Morarji Goculdas B&W Co. Ltd. And Anr. vs Union Of India (Uoi) And Ors.
- SCC1995 Supp (3) SCC 588
Ratio decidendi
The rule this decision rests on
Where an amendment to tax rules is given retrospective effect, the Revenue's right to demand payment of duty accrued under the amended rules is limited by Section 11A of the Act to a period of six months from the date of the amendment, and demands falling outside this period cannot be enforced notwithstanding the retrospective operation of the amendment. Where the Revenue seeks to recover duty under retrospectively amended rules within the Section 11A limitation period, the Revenue must serve notice on the assessee and afford the assessee an opportunity to make representations before passing orders; if notice has already been served, the assessee must be given a reasonable time (eight weeks from the date of the order) to reply or make representations. In disputes as to whether notice under Section 11A has been served on an assessee, the Assistant Collector has authority to decide the factual question whether service occurred. Bank guarantees furnished by assessees may be realized by the Revenue to satisfy dues recovered under retrospectively amended rules within the Section 11A limitation period.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
In this group of cases common questions arise for determination. They are covered by the decision of this Court in J.K. Cotton Spg. and Wvg. Mills Ltd. v. Union of India . By the said decision this Court upheld as legal and valid the amendments made to Rules 9 and 49. It was argued that if the amendments are given retrospective effect from the date the rules were framed, i.e., from 28-2-1944, the assessees would be required to pay an enormous amount of duty. This Court appreciated the contention that if the duty has to be paid with retrospective effect from 1944 it would undoubtedly cause great hardship to the assessees but concluded that in view of Section 11A of the Act such an apprehension was misplaced. Pointing to Clause (1) of Section 11A it held that it engrafts a rule of limitation of six months and since the proviso to Section 11A is not applicable the demand though it may include even a demand for more than six months must be made within a period of six months from the date of the amendment.
2. Having considered the facts in this group of cases, in our view, in the light of the observation in J.K. Cotton Spg. and Wvg. Mills it would be appropriate to direct that in cases where notices under Section 11A of the Act have been served and the claims are raised within a period of six months from the relevant date, the Revenue would be entitled to realise the dues. In case of dispute as to whether the notice under Section 11A had been served or not the Assistant Collector will decide the issue. However, in cases where the notices have not been served as yet the Revenue would be entitled to do so within the time limit prescribed by Section 11A of the Act. In either of the aforesaid eventualities orders will not be passed by the authorities without giving an opportunity to the assessee to make representations against the proposed orders. If notices have already been served for the aforesaid purpose the assessees would have eight weeks' time from today to reply or to make a representation.
3. The bank guarantees furnished by the assessees shall be made available for realisation of dues, if any, by the Revenue.
4. The interim orders shall stand modified as above.
5. The appeals will stand disposed of accordingly with no order as to costs.
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