R.B. Polysacks Vs. Commissioner (Appeals) Central Excise

R.B. Polysacks vs Commissioner (Appeals) Central Excise

Type Court Judgment Court Madhya Pradesh Decided Jun 29, 1998

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Citation: sooperkanoon.com/509721
Court: Madhya Pradesh High Court
Judge: Deepak Verma, J.
Decided On: Jun 29, 1998
Case Number: Writ Petition No. 858/98
Subject: Excise

Case Summary

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

- ARBITRATION AND CONCILIATION ACT, 1996. Sections 7, 2(1)(1), 3 & 11 (6): [A.K. Patnaik, C.J.,.S.S. Jha & A.M. Sapre, JJ] Arbitration of disputes arising out of works contract between State or its undertaking and Contractor Arbitration agreement Held, If a Works contract, as defined in Section 2(1)(i) of the M.P...

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

Parties & Advocates

Appellant / Petitioner

R.B. Polysacks

Advocate A.M. Mathur, Sr. Counsel and ;Upadhyaya, Adv.

Respondent

Commissioner (Appeals) Central Excise

Advocate B.G. Neema, Adv.

Legal References

Acts: Central Excise Act, 1944 - Sections 35F
Cases Referred: P) (Siddarth Tubes Ltd. v. Union of India). In
Reported In: 1998(103)ELT16(MP)

Excerpt

.....act, 1996. sections 7, 2(1)(1), 3 & 11 (6): [a.k. patnaik, c.j.,.s.s. jha & a.m. sapre, jj] arbitration of disputes arising out of works contract between state or its undertaking and contractor arbitration agreement held, if a works contract, as defined in section 2(1)(i) of the m.p. madhyastham adhikaran adhiniyam, 1983 contains an arbitration clause, either party to the works contract will have to refer the dispute to the arbitration tribunal as constituted under section 3 of the adhiniyam and cannot refer it to any other arbitrator for arbitration. the 1983 adhiniyam is, therefore, a law for the time being in force relating to arbitration pursuant to an arbitration agreement between the state government or its undertaking and the contractor and is save under section 2(5) of the arbitration and conciliation act, 1996 from the provisions of part-i of the arbitration & conciliation act, 1996 which are inconsistent with the provisions of the 1983 adhiniyam. the state legislature is competent to make a law in respect of arbitration in entry 13 of the concurrent list, even though the arbitration act, 1940 made by the central legislature was already in the same field because the 1983 adhiniyam had been reserved for consideration and had received the assent of the president, as provided in clause (2) of article 254 of the constitution, parliament was competent to make the 1996 act in the same field, but while making the 1996 act, has expressly saved the provisions of the 1983 adhiniyam in sub-sections (4) and (5) of section 2 of the 1996 act, both in respect of statutory arbitrations and arbitrations pursuant to arbitration agreements in respect of disputes arising out of works contracts between the state government or a state government undertaking and the contractor from the provisions of part-i of the 1996 act which are inconsistent with the provisions of the 1983 adhiniyam. hence, the provisions of the 1983 adhiniyam are not repugnant to the provisions..........however, the counsel for the parties have been heard at length.4. i have perused the record. shri b.g. neema appearing for respondents has further tried to support the impugned order passed by commissioner (appeals) by submitting that the order shows that it has been passed after due consideration of all the material placed before the appellate authority. only thereafter the appellate authority came to the conclusion that there was no prima facie case in favour of the petitioner. consequently the petitioners' said application has been rejected. according to him it was not necessary on the part of the commissioner (appeals) to elaborate further or to mention any more facts in this regard. according to him the order is in conformity with the provisions contained in section 35f of the central excise act, 1944.5. however, without expressing any opinion of the propriety, correctness or illegality of the impugned order i deem it fit to give a direction to respondent no. 1 commissioner (appeals) to hear and consider the petitioners' appeals on merits within a period of three months from the date of communication of this order in accordance with law. it is clarified that atleast for a period of 3 months or till the pendency of appeals, whichever is earlier, the respondent no. 2 shall not resort to any coercive method to recover the amount of duty from the petitioners.6. with these observations all these petitions stand finally disposed of, but with no order as to costs. parties shall appear before respondent no. 1 on 8th july, 1988. cc on payment.

Full Judgment

Deepak Verma, J.

1. Shri A.M. Mathur, Senior Counsel with Shri Upadhyaya Counsel for the petitioner. He is heard on the question of admission.

2. Learned Counsel submitted that in this petition and in connected petitions listed today, being W.P. No. 859 of 1998 [R.B. Polysacks, Indore v. The Commissioner (Appeals)] W.P. No. 860 of 1998 [Commercial v. Commissioner (Appeals)] W.P. No 861 of 1998 [Neo Sack Ltd., Indore v. The Commissioner Appeals)] W.P. No 862 of 1998 [Neo Sack Ltd. v. The Commissioner (Appeals)] and W.P. No. 877 of 1998 [R.B. Polysacks v. Commissioner (Appeals)], common questions are involved and the same identical order is under challenge, therefore, they be also heard and disposed of simultaneously. Copies of the petitioner together with annexures have been served on the standing counsel for respondent Shri B.G. Neema today. He was called to appear on behalf of the respondents. He has, accordingly, appeared before me. He utrenuously prays this Court for grant of time to file an appropriate reply and to put on record in writing that the petitioner has no case on merits.

3. However, looking to the limited controversy involved in this petition and the connected petitions, in the considered opinion of this Court, no useful purpose would have been served by keeping all these petitions pending as the question involved in these petitions appears to be clearly covered by a judgment of this Court and other Courts passed from time to time. Reference in this regard is sufficient to be made, to a judgment reported in : 1995ECR448(MP) (Siddarth Tubes Ltd. v. Union of India). In this view of the matter I have declined to grant any further time to the respondents to file reply in writing. However, the counsel for the parties have been heard at length.

4. I have perused the record. Shri B.G. Neema appearing for respondents has further tried to support the impugned order passed by Commissioner (Appeals) by submitting that the order shows that it has been passed after due consideration of all the material placed before the Appellate Authority. Only thereafter the Appellate Authority came to the conclusion that there was no prima facie case in favour of the petitioner. Consequently the petitioners' said application has been rejected. According to him it was not necessary on the part of the Commissioner (Appeals) to elaborate further or to mention any more facts in this regard. According to him the order is in conformity with the provisions contained in Section 35F of the Central Excise Act, 1944.

5. However, without expressing any opinion of the propriety, correctness or illegality of the impugned order I deem it fit to give a direction to respondent No. 1 Commissioner (Appeals) to hear and consider the petitioners' appeals on merits within a period of three months from the date of communication of this order in accordance with law. It is clarified that atleast for a period of 3 months or till the pendency of appeals, whichever is earlier, the respondent No. 2 shall not resort to any coercive method to recover the amount of duty from the petitioners.

6. With these observations all these petitions stand finally disposed of, but with no order as to costs. Parties shall appear before respondent No. 1 on 8th July, 1988. CC on payment.

Same Court & Year Madhya Pradesh · 1998 Same Parties R.B. Polysacks vs Commissioner (Appeals) Central Excise Same Subject Excise Same Judge Deepak Verma, J. Acts & Sections Central Excise Act, 1944 - Sections 35F

Excise