9911796707
TMI Blog1991 (9) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be imposed on them under Rule 173(Q) of the "Rules" for the period 1-4-1983 to 5-8-1983. The notice issued by the Assistant Collector required that the cause should be shown to the Collector, Central Excise and Customs, Bhubaneswar, within thirty days of the receipt of the notice. 2.In the writ application, the petitioners assail the impugned notice on the grounds : - bias and harassment on the part of the issuing authority;(i) the notice is barred by limitation under Section 11A of the(ii) Act; the Assistant Collector has no power to direct a show cause(iii) to be filed to the Collector and the Collector has no power to entertain and receive the show cause and determine the dispute; and the notice issued is discriminatory(iv) de hors the Excise Act and affects the petitioner's business and is consequently hit by Articles 14, 19(1)(g) and 265 of the Constitution. In course of hearing of the writ application, in view of the amended provisions of Section 11A(1) (2) of the Act, the petitioners did not press the ground No. (iii) above nor did the petitioners advance any argument as to how the notice was discriminatory and hit by Articles 14, 19(1)(g) and 265 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing charge-chrome in its export unit, the petitioner was further encouraged by the schemes of the Government of India and ear-marked one of its furnaces for making research for the manufacture of high purity ferro-silicon charge-chrome and solar grade silicon and made an application in that regard to the concerned department of the Government of India which was also duly recognised. This fact was intimated by the petitioner to the Assistant Collector (opposite party No. 2) as early as on 11-4-1983. The petitioner filed classification list but in the said list erroneously had shown charge-chrome slag to be classified as T.I. 68 goods, but according to the petitioner the price-list filed for the period 1-4-1983 to 5-8-1983 did not show any value for the charge-chrome slag. The petitioner alleges that thereafter the excise authorities initiated several proceedings and pursued the petitioner vindictively and some of those proceedings are still pending in different higher forums. In the meantime, the petitioner received the impugned notice of the Assistant Collector dated 1-5-1985, annexed as Annexure I, and the period in question during which the petitioner is alleged to have supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ application, we are unable to accept the contention of Mr. Mohanti for the petitioners that the impugned notice is the outcome of bias. We would accordingly reject the first submission of Mr. Mohanti, the learned counsel for the petitioners. 6.Coming to the question that the notice on the face of it is barred by limitation, the argument of Mr. Mohanti depends upon Section 11A of the Act and according to him the notice in question not having been served within six months from the date as provided in Section 11A, the notice is barred by limitation. In support of this contention, reliance has been placed on a bench decision of this Court in O.J.C. No. 1986 of 1985 (M/s. Indian Metals Ferro Alloys Ltd. another v. Superintendent, Central Excise Customs and others), disposed of on 7-2-1991. We have carefully gone through the aforesaid decision and in our considered opinion, the said decision is of no application to the present case. In the said case, a notice issued under Section 28 of the Customs Act, 1962 came up for consideration and the said provision is in pari materia with Section 11A of the Central Excises and Salt Act with which we are concerned in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uashed on a finding that the conditions precedent for issuance of the notice are not satisfied. According to Mr. Mohanti for initiating a proceeding under Section 11A, the appropriate authority must have reason to believe that the duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded within the ambit of Section 11A of the Act and if the proviso is attracted then it must have to be further found that such non-levy or short-levy or erroneous refund is on account of fraud, collusion or any wilful mis-statement or suppression of facts with intent to evade payment of duty by the person concerned or his agent and, therefore, materials must exist and must be shown in the notice in question without which the notice is illegal and without jurisdiction. In support of this contention, reliance has been placed on the decision of the Calcutta High Court in the case of Ganga Saran Sons P. Ltd. v. Income-Tax Officer and others, (1981) 130 ITR 1, wherein the provision of Section 147(a) of the Income-tax Act was being interpreted. The provision of Section 147(a) starts with the expression "if the assessing officer has reason to believe that an i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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