Elecon Engineering Co. Ltd. Vs. Union of India (Uoi)

Elecon Engineering Co. Ltd. vs Union of India (Uoi)

Type Court Judgment Court Gujarat Decided Oct 19, 2004

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Citation: sooperkanoon.com/748152
Court: Gujarat High Court
Judge: A.R. Dave and; K.A. Puj, JJ.
Decided On: Oct 19, 2004
Case Number: Special Civil Application No. 9940 of 2004
Subject: Excise

Case Summary

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

- Sections 4(3), Proviso, 5 & 6: [M.S. Shah, D.H. Waghela & Akil Kureshi, JJ] Complaint alleging inaccuracy or deficiency in maintaining record in prescribed manner as required under Section 4(3) - Held, It need not contain allegation of contravention of provisions of Section 5 or Section 6. Burden to prove that th...

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Elecon Engineering Co. Ltd.

Respondent

Union of India (Uoi)

Advocate Trivedi and Gupta, Advs.,; Jitendra Malkan,; C.G.S.C.

Legal References

Cases Referred: Daelim Industrial Co. Ltd. v. Commissioner of
Reported In: 2005(182)ELT148(Guj)

Excerpt

.....5 & 6: [m.s. shah, d.h. waghela & akil kureshi, jj] complaint alleging inaccuracy or deficiency in maintaining record in prescribed manner as required under section 4(3) - held, it need not contain allegation of contravention of provisions of section 5 or section 6. burden to prove that there was contravention of provisions of section 5 or 6 does not lie upon prosecution. sections 5 & 6 & pre-conception & pre-natal diagnostic techniques (prohibition of sex selection) rules, 1996, rule 9: [m.s. shah, d.h. waghela & akil kureshi, jj] deficiency or inaccuracy in filling form f - held, deficiency or inaccuracy in filling form f prescribed under rule 9 of the rules made under pndt act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the pndt act and has to be treated and tried accordingly. it does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the act and the court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filing up the forms. for example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her. section 28: [m.s. shah, d.h. waghela & akil kureshi, jj] cognizance of offence held, use of the words appropriate authority twice, at the beginning and end of clause (a) of sub-section (1) of section 28, clearly conveys that complaint could be made by..........this court should ordinarily not interfere as observed by this court on 10-9-2004 in the case of sterlite industries (india) limited v. union of india, s. c. a. no. 11489 of 2004. we have considered the said argument. however, looking to the facts of the case, we are of the opinion that the discretion had not been properly exercised by the commissioner (appeals) for the reasons stated hereinbelow.5. upon hearing the learned advocates and looking to the facts of the case, it appears that the discretion had not been properly exercised by the appellate authority in the matter of determination of the amount of pre-deposit. in view of the order passed by cestat in the case of daelim industrial co. ltd. v. commissioner of c ex., vadodara reported in 2003 (155) e.l.t. 457, and confirmed by the hon'ble supreme court [2004 (170) e.l.t. a181 (s. c)] and in the matter decided by cestat in case of larsen & toubro ltd. v. c e, cochin, cestat delhi, reported in 2004 (174) e.l.t. 322 (tri.) = 2004 (60) rlt 505, in our opinion, lenient view ought to have been taken while determining the amount of pre-deposit.6. looking to the facts of the case, we are of the opinion that it would be just and proper to direct the petitioner to deposit 10% of the amount of assessment within a period of 8 weeks from today. after the said amount is deposited, the commissioner (appeals) of central excise & customs shall hear the appeal and shall make an effort to dispose it off as soon as possible. learned advocate appearing for the petitioner has assured this court that the petitioner shall extend full co-operation to the commissioner (appeals) so that the appeal can be decided at any early date.7. in view of the above order, the petition stands disposed off as allowed. rule is made absolute to the above extent with no order as to costs.8. learned senior central government standing counsel mr. jitendra malkan has requested that implementation of this order should be stayed for a period of four.....

Full Judgment

A.R. Dave, J.

1. RULE. Service of Rule is waived by learned Senior Central Government Standing Counsel Shri Jitendra Malkan for the respondents. At the request of the learned Advocates, the petition is finally heard today.

2. As an appeal filed by the petitioner is pending before the Commissioner (Appeals) of Central Excise and Customs, Vadodara and the issue involved in this application is only with regard to the amount of pre-deposit, we would not like to say anything on the merits of the case which is pending before the appellate authority.

3. The short question which has been involved in the petition is with regard to the amount of pre-deposit. An application for waiver of the amount of pre-deposit had been turned down by the Commissioner (Appeals) of Central Excise and Customs under his order dated 27-7-2004 and being aggrieved by the said order, the petitioner has approached this Court.

4. Learned Senior Standing Counsel Mr. Jitendra Malkan appearing for the respondents has taken a preliminary objection and has vehemently argued that in the matters where discretion with regard to determination of the amount of pre-deposit has been exercised by the appellate authority, this Court should ordinarily not interfere as observed by this Court on 10-9-2004 in the case of Sterlite Industries (India) Limited v. Union of India, S. C. A. No. 11489 of 2004. We have considered the said argument. However, looking to the facts of the case, we are of the opinion that the discretion had not been properly exercised by the Commissioner (Appeals) for the reasons stated hereinbelow.

5. Upon hearing the learned Advocates and looking to the facts of the case, it appears that the discretion had not been properly exercised by the appellate authority in the matter of determination of the amount of pre-deposit. In view of the order passed by CESTAT in the case of Daelim Industrial Co. Ltd. v. Commissioner of C Ex., Vadodara reported in 2003 (155) E.L.T. 457, and confirmed by the Hon'ble Supreme Court [2004 (170) E.L.T. A181 (S. C)] and in the matter decided by CESTAT in case of Larsen & Toubro Ltd. v. C E, Cochin, CESTAT Delhi, reported in 2004 (174) E.L.T. 322 (Tri.) = 2004 (60) RLT 505, in our opinion, lenient view ought to have been taken while determining the amount of pre-deposit.

6. Looking to the facts of the case, we are of the opinion that it would be just and proper to direct the petitioner to deposit 10% of the amount of assessment within a period of 8 weeks from today. After the said amount is deposited, the Commissioner (Appeals) of Central Excise & Customs shall hear the appeal and shall make an effort to dispose it off as soon as possible. Learned Advocate appearing for the petitioner has assured this Court that the petitioner shall extend full co-operation to the Commissioner (Appeals) so that the appeal can be decided at any early date.

7. In view of the above order, the petition stands disposed off as allowed. Rule is made absolute to the above extent with no order as to costs.

8. Learned Senior Central Government Standing Counsel Mr. Jitendra Malkan has requested that implementation of this order should be stayed for a period of four weeks from today. We do not see any justifiable reason for the same and hence, the said request is rejected.

Same Court & Year Gujarat · 2004 Same Parties Elecon Engineering Co. Ltd. vs Union of India (Uoi) Same Subject Excise Same Judge A.R. Dave and; K.A. Puj, JJ.

Excise