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TMI Blog1991 (7) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... le. Item No. 12 of the said Notification reads as under : (1) (2) (3) (4) 12. Millboard Straw board Ten per cent ad valorem plus five hundred twenty-five rupees per metric ton. The said Notification contains an explanation which states that for the purpose of the Notification, "Millboard means any unbleached homogeneous board having a thickness exceeding 0.50 millimeter and made out of waste papers with or without screening and mechanical pulp but without any colouring material being added thereto." 3. Notification No. 45/83 also issued under Rule 8(1) of the Rules granted further concession in respect of millboard. In this notification also millboard has the identical definition as in Notification No. 44/83. 4. Between 1st April, 1983 and 31st October, 1985 the petitioner submitted six classification lists. In each classification list the petitioner claimed concession under the said two Notifications and also disclosed that the raw material used was mixed wastepaper. The classification lists were approved. The respondents also tested the millboard of the petitioner for the purpose of determining w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility under the Act on the basis of the facts contained in this show cause notice itself. The petitioner was not entitled to rely upon other documents for negativing the question of liability. It has been argued that in any event the petitioner had an alternative remedy under the Act and therefore this court should not interfere with the proceedings at this stage. The respondents have relied upon Geep Flashlight Industries Ltd. v. Union of India reported in AIR 1977 SC 456 = 1983 (13) E.L.T. 1596 (S.C.) Garware Plastics and Polyester Ltd. Anr. v. Union of India reported in 1986 (24) E.L.T. 449 (Bom.), I.T.C Ltd. v. Union of India reported in A.I.R. 1989 Cal. 294 = 1988 (34) E.L.T. 473 (Cal.) (2) The mere approval of the classification lists did not mean that the respondents could not question the utilisation of the concession as there could be no estoppel against statute. Reliance has been placed on Elson Machines Pvt. Ltd. v. Collector of Central Excise reported in 1988 (38) E.LT. 571. (3) On a plain reading of the Notification it could not be said that the interpretation given in the show cause notice was perverse. The applicability of the decision of the Government, the Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would be maintainable and the writ court can undertake a limited scrutiny on the points raised in the petition to find out whether there was any jurisdictional error and/or any legal infirmity in the proceeding" ..... "if the writ court can decide the question on the basis of the admitted facts, in that event, the writ petition could be held to be maintainable. If it appears to the writ court that the proceeding suffers from a legal infirmity which goes into the root of the case and is not curable during the proceeding, in my view, the party cannot be directed to submit to the jurisdiction of the authority concerned and to undergo the proceeding which would ultimately fail." 9. In Geep Flashlight Industries Ltd. (supra) the Supreme Court held: "The appellant's prayers for writs of certiorari and mandamus are misconceived. There is no order either judicial or quasi-judicial which can attract certiorari. No mandamus can go because there is nothing which is required to be done or for forne under the Act. The issue of the notice in the present case requires the parties to represent their case. There is no scope for mandamus to do any duty or act under the statute. A writ of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercise of its jurisdiction under Art. 226 of the Constitution will interfere with a show cause notice in the following circumstances : (1) When the show cause notice ex facie or on the basis of admitted facts does not disclose the offence alleged to be committed; (2) When the show cause notice is otherwise without jurisdiction; (3) When the show cause notice suffers from an incurable infirmity; (4) When the show cause notice is contrary to judicial decisions or decisions of the Tribunal; (5) When there is no material justifying the issuance of the show cause notice. 16. It will therefore have to be considered whether any of such circumstances is prevalent in this case justifying interference with the impugned Notice by this Court. 17. As far as the second contention of the respondents is concerned it will be assumed, without deciding the issue, that the respondents had the jurisdiction to take a different view from the approved classification lists and were not estopped from doing so. 18. This brings us to the third contention. It is contended by the respondents that the notifications granted concessions to millboard which by definition had to contain mechanic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er being added thereto." "2. It has been brought to the Board's notice that the above Explanation is sought to be interpreted in a restrictive manner. According to this interpretation the presence of mechanical pulp is a sine qua non in order for millboard to be entitled to the benefit under the above Notifications." "It is not a sine quo non that millboard should contain mechanical pulp. Law Ministry is also of the view that for the purpose of the above Explanation, millboard need not necessarily be made out of mixture of waste papers and mechanical pulp." 23. These clarifications much preceded the notifications which are the subject matter of this case. Therefore, it can be assumed that when the identical definition of millboard was used again in the same statute dealing with the same subject matter it was intended that the definition would bear the meaning so attributed to it. It has not been shown by the respondents that the context is different justifying a different meaning being given to the definition of millboard. 24. In Webb v. Outrim reported in (1907) A.C. 81 the Privy Council approved the following statement of the law: "When a particular form of legislative en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner had therefore correctly claimed the concessional rate under the said notifications and there was no justification for the respondents to initiate proceedings against the petitioner for that reason. The Show Cause Notice is thus liable to be quashed on this ground. 31. However, I do not wish to rest my decision on this finding alone. Assuming that mechanical pulp was a necessary ingredient for millboard to qualify for the benefit under the said notifications, in my view the impugned show cause notice had also been issued beyond the period of limitation prescribed under Section 11A of the Act. Section 11A of the Act reads as follows : "11A. Recovery of duties not levied or not 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 specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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