Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment

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			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
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			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
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			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
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			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
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			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
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		'court' => 'Madhya Pradesh',
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		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
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			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
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			'circuit' => null
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	'Judgement' => array(
		'id' => '507074',
		'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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		'pubs' => '1995(75)ELT743(MP)',
		'ratiodecidendi' => '',
		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
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- - 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. justice gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173b. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the.....

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			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
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			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
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			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
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		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
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		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
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			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
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			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
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		'counselplain' => 'A.M. Mathur, Adv.',
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		'court' => 'Madhya Pradesh',
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		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
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		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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orders.k. jha, c.j.1. the petitioner no. 1 is a company duly registered under the companies act, 1956 of which the petitioner no. 2 bharat kumar modi is the managing director. it appears from the records of the case that after the petitioners had succeeded in the high court of m.p. in misc. petition no. 1202 of 1989 regarding claim of the classification no. 4/87 by which this court held that the sample collected before the judgment dated 25th oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the central excises and salt act, 1944 (hereinafter called the act of 1944). it was decided in this petition that the classification submitted by the petitioners would remain intact. the excise department, it was further held, was free.....

Judgment:

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			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
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			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
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			'counselplain' => 'A.M. Mathur, Adv.',
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			'court' => 'Madhya Pradesh',
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			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appellant' => 'Madhu Milan Syntex Limited',
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		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
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		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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		'pubs' => '1995(75)ELT743(MP)',
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		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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ORDER

S.K. Jha, C.J.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'madhu-milan-syntex-limited-vs-union-india',
	'args' => array(
		(int) 0 => '507074',
		(int) 1 => 'madhu-milan-syntex-limited-vs-union-india'
	)
)
$title_for_layout = 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507074',
		'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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		'pubs' => '1995(75)ELT743(MP)',
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		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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1. The petitioner No. 1 is a Company duly registered under the Companies Act, 1956 of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1995(75)ELT743(MP)',
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			'respondent' => 'Union of India (Uoi)',
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		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
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		'counselplain' => 'A.M. Mathur, Adv.',
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		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
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		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '1995(75)ELT743(MP)',
		'ratiodecidendi' => '',
		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'madhu-milan-syntex-limited-vs-union-india',
	'args' => array(
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		(int) 1 => 'madhu-milan-syntex-limited-vs-union-india'
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)
$title_for_layout = 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507074',
		'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
	)
)
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$ctype = ' High Court'
$content = array(
	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the Constitution of India. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
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		'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
		'casesref' => '',
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		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
		'observations' => null,
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		'pubs' => '1995(75)ELT743(MP)',
		'ratiodecidendi' => '',
		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'madhu-milan-syntex-limited-vs-union-india',
	'args' => array(
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)
$title_for_layout = 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507074',
		'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
	)
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$content = array(
	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1995(75)ELT743(MP)',
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			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
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		'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
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		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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		'pubs' => '1995(75)ELT743(MP)',
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		'sub' => 'Excise',
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	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'madhu-milan-syntex-limited-vs-union-india',
	'args' => array(
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)
$title_for_layout = 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507074',
		'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
	)
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$content = array(
	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '1995(75)ELT743(MP)',
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			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
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		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
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		'counselplain' => 'A.M. Mathur, Adv.',
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		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '1995(75)ELT743(MP)',
		'ratiodecidendi' => '',
		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the Constitution of India. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'madhu-milan-syntex-limited-vs-union-india',
	'args' => array(
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$title_for_layout = 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507074',
		'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
	)
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$content = array(
	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
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		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
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		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
		'observations' => null,
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		'prhistory' => '',
		'pubs' => '1995(75)ELT743(MP)',
		'ratiodecidendi' => '',
		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
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	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'madhu-milan-syntex-limited-vs-union-india',
	'args' => array(
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$title_for_layout = 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '507074',
		'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
		'casesref' => '',
		'citingcases' => '',
		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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		'respondent' => 'Union of India (Uoi)',
		'sub' => 'Excise',
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		'circuit' => null
	)
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$content = array(
	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
	(int) 12 => '<p>'
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The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.

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	'title_for_layout' => 'Madhu Milan Syntex Limited Vs Union of India Uoi - Citation 507074 - Court Judgment | ',
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			'id' => '507074',
			'acts' => '<a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a>; <a href="/act/51721/central-excise-act-1944-complete-act">Central Excise Act, 1944</a> - Sections 11A; <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B',
			'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
			'appellant' => 'Madhu Milan Syntex Limited',
			'authreffered' => '',
			'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
			'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
			'caseanalysis' => null,
			'casesref' => '',
			'citingcases' => '',
			'counselplain' => 'A.M. Mathur, Adv.',
			'counseldef' => 'J.P. Gupta, Adv.',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1993-11-20',
			'deposition' => 'Petition allowed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'S.K. Jha, C.J.',
			'judgement' => 'ORDER<p style="text-align: justify;">S.K. Jha, C.J.</p><p style="text-align: justify;">1. The petitioner No. 1 is a Company duly registered under the <a href="/act/51006/companies-act-1956-complete-act">Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p style="text-align: justify;">2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p style="text-align: justify;">3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p style="text-align: justify;">4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p style="text-align: justify;">5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p style="text-align: justify;">6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p style="text-align: justify;">7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p style="text-align: justify;">8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p style="text-align: justify;">9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p style="text-align: justify;">10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p style="text-align: justify;">The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '1995(75)ELT743(MP)',
			'ratiodecidendi' => '',
			'respondent' => 'Union of India (Uoi)',
			'sub' => 'Excise',
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			'circuit' => null
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		'appealno' => 'Review Petition M.C.C. No. 266 of 1992',
		'appellant' => 'Madhu Milan Syntex Limited',
		'authreffered' => '',
		'casename' => 'Madhu Milan Syntex Limited Vs. Union of India (Uoi)',
		'casenote' => ' -  -  2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. and instead of hemming in, and hedging with qualifying clauses like 'do this',do that',and 'do the other',the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any.',
		'caseanalysis' => null,
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		'counselplain' => 'A.M. Mathur, Adv.',
		'counseldef' => 'J.P. Gupta, Adv.',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1993-11-20',
		'deposition' => 'Petition allowed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'S.K. Jha, C.J.',
		'judgement' => 'ORDER<p>S.K. Jha, C.J.</p><p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.</p><p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.</p><p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.</p><p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.</p><p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company</p><p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.</p><p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.</p><p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.</p><p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.</p><p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.</p><p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p></p><p>',
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	(int) 0 => 'ORDER<p>S.K. Jha, C.J.',
	(int) 1 => '<p>1. The petitioner No. 1 is a Company duly registered under the <a>Companies Act, 1956</a> of which the petitioner No. 2 Bharat Kumar Modi is the Managing Director. It appears from the records of the case that after the petitioners had succeeded in the High Court of M.P. in Misc. Petition No. 1202 of 1989 regarding claim of the classification No. 4/87 by which this Court held that the sample collected before the judgment dated 25th Oct., 1989 could not be used against the petitioner for changing of the classification of the excisable goods under the Central Excises and Salt Act, 1944 (hereinafter called the Act of 1944). It was decided in this petition that the classification submitted by the petitioners would remain intact. The Excise Department, it was further held, was free to proceed against the classification submitted by the petitioners if they felt necessary after taking fresh sample after 25-10-1989. This court further held that it was liable to be set aside and accordingly quashed and consequently every action of the respondents in connection with changing of the classification list submitted by the petitioners upto that date i.e. 16-6-1988 was quashed. It was further held that the classification submitted by the petitioners would remain intact to date was also to govern in future. It was, however, open to the respondents to proceed against the petitioners' classification list de novo and afresh by taking a sample evidence and liberty to examine and cross-examine the Laboratory men and the concerned Excise Officer/officials, if necessary.',
	(int) 2 => '<p>2. According to the aforesaid judgment of this Court in M.P. No. 1202 of 1989, dated 25th Oct., 1989, the order issued by the Assistant Collector, Ujjain, respondent No. 2, in the matter of change in classification list was quashed and the classification list submitted by the petitioners was declared valid and intact on the date of judgment as well as in future also. While the matter was taken in appeal by the Department to the Supreme Court, it seems another show cause notice was issued by the Assistant Collector, Central Excise, although no order of stay was passed by the Supreme Court. This second show cause notice was challenged as arbitrary and irrelevant. It was accordingly prayed that the show cause notice dated 13th March 1990 issued by the Assistant Collector, Central Excise, Ujjain be declared as invalid and be quashed. This became the subject matter of another writ petition being Misc. Petition No. 512 of 1990. While the aforesaid writ petition M.P. No. 512 of 1990 was pending in this Court, the petitioners and the respondent Union of India, Ministry of Finance in the Department of Excise, got the writ petition disposed of by a consent order on 25-4-1992.',
	(int) 3 => '<p>3. The petitioners, however, soon came to realise that by the aforesaid consent order dt. 25-4-1992, the petitioners were deprived from taking the plea of limitation at any stage of the dispute which the Legislature had accorded to the public at large. The petitioners were deprived of that general protection and in fact administering the law as compared to the other manufacturers in India thereby violating the equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It was further submitted by the petitioners that the provisions of Section 11A of the Act, 1944 permit in general the raising of demand only within a period of six months and beyond that the Legislature had not permitted the recoveries in any circumstances, whatsoever. Thus, by according sanction to such a consent order, this Court had committed an error apparent on the face of the record by shutting out the petitioners from raising the plea of limitation whereas others were so allowed to plead. It was further pointed out and submitted by the petitioners that the petitioner No. 1 had to its credit a duly approved classification list and that would remain effective and operative till such time as it had not been modified by following the procedure prescribed under the law. Raising of a dispute as to the interpretation and application of a particular tariff entry is a substantive right of the petitioners as the question of demand emerged from that. Therefore, unless the dispute as to the classification was first finally decided, no question of demand could arise. It was further submitted and pointed out that under the garb of compromise by a consent order, the statutory procedural protection could not be taken away and this too was an error apparent on the face of the record. Furthermore, the direction given pertaining to the execution of bond was not in accordance with law for the reason that the bond could be executed only if the requirements of Rule 9B were followed. But in the present case, applicability of Rule 9B has been excluded and since the petitioners were clearing their goods under the approved classification list, the approved classification list could be changed prospectively and not retrospectively.',
	(int) 4 => '<p>4. As a matter of fact, the consent order when spoke of - 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authorities in accordance with law giving a show cause notice' was sufficient direction in the facts and circumstances of the case, but any further hedging in of this direction affects equally the plea of limitation and the result of the approved classification as from a particular date, neither could the classification list be altered except in accordance with law nor could any further hedging in or hemming the aforesaid positive direction in any manner be countenanced excepting by observing due formalities of law. It was, therefore, submitted and argued that any further hedging in or qualifying clause in the consent order apart from the recognition of the amended classification lists from time to time, which, if changed, could be finalised only after giving a due show cause notice to the petitioners, frustrated the very object of the aforesaid direction contained in the consent order.',
	(int) 5 => '<p>5. The petitioners, therefore, submitted that they have been put in a most uneviable position vis-a-vis other manufacturers of the same excisable commodities as they would not be in a position to recover from the market though the company would be liable to pay by way of additional liability for reason that the goods manufactured already stood sold and the sale contract concluded. The result would be that it would not only be substantially crippling the Company's working but financial constraints would so grip the company adversely, that would result in a [closure] of a mill which would be detrimental not only to the share-holders but also to the labourers, only more so because the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery on the basis of enhanced duty was not possible. The petitioners also submitted before this Court that they had reluctantly expressed this apprehension before this Court that the authorities would not accord them due opportunity of hearing which proved to be correct ultimately. It was accordingly submitted that the so-called consent order was merely a device or the contrivance to get over the temporary difficulty faced by the Department in its show cause notice which was more in the nature of art order pre-judging and pre-determining the authority of the Assistant Collector, Central Excise, who, it was alleged, had already made up his mind to impose the demand, come what may. On these facts a petition was filed that in passing the consent order, this Court had committed an error apparent on the face of the record which, if not rectified, would ultimately end in the ruination and financial crippling of the Company and also to the discomfiture of those employed by the Company',
	(int) 6 => '<p>6. Mr. Justice Gyani held that these are materials good enough for reviewing the consent order dated 25-4-1992, whereas Mr. Justice S.D. Jha held that it would not be an error apparent on the face of the record as it needed some arguments for the Court to come to a conclusion that the consent order although having received approval of this Court did not fall within the parameters of a review petition.',
	(int) 7 => '<p>7. With great respect to S.D. Jha, J., it would not be presumptuous on my part to hold that it is not clear from the consent order as to from where S.D. Jha, J. took notice of the five bonds executed for the periods 25-7-1991 to 31-8-1991, 1-9-1991 to 30-9-1991, 1-10-1991 to 31-10-1991, 1-11-1991 to 30-11-1991,1-12-1991 to 31-12-1991 and on the basis of these bonds, he has come to a conclusion that the clearances had been made on approval of the classification from time to time, which was well within the scheme of 173B. These dates could be taken only if something is being sought to be seen in the review petition which is not to be found there. There seems to be absolutely no justification of the matter being mixed up in accordance with what is sought to be argued today by the respondents against the petitioners' case. If these were facts, certainly it could not be said that there was an error apparent on the face of the record; but if these facts have been brought in from sources other [than] what the parties' respective case is with regard to the infringement of Articles 14 and 19(1)(g) of the Constitution, the further hedging in of the classification list by things, which were not germane for the purpose at hand, with great respect, it was mixing one aspect of the case with the other aspects which are being sought to be brought in by the respondents. The order of S.D. Jha, J. therefore is so off the mark that it cannot be said with any amount of certainty that the matter has been decided in isolation having regard to the nature of the grievances made by the petitioners with regard to the Assistant Collector, Central Excise having already made up his mind to do away with what was sought to be challenged as an arbitrary act of the Assistant Collector, Central Excise in re-opening the matter having lost in the first bout wherein this Court had granted full reliefs to the petitioners. Such a jumbling of relevant and irrelevant facts by mixing up the arguments now being put forth on behalf of the respondents leads us nowhere.',
	(int) 8 => '<p>8. The only point, therefore, that remains to be considered is as to whether there is an error apparent on the face of the record in this Court's giving its seal of approval to the fact that the petitioners could not be permitted to raise the plea of limitation at any stage and as to whether such a direction was an infringement of equality clauses of Articles 14 and 19(1)(g) of the <a>Constitution of India</a>. It further needs to be seen as to whether the petitioners could be shut out for all times to come from raising a question of limitation under Section 11A of the Act of 1944; and that too, in the context of what has been said with regard to the amended classification already quoted hereinbefore - to repeat, 'the amended classification list dated 29-7-1991/5-8-1991 and 3-2-1992 shall be finalised by the Central Excise authority in accordance with law giving a show cause notice...' Having once so given a positive direction, it could not be proper for the petitioners to pray that any direction contrary to or in supersession of such a positive direction was not only against the public policy but also singled out the petitioners putting them in an absolutely uneviable position in so far as the other companies dealing in such excisable commodities were concerned. What also deserves special notice is the fact that the goods manufactured subsequent to 25-7-1991 had already reached the hands of the consumers and now any recovery from the petitioners was not possible.',
	(int) 9 => '<p>9. In the view that I have taken of the matter, it is not necessary to put to test any of the reasonings of V.D. Gyani, J. Suffice it to say that only facts as stated above leading to the writ petition and the disposal thereof in terms of the consent order in M.P. No. 512 of 1990, the question of approbation and reprobation, suspension of plea of limitation in cases of recoverable dues and non-recoverable dues - all such questions pale into insignificance. In such circumstances, it can safely be concluded that having given a positive direction with regard to the amended classification lists from time to time, any further whittling down of the same amounts to piling unreason upon technicality. There is absolutely no question of being very pedantic about it. In other words, broadly speaking, the practical effect of the judgment of V.D. Gyani, J. is agreed with by me.',
	(int) 10 => '<p>10. In the result, without quibbling about words, it can safely be said to be a case of an error apparent on the face of the record; and instead of hemming in, and hedging with qualifying clauses like 'do this', 'do that', and 'do the other', the Central Excise authorities, respondents, may take recourse de novo, if they are so advised, to have the matter re-agitated after affording the petitioners full opportunity to meet out a case against them if any. It goes without saying that the approved classifications remain approved and the petitioners are allowed to take the plea of limitation; and if the Department wants to change the classification, they can do it only after giving a proper show cause notice in accordance with law and that too prospectively and not retrospectively. The power under the statute cannot be taken away either collaterally or incidentally.',
	(int) 11 => '<p>The review petition is, therefore, allowed and the petitioners could only if any such change is made prospectively go on clearing the goods under the classification list approved up to date. In the circumstances of the case, however, parties are directed to bear their own costs.<p>',
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Subject	Excise
Court	Madhya Pradesh High Court
Decided On	Nov-20-1993
Case Number	Review Petition M.C.C. No. 266 of 1992
Judge	S.K. Jha, C.J.
Reported in	1995(75)ELT743(MP)
Acts	Companies Act, 1956; Central Excise Act, 1944 - Sections 11A; Constitution of India - Articles 14 and 19(1); Central Excise Rules, 1944 - Rule 9B
Appellant	Madhu Milan Syntex Limited
Respondent	Union of India (Uoi)
Appellant Advocate	A.M. Mathur, Adv.
Respondent Advocate	J.P. Gupta, Adv.
Disposition	Petition allowed

Madhu Milan Syntex Limited Vs. Union of India (Uoi) - Court Judgment