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TMI Blog1988 (2) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ing errors on the very face of the record and as such the said notice has to be quashed. It is also submitted by the learned Counsel for the petitioner that if at all there is any reason to be offered to the Department, it could only be with respect to a period of six months prior to the date of issue of notice and not with respect to the manufacture of the paper for a period of two years. The grievance of the petitioner is that when other manufacturers of the same kind of paper are' not assessed, issuing a show cause notice to the petitioner alone is certainly a discrimination which will be sufficient ground to quash the notice itself. According to the learned Counsel for the petitioner, there is total lack of jurisdiction to issue a notice on the petitioner especially when the notice itself mentioned that the paper that is manufactured by the petitioner is only white tissue paper. In this regard the contents of the Notification No. 68/76 dated 16-3-1976 are relied on by the learned Counsel for the petitioner which reads as follows :- "Notification No. 68/76 dated 16-3-1976 as amended :- In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h have been subjected to various treatments such as coating, impregnating, corrugation, crep-ing and design printing not elsewhere specified." 40% Ad valorem Relying on this notification, it is contended that converted types of papers are exempt from levy and the paper that is produced by the petitioner is only with respect of one side of the paper in that it is subjected to printing of colour with or without design. It is not subsequently varnished or glazed by chemical or embossed. On the other hand it is treated once and for all one side with chemicals and as such under serial No. 3A described in the Table incorporated in the Notification No. 68/76 it is exempt, and that the rate of duty is 'nil'. According to the learned counsel for the petitioner, now the department wants to impose tax having properly understood the manner in which the white tissue paper is treated and converted as contemplated under the types of papers which are exempt by the notification incorporated above. 3. Mr. T. Somasundaram, Additional Central Government Standing Counsel, for the respondents would submit that there is no question of quashing the notice which is legally issued to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the excisable goods removed during the months to which the said return relates, is to be filed by a manufacturer or producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) Where no monthly return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) In any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in a case of excisable goods on which duty of excise has been erroneously refunded the date of such refund." 4. A careful reading of both the provisions of Rule 9 and Section 11 A of the Central Excises and Salt Act, 1944, clearly shows that sufficient power is vested with the Collector to issue notice with respect to any period wherein the authorities concerned discovered that there had been omission to collect the tax as per law after issuing notice. 5. It is pointed out by the learned counsel for the petitioner that the contents of the notice do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of the Act by the authorities concerned. In this case no such enquiry has been conducted by the authorities. Only a show cause notice had been issued. It is the case of the department that the recovery of duty has not been resorted to. It is not that any allegation is made against the petitioner that there had been any clandestine removal. Under these circumstances it cannot be said that no opportunity is given to the petitioner to put forth his case that the product that is manufactured by the petitioner comes under exempted category and that such exemption has in fact been given to other manufacturers. A submission is made to the effect that the petitioner would be driven to close down the very manufacturing unit since the Act contemplates heavy deposit of amount before actually taking part in the proceedings that may be conducted by the authorities. The law is common to all whether it is for the assessing authority or for the person who is sought to be assessed and as such we are governed by the procedures that are available in the Central Excises and Salt Act, 1944 regarding assessment of an assessee or imposing of tax. In the instant case, the remedy is availab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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