Commissioner of C. Ex. Vs. Supra Foundry Services (P) Ltd. - Court Judgment

Excerpt:
- sections 138 & 143, second proviso: [jawad rahim, j] offence under-section 143- power of court to try cases summarily - the stage at which the power could be exercised the second proviso to section 143 - interpretation of - held, the non-obstante clause appearing in section 143 as notwithstanding anything contained in crp.c., the procedure prescribed under section 143 of the act has to be applied for trial of the accused for the offence under section 138 of the n.i.act. undoubtedly the accused is facing charge for the offence under section 138 of the act and keeping in mind the non-obstante clause appearing in section 143 of the act, what is envisaged under section 143 becomes applicable. the trial court must follow the mandate of section 143 of the act and not necessarily the provision of section 259, cr.p.c., in the resultant position, it can be said that in view of the words at the commencement of trial and during the course of trial, the power of the magistrate to decide as ot whether the case should be tried as summary case or warrant case could be exercised at any of the stages. thus, it could be affirmatively stated that there is no impediment to convert a case from summons case to warrant case for the offence under section 138 of the act either before commencement of trial or even after trial has commenced. - in a short judgment, the apex court has reiterated the well settled proposition of law that a provision of the present act cannot have retrospective application obviously in view of the fact that the consequences are penal.order1. we have heard the learned counsel on both sides in this petition.2. the petitioner's learned counsel submitted that this is a case in which undoubtedly, the penalty that was levied was in respect of an incident that took place prior to the introduction of sections 11ac and 11ab of the act and it is his contention that the imposition of a penalty would still be justified.3. we refrain from reproducing the various submissions canvassed before us, because the respondent's learned counsel has drawn our attention to the recent decision of supreme court reported in 2001 (128) e.l.t. 52 (s.c.), commissioner of central excise, coimbatore v. elgi equipments ltd. in a short judgment, the apex court has reiterated the well settled proposition of law that a provision of the present act cannot have retrospective application obviously in view of the fact that the consequences are penal.4. we may only add that this is a case in which the tribunal even set aside the imposition of the duty that was demanded by the department in relation to the same set of charges and once the imposition of the duty is set aside, it only stands to reason that nothing really survives in the case and the imposition of the penalty would be a total absurdity. this being the position, we see no grounds for reference to the high court.5. the civil petition fails on merits and stands dismissed. no order as to costs.

Judgment:
ORDER

1. We have heard the learned Counsel on both sides in this petition.

2. The petitioner's learned Counsel submitted that this is a case in which undoubtedly, the penalty that was levied was in respect of an incident that took place prior to the introduction of Sections 11AC and 11AB of the Act and it is his contention that the imposition of a penalty would still be justified.

3. We refrain from reproducing the various submissions canvassed before us, because the respondent's learned Counsel has drawn our attention to the recent decision of Supreme Court reported in 2001 (128) E.L.T. 52 (S.C.), Commissioner of Central Excise, Coimbatore v. Elgi Equipments Ltd. In a short judgment, the Apex Court has reiterated the well settled proposition of law that a provision of the present Act cannot have retrospective application obviously in view of the fact that the consequences are penal.

4. We may only add that this is a case in which the Tribunal even set aside the imposition of the duty that was demanded by the Department in relation to the same set of charges and once the imposition of the duty is set aside, it only stands to reason that nothing really survives in the case and the imposition of the penalty would be a total absurdity. This being the position, we see no grounds for reference to the High Court.

5. The Civil Petition fails on merits and stands dismissed. No order as to costs.