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PETITIONER: COLLECTOR OF CENTRAL EXCISE, JAIPURC

       Vs.

RESPONDENT: M/S RAGHUVAR (INDIA) LTD.

DATE OF JUDGMENT:       11/05/2000

BENCH: G.B.Pattanaik, Doraiswamy, S.N.Variam

JUDGMENT:

Raju, J.

     This  Reference  under  Section  35H  of  the  Central Excises  and Salt Act 1944, (hereinafter referred to as ‘the Act)  came  to  be  directly made at the  instance  of  the Revenue  to  this  Court  by the Customs,  Excise  and  Gold (Control)  Appellate  Tribunal,  North  Regional  Bench,  on account  of conflict of views expressed in the decisions  of the  High Court of Gujarat reported in Torrent  Laboratories Pvt.   Ltd.  vs Union of India [1991 (55) ELT 25], and  that of  the Karnataka High Court reported in Thungabhadra  Steel Products  Ltd.   vs Supdt.  of Central Excise [1991(56)  ELT 340].

     The  factual  details  necessary   to  understand  and appreciate  the  disputes  between parties may  be  noticed, before  adverting  to the area and nature of  dispute.   The respondent  is  a  holder  of  licence in  Form  L-4  and  a manufacturer  of  vegetable products falling  under  Chapter 15-04 of the Central Excise Tariff, at the relevant point of time.  The respondent, admittedly, filed a declaration under Rule  57G  of the Central Excises Rules, 1944,  (hereinafter referred  to  as the Rules), on 10.3.1987 for adoption  of MODVAT  Credit in respect of certain inputs used by them  in the  manufacture  of  vegetable  products  and  consequently became  entitled  to  avail of the duty credit only  on  and after  10.3.87.  But the fact is that the respondent availed of  the credit facilities in question even from 1.3.87  and, therefore,  the  authorities  were of the  view  that  wrong credit  had  been availed of to the tune of Rs.62,710.61  on the inputs received and utilised from 1.3.87 to 10.3.87.  On being   pointed  out  though  they   debited  a  credit   of Rs.20,828.93  relating to furnace oil and filter cloth,  not covered   under   the   MODVAT   Scheme,  the   balance   of Rs.41,872.68,  in respect of other outputs was not  debited, in  spite  of the communication dated 10.8.87 and  reminders dated  29.12.87  and 1.2.88 for the reversal of the  credit, issued by the Range Officer.

     As  against  the  communication   dated  1.2.88,   the respondent  filed  an appeal before the Collector  (appeals) who  by  his  order dated 21.12.89 set aside  the  same  and remitted   the  matter  to   the  Assistant  Collector,  the competent  Authority, for the purposes of Rule 57G.  In  the meantime,  the Assistant Collector, Central Excise,  Jaipur, issued a show cause notice as to why the sum of Rs.41,872.68

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should  not  be recovered from the respondent under  Section 11A  of  the  Act read with Rule 57-I of the  Rules.   After considering the submissions of the respondent, the Assistant Collector by his order dated 3.8.90 directed the reversal of the  credit of Rs.41,872.68 wrongly taken, in their  RG-23A. The said Authority held that filing of a declaration being a statutory  necessity  and  condition precedent to  avail  of credit  under the scheme, the respondent was not eligible to take  credit  for  the  period prior to the  filing  of  the declaration.   As  a matter of fact, the respondent did  not appear to have contested the case on merit but only raised a plea  of limitation that notice has not been issued within a period  of six months, as envisaged under Section 11A.   The plea  based  on limitation came to be also rejected  on  the ground  that the Range Officer issued a letter dated 10.8.87 calling  upon  the  respondent to debit the  credit  wrongly taken  and this was well within the six months period.  This was  challenged on appeal and the Collector (appeals) by his order  dated 12.12.91 rejected the appeal repelling the plea of  limitation.   The matter was further pursued before  the Tribunal  by way of an appeal, and by an order dated 3.2.94, it  was  held  that  the show cause  notice  issued  by  the Assistant  Collector  on 5.8.88 was beyond a period  of  six months  and  that  even  for demanding  reversal  of  credit already  taken, in exercise of Rule 57-I, the provisions  of Section 11A would get attracted necessitating the raising of the  demand within six months.  Thereupon, the Revenue moved the  application for Reference and that is how the reference came to be made to this Court.

     Mr.   T.L.V.   Iyer,  learned senior counsel  for  the Revenue,  while  placing strong reliance upon  the  decision reported  in  1991  (55)  ELT 25 (supra)  and  the  relevant provisions   of  the  MODVAT   Scheme,  contended  that  the provisions  of  Section  11A of the Act had  no  application whatsoever  to  the  case on hand and that being  a  special provision  with  self contained machinery to  enforce  them, reference to a general provision like Section 11A of the Act is unwarranted and consequently, the orders of the Assistant Collector   and  the  Collector   (appeals)  are  quite   in accordance with law and did not call for any interference in the hands of the Tribunal.

     Per  contra, Mr.  C.  Harishankar, learned counsel for the  respondent, placed reliance upon a catena of  decisions reported in 1991 (56) ELT 340 (supra);  Advani Oerlikon Ltd. vs  Assistant Collector of Central Excise [1993 (63) ELT 427 (Mad.   High Court)];  Fabril Gasosa vs Union of India [1997 (96) ELT 241 (Bom.  High Court)];  Collr.  of C.  Ex., Patna vs  Tata Engineering & Locomotive Co.  Ltd.  [1999 (111) ELT 9  (Pat.  High Court)];  J.K.  Spinning & Weaving Mills Ltd. &  Another  vs  Union of India & Others [1987 (32)  ELT  234 (SC)]  and  Govt.  of India vs Citedal Fine  Pharmaceuticals Madras  &  Others  Etc.   Etc.  [1989  (3)  SCR  465];   and vehemently  contended that the impugned proceedings  involve recovery  and  consequently a demand of an amount not  paid, Section  11A of the Act would necessarily get attracted and, therefore,  the  view  taken  by   the  other  High  Courts, different  from  the  one taken by the Gujarat  High  Court, would more accord with law and, therefore, the Reference may be  answered  against the Revenue.  It was  also  submitted, once  the credit taken has also been utilised by  adjustment against payment of excise duty on articles manufactured, the question would always be one of recovery of duty or a demand for  payment.  In substance the plea of the learned  counsel

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is  that the stage for reversal of the credit was over  with actual adjustment of the credit taken.

     In  the decision reported in Torrent Laboratories Pvt. Ltd.   case  (supra), a Division Bench of the  Gujarat  High Court  while  repelling  a plea that Rule 57-I as  it  stood prior  to  amendment  should  be read  in  conjunction  with Section  11A of the Act by reading the period of  limitation in  Section  11A  into Rule 57-I by  necessary  implication, observed  as that the provisions of the above Rule has to be in  conformity  with  the provisions of Section 37  and  not Section  11A since Section 11A was already in existence from 17.11.80  and Rule 57-I brought into force on 1.3.86 had its own  special  scheme and purpose underlying the same (b)  it would  be  over simplification to say that Rule 57-I, as  it stood  prior  to amendment is nothing but a  provision  with regard  to  recovery of duty as it is in the case  of  short payment,  short  levy of duty or under assessment, (c)  that the  Modvat  Scheme has its own special  and  distinguishing features and Rule 57- I which is part of such special scheme stands  on its own unlike even provisions of proforma credit contained  in Rule 56A and (d) whenever a general  provision is  operation  and  knowing well its  existence,  a  special provision is made, it has to be presumed that the law makers did not intend the general provision to apply to the special cases culled out.

     In  Thungabhadra Steel Products Ltd.  case (supra),  a learned Single Judge of the Karnataka High Court opined that the  restriction of time limit for exercise of powers  under Section  11A  should govern the cases envisaged  under  Rule 57-I  and,  therefore, Rule 57-I, as it stood prior  to  its amendment,  should  receive  the same interpretation  as  it should receive after its amendment with effect from 6.10.88, by  assuming  that  the  amendment introduced  to  the  Rule indicated the intention of the legislature to amend the Rule to  bring  it  in conformity with the spirit  and  scope  of Section 11A.  There is no rhyme or reasonable basis for such an assumption.  The Division Bench of the Madras High Court, which  decided  the case in Advani Oerlikon  Ltd.   (supra), expressed  the  view that not withstanding the  omission  in Rule  57-I prior to its amendment, to provide for the  issue of  a  notice, the obligation to issue such notice  followed from  the  principles of natural justice as well as  Section 11A  of the Act and, therefore, the period of limitation  in Section  11A  will  be attracted to exercise  the  power  of demand  for  reversing  the  credit wrongly  availed  of  or utilised  under Modvat Scheme.  There is no justification in law  to  equate the notice expected to be issued to  satisfy the  principles of natural justice with the one ordained  by the  statutory  provision to be issued within  a  stipulated time  for one or the other of the purposes specified in such a provision, and that in order to suffer a limitation on the very  exercise of the power.  A Division Bench of the Bombay High  Court  also  held in the decision reported  in  Fabril Gasosas  case  (supra) that the power to frame rules  since was  derived  from  the Act itself and the rules  owe  their existence  to the Act, as long as there is any provision  in the  Act, even if the rules are silent on that aspect of the matter,  it will have to be presumed that the provisions  in the  Act  will govern the interpretation of the  rules  and, therefore,  the limitation in the Act will apply to cases of demand/recovery  under  Rule  57-J,  as it  stood  prior  to amendment, particularly when there is nothing in Section 11A which  renders  it inapplicable to cases provided under  the

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Modvat  Scheme.  This reasoning overlooks the position  that the  rule  in question was not enacted either under  Section 11A or to carry out the purposes of Section 11A but actually in  exercise  of  the rule-making power  under  Section  37, particularly  sub-section  (2) (xvia).  A Division Bench  of the Patna High Court, in the decision reported in 1999 (111) ELT  9  (supra), while following the view expressed  by  the Madras,  Karnataka and Bombay High Courts disagreed with the view  of  the  Gujarat  High Court and held  that  when  the limitation is provided for in the parent Act, it need not be provided  for  in  the subordinate  legislation,  viz.,  the rules,  and  therefore the limitation prescribed in  Section 11A  has to be read into Rule 57-I, unamended also.  It  was also  observed therein that the maxim ‘Generalia specialibus non  derogant applies only to same legislative  instruments and  not when one instrument is an Act of Parliament and the other   Rule  framed  by   the  Central  Government.    This differentiation  has no relevance for the application of the maxim noticed above and what is relevant would be the scope, extent and area of the operation of the relevant provisions, only.

     The decision of this Court in J.K.  Spinning & Weaving Mills Ltd case (supra) is not directly on point to the issue raised  before  us though may provide a clue to resolve  the issue.   That  was a case wherein this Court  was  concerned with  the question as to whether in case of a  retrospective amendment   creating  liability  to   duty,  the  levy   and collection  could  be made dehors the period  of  limitation stipulated  in  Section 11A, particularly in the absence  of any  non obstante clause to override Section 11A of the Act. This  case  really  dealt with the  question  of  limitation relating to the levy, demand and recovery of duty in respect of deemed removal of certain goods the moment they come into existence   on   production/manufacture    introduced   with retrospective effect and, therefore, really and in substance concerned  the imposition and payment of excise duty.  Since the  Rules considered in that was only made by virtue of the rule-making  power  on 20.2.82 and the same was also,  by  a statutory  provision  brought into force with  retrospective effect  from  28.2.1944,  the demand and  recovery  for  the retrospective period would actually partake the character of an  exercise  for  collecting duty not levied  or  not  paid envisaged  under  Section 11A of the Act.  The  decision  in 1989 (3) SCR 465 (supra) dealt with a question as to whether the  mere  absence of any period of limitation  enables  the authority   concerned   to  exercise   its  powers  at   any point/length  of time without any time limit whatsoever  and it  was held that even in the absence of any specific period of  limitation,  powers conferred have to be  exercised  and action  thereof  taken  within a  reasonable  period.   This decision  cannot  be of any help to the respondent  in  this case because, neither is there any challenge to Rule 57-I on such ground of absence of limitation nor the period involved could  be  held  to  be so unreasonable  on  the  facts  and circumstances  of the case where factually an earlier notice has  been issued within even by that time by the  Department though  not by the proper officer and this only necessitated a  fresh  action,  the  validity of which is  sought  to  be challenged  and  despite  all these, no  unreasonable  delay could at all be said to have resulted.

     Section 11A (1) of the Act reads as follows:

     Section  11A.   Recovery of duties not levied or  not

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paid  or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a  Central  Excise Officer may, within six months  from  the relevant  date,  serve notice on the person chargeable  with the duty which has not been levied or paid or which has been short-levied  or  short-paid  or  to  whom  the  refund  has erroneously  been  made, requiring him to show cause why  he should not pay the amount specified in the notice:

     Provided  that  where any duty of excise has not  been levied  or  paid or has been short-levied or short  paid  or erroneously  refunded  by reason of fraud, collusion or  any wilful   mis-statement   or  suppression    of   facts,   or contravention of any of the provisions of this Act or of the rules  made thereunder with intent to evade payment of duty, by  such  person  or  his  agent,  the  provisions  of  this sub-section  shall  have effect, as if, for the  words  six months, the words five years were substituted.

     Explanation.-  Where  the  service of  the  notice  is stayed by an order of a court, the period of such stay shall be  excluded in computing the aforesaid period of six months or five years, as the case may be.

     Rule  57-I, as it stood prior to amendment on 6.10.88, is  as  follows:   Rule 57-I - Recovery of  credit  wrongly availed of or utilised in an irregular manner.

     (1)  If  the  credit of duty paid on inputs  has  been taken  wrongly, the credit so taken may be disallowed by the proper  officer  and  the  amount  so  disallowed  shall  be adjusted  in  the  credit   account  or  the  amount-current maintained  by  the manufacturer or if such adjustments  are not  possible  for  any reason, by cash  recovery  from  the manufacturer of the said goods:

     Provided   that  such  manufacturer   may  make   such adjustments  on  his  own  in  the  credit  account  or  the account-current  maintained  by him under intimation to  the proper officer.

     (2)  If any inputs in respect of which credit has been taken are not fully accounted for as having been disposed of in  the  manner specified in this section  the  manufacturer shall  upon  a  written demand being made by  the  Assistant Collector  of  Central excise pay the duty leviable on  such inputs within 10 days of the notice of demand.

     After  amendments  effected on 6.10.88,  the  relevant portion of the Rule stands as follows:

     Rule  57-I - Recovery of credit wrongly availed of or utilised in an irregular manner:

     (1)  (i) Where credit of duty paid on inputs has  been taken  on account of an error, omission or  misconstruction, on the part of an officer or a manufacturer, or an assessee, the  proper officer may, within six months from the date  of such  credit,  serve  notice  on  the  manufacturer  or  the assessee  who  has taken such credit requiring him  to  show cause  why  he should not be disallowed to such  credit  and where  the credit has already been utilised, why the  amount equivalent to such credit should not be recovered from him.

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     Provided  that  where  such credit has been  taken  on account of wilful mis-statement, collusion or suppression of facts  on  the  part of a manufacturer or an  assessee,  the provisions  of  this clause shall have effect as if for  the words six months, the words five years were substituted.

     (ii)  The  proper  officer,   after  considering   the representation,  if  any,  made by the manufacturer  or  the assessee  on  whom notice is served under clause (I),  shall determine  the  amount of such credit to be disallowed  (not being  in  excess of the amount specified in the show  cause notice)  and  thereupon such manufacturer or assessee  shall pay  the amount equivalent to the credit disallowed, if  the credit  has  been utilised, or shall not utilise the  credit thus disallowed.

     (2)  If any inputs in respect of which credit has been taken are not fully accounted for as having been disposed of in  the  manner specified in this section  the  manufacturer shall  upon  a  written demand being made by  the  Assistant Collector  of  Central Excise pay the duty leviable on  such inputs within 10 days of the notice of demand.

     The fact that the respondent-manufacturer did file the mandatorily required declaration under Rule 57G of the Rules only  on  10.3.87  and not before and that,  therefore,  the respondent  was not entitled to avail of the benefits  under Modvat  Scheme for the period between 1.3.87 and 10.3.87  is not at all in dispute before us.  The only question is as to how  to  set right the wrong availment of duty made  by  the respondent and whether prior to 6.10.88 as Rule 57-I existed then,  it  has  to be set right only by having  recourse  to Section  11A  and by issue of any notice within a period  of six  months  as  envisaged  under Section 11A  of  the  Act. Similarly,  there  is  no challenge before us  that  in  the absence of any specific period of limitation provided for in Rule  57-I,  the Rule is arbitrary or  unconstitutional,  on that account.

     Any  law  or  stipulation   prescribing  a  period  of limitation  to  do or not to do a thing after the expiry  of period  so  stipulated has the consequence of  creation  and destruction  of rights and, therefore, must be  specifically enacted  and prescribed therefor.  It is not for the  Courts to  import any specific period of limitation by implication, where  there  is really none, though Courts may always  hold when any such exercise of power had the effect of disturbing rights  of  a citizen that it should be exercised  within  a reasonable  period.  Section 11A is not an omnibus provision which  provides any period of limitation for all or any  and every  kind of action to be taken under the Act or the Rules but will be attracted only to cases where any duty of excise has  not  been  levied or paid or has been  short-levied  or short-paid  or  erroneously  refunded.    The  section  also provides for an extended period on certain contingencies and situations.   The situation on hand and the one which has to be  dealt with under Rule 57-I, as it stood unamended,  does not  fall under any one of those contingencies provided  for in  Section  11A of the Act.  Part AA of the Rules in  which Rule  57-I  is found included provides a special scheme  for earning  credit  and  adjustment of duty paid  on  excisable goods  used as inputs in the manufacture of what is referred to  as ‘final product, and thereby enable the  manufacturer

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to  utilise the credit so allowed towards payment of duty of excise  leviable  on the final products, in the  manner  and subject to the terms and conditions stipulated therein.  The manufacturer,  in this case while removing the final product manufactured  has adjusted against payment of excise duty on such final product a part or portion of the credit earned by him under the special scheme and what is sought to be really and in substance done is to inform the manufacturer that the adjustment  he purported to have made was with an amount not legitimately or factually earned by or due to him.  For this purpose,  the irregularity and impropriety committed by  the manufacturer  in  maintaining the accounts and the error  in the  calculation  of the credit said to have been earned  by him is pointed out, and the manufacturer is only directed to reverse  the  credit  so wrongly and  undeservedly  made  by readjustment  and  if  need  be,   to  recover  the   amount equivalent  to such credit wrongly availed of and disallowed by  the  proper officer.  The recovery of credit availed  of and  utilised in utter breach of the faith and mutual  trust and confidence which is the raison detre for the proper and successful  working  of  the Modvat scheme and that  too  in gross violation of the mandatory requirements necessarily to be  fulfilled  before  ever  claiming or  availing  of  such benefits  cannot  be said to be the same as the  demand  for payment  to  be  made under Section 11A of the  Act  of  any excise  duty not levied or paid or has been short-levied  or short-paid.   They  fall  into two  distinct  and  different categories  altogether  with  basic as well  as  substantial differences  to  distinguish  them from each  other.   As  a matter  of  fact,  Rule 57-I envisages disallowance  of  the credit and consequential adjustment in the credit account or the  amount-current  maintained by the manufacturer  and  if only  any  such  adjustments  are not  possible  proceed  to recover  the  amount  equivalent  to  the  credit  illegally availed  of.   Consequently, the situation postulated to  be dealt  with under Rule 57-I cannot be said to involve a case of  manufacture  and  removal  of  excisable  goods  without subjecting  such  goods  to levy or payment of  the  various nature  and  category  enumerated in  Section  11A.   Hence, Section  11A  of  the  Act on its own  terms  will  have  no application or operation to cases covered under Rule 57-I of the Rules.

     The  above conclusion of ours is itself sufficient  to answer the question in favour of the Revenue and against the manufacturer,  even dehors the applicability or otherwise of the  principle  of construction - Generalia specialibus  non derogant,  since  they do not operate on the same  field  or cover  the same area, to be reconciled in order to avert any clash  or  inconsistency.  That apart, even if it is  to  be assumed  that  they  relate to one and the  same  nature  of demand  from the manufacturer of any amount due from him  to the  State,  the  provisions contained in  Section  11A  are general  in  nature  and application and the  Modvat  scheme being  a  specific  and   special  beneficial  scheme,  with self-contained   procedure,  manner  and   method  for   its implementation,  providing for its own remedies to undo  any mischief committed by the manufacturer in abuse thereof, the provisions of the said special scheme alone will govern such a   situation  and  there  is  no  scope  for  reading   the stipulations  contained in a general provision like  Section 11A  into the provision of the rules in question which alone will  govern  in its entirety the enforcement of the  Modvat Scheme.   The  question  as to the relative  nature  of  the provisions  general  or  special has to  be  determined,  as

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observed  earlier, with reference to the area and extent  of their  application either generally in all circumstances  or specially  in  particular situations and not on  the  ground that  one is a mere provision in the Act and the other is  a provision  in  the Rule.  We are not also concerned in  this case  with any challenge to the inconsistency of a rule with any statutory provision in the Act.

     On  going through very carefully the decisions of  the Gujarat  High  Court on the one hand and those of the  other High  Courts  noticed  above, we are of the  view  that  the Gujarat  view  is more reasonable and quite accord with  the purpose,  object,  aim and successful implementation of  the Modvat  Scheme  and  the fallacy in the  line  of  reasoning adopted  by the other decisions lie in their assumption that the  period  of limitation prescribed in Section 11A of  the Act  has universal application to govern every act or course of  action  envisaged under the Act and the Rules,  wherever there  is  no  limitation  stipulated to  the  contra.   The restricted  operation of the provisions contained in Section 11A is found inherently in-built due to the specification of the  various categories of cases enumerated in the provision itself  to be dealt with.  The Scheme of Modvat,  introduced for  the  first rime in 1986, did not consider it  necessary either  to have its own period of limitation in-built in the Rules  nor  has  the  enforcement of the  scheme  been  made subject  to Section 11A of the Act.  The fact that even when an  amendment  was  made on 6.10.88, it was  prospective  in nature  and  the amendment was not given  any  retrospective effect  indicates  the  intention   unmistakably  that   the subsequent   amendment   should  have  no  impact   on   the construction  to  be placed on the provisions as it  existed before such amendment.  The further fact that the amendments to Rule 57-I had its own pattern of limitation and method of computation  of such limitation also would militate  against the  manner of construction adopted by the decisions of  the High Courts other than that of the Gujarat High Court.

     The  further submission of the learned counsel for the respondent  that  whatever may be right or otherwise of  the proper  officer  to order for reversal of the credit  earned before  it  was actually utilised or adjusted, on and  after actual utilisation by adjustment, at any rate no question of the  reversal  of  the credit would arise, proceeds  upon  a misconception  of the fundamentals underlying the working of the  Modvat  Scheme and the powers of the Proper Officer  to set   right  irregularities,  if   any,  committed  by   the Manufacturer  in availing of the same.  The utilisation  and adjustment  depends  upon  proper and valid earning  of  the credit  strictly in accordance with the terms and conditions of  the  Scheme  and while making unilateral credit  in  the course of maintenance of the accounts in the prescribed form and  manner,  a  gross  illegality  has  been  committed  in crediting   something  to  which  a  manufacturer  was   not legitimately  entitled  to, not only the Proper Officer  has the  right, power and authority to direct reversal of credit but  on such direction, the extent and quantum of credit and consequent  adjustment  also  would   get  necessarily   and automatically  readjusted  making  it obligatory  under  the Scheme  for the manufacturer, as long as the credit  account or  the  amount-current  is maintained by  the  manufacturer under  the  Scheme, to reverse the credit and set right  the accounts.   Lawful earning of a credit is a sine qua non for proper and valid utilisation of the same and once the credit side gets diminished the very basis of adjustment disappears

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ipso  facto.  By adopting a defiant attitude in the  matter, the  manufacturer  cannot take advantage of his  misdeed  to gain  an advantage by contending that the action to be taken involve  only  a recovery of duty and, therefore, should  be within  the period of limitation provided under Section  11A of  the  Act.  Even when the recovery is ordered, as a  last resort,  as envisaged under Rule 57-I, as observed  earlier, it  is  only recovery of the money value equivalent  to  the unlawful credit availed of and adjusted under the Scheme and not the demand or recovery of any duty as such.

     For  all the reasons stated above, we are of the  view that  the  provisions of Section 11A of the Central  Excises and  Salt Act, 1944, would have no application to any action taken under Rule 57-I of the Central Excises and Salt Rules, 1944,  prior  to its amendment on 6.10.88, and Rule 57-I  of the  Rules  are not in any manner subject to Section 11A  of the Act.  Hence, we approve of the view taken by the Gujarat High  Court  in  the decision reported in 1991 (55)  ELT  25 (supra)  and further hold that the contra view expressed  by the  Madras, Karnataka, Bombay and Patna High Courts in  the decisions  noticed  supra,  does not lay  down  the  correct position of law.  The Reference is answered accordingly.  No costs.