Counsel for the respondents, fairly stated that so far as the impugned order is concerned, he cannot defend the same because it is an unreasoned one. He stated that he would like to issue necessary instruction to the respondents to pass reasoned orders in future. He, therefore, stated that in the facts and circumstances of this case, this order may be set aside and the matter may be remanded to the Commissioner (Appeals) for fresh reasoned order.

6. We have carefully considered the rival submissions of both the parties. This is not the first case where we are confronted with an order on application for dispensation of the requirement of pre-deposit under Section 35 of the Central Excise Act, 1944, and stay of the disputed demand pending hearing of the appeal, which is mechanical and without application of mind. During the last six months, we had to set aside a number of such orders for the very same reason. The Commissioners (Appeals) have been directed by this court to apply their mind to the facts and circumstances of the case before passing orders on the application for dispensation of the requirement of pre-deposit and to pass reasoned order. We are constrained to note that despite of such repeated observations, things have not improved.

7. In the facts and circumstances of the case and in view of the fair stance taken by the learned Counsel for the respondents, we set aside the impugned order with a direction to the Commissioner (Appeals) to give a hearing to the petitioners and after considering the submissions of the petitioners and the facts and circumstances of the case, pass a reasoned order.

8. Writ petition disposed of accordingly with no order as to costs.

Same Court & Year Mumbai · 1999 Same Parties Ceat Limited vs Union of India (Uoi) Same Subject Excise Same Judge B.P. Saraf and ;D.G. Deshpande, JJ. Acts & Sections Central Excise Act, 1944 - Sections 35 and 35F

Excise