The effect of the amendment on the notifications issued previously and the statutory duty of the petitioner to pay its contribution as per the rules.

JUDGMENT :

S.N. Prasad, J.

This writ petition is against the communication dtd.21.10.2003 issued under the signature of Asst. Provident Fund Commissioner (CCI), Orissa, Bhubaneswar whereby and where under the petitioner has been directed to deposit the short-fall dues of Rs.2,50,268/- in A/c.-I (Differential amount) due to issue of Accounts Slip @ 12%.

2. The brief fact of the case of the petitioner is that the petitioner who is a company registered under the Companies Act, 1956 having its Registered Office at Bhubaneswar which deals with manufacture of high density of polyethylene twine and polypropylene rope. The petitioner being a small scale industrial unit is registered with the District Industries Centre, Bhubaneswar was issued with permanent Registration Certificate and started its commercial production w.e.f. 25.2.1994. The petitioner unit was eligible for infancy benefit as per section 16 of Employees’ Provident Fund and miscellaneous Provisions Act, 1952 (hereinafter referred to as EPF Act) and after completion of the infancy period the petitioner started deduction of contribution of employees w.e.f. March, 1997 @ 8.33% after consulting the Enforcement Officer of the locality.

The Government of India vide notification dtd.9.4.1997 in exercise of power conferred by the First Proviso to Section 6 of the Employees Provident Fund & Miscellaneous Provision Act, 1952 has amended the quantum of statutory deduction as contained in Schedule-II with effect that the proviso shall apply the words “eight and one-third percent” at both places where they occur the words “ten percent” shall be substituted.

Thereafter Sec.2 of Ordinance 17 of 1997 substituted w.e.f. 22.9.1997, the words “ten percent” and “twelve percent” for the words “eight and one-third percent” and “ten percent” respectively where-ever they occur in Sec.6. Ultimately, the same proviso was incorporated in Act 10 of 1998 w.e.f. 22.9.1997 and as such Sec.6 as amended by Act 10 of 1998 w.e.f.22.9.1997 prescribed the rate of contribution at 10%.

The case of the petitioner is that by virtue of the amendment the Central Government has not come out with a notification in pursuance to the First Proviso to Sec.6 enhancing the rate of contribution to 12% and to specify the establishment to which it will be applicable. The petitioner has sought for clarification from the opposite parties but no clarification has been given.

The petitioner in support of his argument has relied upon the judgment rendered by Privy Council in the case of Nazir Ahmad Vrs. Emperor, AIR 1936 PC 253, judgment rendered by Hon’ble Supreme Court in the case of Commissioner of Income Tax, Mumbai Vrs. Anjum M.H. Ghaswala and Ors, (2002) 1 SCC 633, in the case of Ram Phal Kundu Vrs. Kamal Sharma, (2004) 2 SCC 759, judgment rendered by this Court in the case of Rabinarayan Sahu Vrs. Forest Range Officer of Soroda Range & Others, 2008(2) OLR 592 and in the case of Nayak Variety Store Vrs. Commissioner of Sales Tax, CLT (2008) Supplement 398.

The opposite parties had issued a notice on 30.9.2001 U/s.7-A of the Act for determination of money due from the employer for the period from 3/2000 to 1/2001, the petitioner in response to the notice had appeared and filed his reply and taking into consideration the fact that the money as required had already been deposited by the petitioner, the proceeding U/s.7-A of the Act, 1952 has been dropped vide order dtd.15.10.2001 / 11.12.2001.

The Asst. Provident Fund Commissioner (O.P.2) had issued another letter dtd.15.11.2001 mentioning therein that the petitioner had contributed @ 10% instead of 12% w.e.f. 22.9.1997 under the amended provision of EPF Act and the Annual Statement of Accounts and requested to comply at the enhanced rate of contribution applicable to the establishment by depositing the arrear dues. The petitioner has objected to such notice on the ground that as per Sec.6 the rate of contribution applicable to all establishment is 10% and the Central Government after