TMI Blog1980 (1) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ing components, namely...........". By another Notification dated 9th June, 1973, the words "and/or Fumaric Acid" were inserted in the earlier Notification of 1st June, 1971 after the words "Maleic Anhydride". Thus by the later Notification dated 9th June, 1973, the concessional rate of duty at 10% ad valorem was also attracted to Synthetic Resins manufactured by reacting Fumaric Acid with certain components. 4. Under the Central Excise Rules, the petitioner submitted a classification list dated 13th September, 1971 in respect of Maleic Resin. The Excise Department drew samples and communicated its approval of the petitioner's classification by the Department's letter dated 17th/21st October, 1971. On 6th April, 1972, the department forwarded to the petitioner the results of the chemical examination conducted by the department. The petitioner proceeded to clear the goods at the concessional rate, filed its monthly returns and assessment orders were also passed for the period June, 1971 till August, 1972. 5. By a show cause notice dated 21st December, 1972 (issued on 6th January, 1973) issued by the Superintendent of Central. Excise it was proposed to vary the classification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fumaric Acid which is a derivative of Maleic Acid, the Maleic Resin manufactured by the petitioner out of the Fumaric Acid was entitled to the concessional rate of excise duty under the Notification of 1st June, 1971. Mr. Dada further urged that the later Notification of 9th June, 1973 merely makes explicit what was implicit in the earlier Notification of 1st June, 1971. Mr. Dada relied upon certain passages in the Encyclopaedia Britannica Vol. 9 at page 914 under the heading "FUMARIC AND MALEIC ACIDS" as under : ' "Fomaric acid......... is obtained by heating maleic acid alone to 150oC. or by heating it with hydrochloric acid or hydrobromic acid. It may also be obtained .............. by heating maleic acid to 210oC.......... "Both acids yield acetylene by the electrolysis of aqueous solutions of their alkali salts, and on reduction both yield succinic acid; while by the addition of hydrobromic acid they both yield monobromosuccinic acid. From this behaviour it follows that the two acids are structurally identical......... "maleic acid readily yields an anhydride, whereas fumaric acid does not." Reliance on these excerpts can be of no avail to the petitioner. Even assumin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to 6th August, 1977 reads as under :- "10.(1) When duties or charges have been short-levied through inadvertence, error collusion or mis-construction on the part of an officer, or through mis-statement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, -after having been levied, has been owing to any such cause, erroneously refunded, the proper officer may, within three months from the date on which the duty or charge was paid or adjusted in the owner's account-current, if any, or from the date of making the refund, serve a notice on the person from whom such deficiency in duty or charges is or are recoverable requiring him to show cause to the Assistant Collector of Central Excise why he should not pay the amount specified in the notice. (2) The Assistant Collector of Central Excise, after considering the representation, if any, made by the person on whom notice is served under sub-rule (1), shall determine the amount of duty or charges due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined within ten days............". In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aleic Resins" as contained in the Notification dated 1st June, 1971. The annexure concluded as under :- "From the above it is clear that product JBA 400-C does not qualify exemption as "Maleic Resin" as per wording of abovesaid Notification. The product `JBA 400-C' manufactured by Messrs J.B A. Printing Inks Private Limited, Bhandup is, therefore, liable to duty at appropriate rate as "other Resin" under TI No. 15A(l)(i)." 14. There is nothing whatsoever in this show cause notice or the annexure to indicate that Rule 10 was being invoked by the department. There is no mention of any specified amount in this notice which the authority was calling upon the petitioner to show cause why it should not be paid. This is left to conjecture or at best to calculation which may or may not be acceptable to one party or the other depending upon the quantity of goods cleared and other factors, determinable or otherwise. This is exactly the mischief that Rule 10 seeks eliminate by providing that the amount shall be specified in the show cause notice. When the authority issues a show cause notice under Rule 10, the party against whom such notice is issued must be made manifestly aware that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reveals that the petitioner was left groping in the dark whether or not the show cause notice was intended to be under Rule 10. It also reveals that even at that stage, the petitioner had urged that it was not a show cause notice as required by Rule 10. To this, the answer of the appellate authority, in its impugned order, is merely that the duty could only be demanded under Rule 10 and on that ground upheld the demand for the period 7th January, 1972 onwards without even specifying the amount the petitioner was required to pay. Thus, the appellate order is not in compliance with Rule 10(2) which provides for the determination of the amount of duty which shall not be in excess of the amount specified in the notice. Thus the department was under an obligation to state and specify in its order the amount which the petitioner was required to pay without leaving the quantum to calculations and other factors. Merely calling upon the petitioner to pay duty "for the period 7-1-1972 onwards" is not tantamount to determination of the amount the petitioner was required to pay. It was incumbent that such amount had to be stated in the order, which it was not. 17. In its revision applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was never raised or argued either before the Collector or before the Tribunal, and that in the exercise of writ jurisdiction the Court was merely concerned with finding out whether there is an error apparent on the face of the record and hence the Division Bench did not allow the petitioner to argue an entirely new point which was never canvassed before the Tribunal and which had not been dealt with by them and in respect of which it could not be said that there was an error apparent on the face of the record. Mr. Dalal also relied on the decision of the Supreme Court in Bachan Singh and others v. Gauri Shankar Agarwal and others, A.I.R. 1971 SC 1531, where it was held that a new plea cannot be entertained in writ proceedings. I respectfully agree with these decisions. However, the ratio in those cases can possibly have no application to the facts in the present case before me where it is abundantly clear that apart from the fact that from the very outset the petitioner was let in wonderment whether the notice had been issued under Rule 10, the petitioner had in so many words specifically raised the point that the provision of Rule 10 had not been complied with. Hence it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r observed that it is not possible to lay down any general principle on the question as to whether the report of an investigating body or of an inspector appointed by an administrative authority should be made available to the persons concerned in any given cases before the authority takes a decision upon that report. The answer to this question also must always depend on the facts and circumstances of the case. In the circumstances of the case the non-disclosure of the report of the Investigating Committee did not cause any prejudice whatsoever to the textile mill company or the persons concerned. 20. That decision and the observation of the Supreme Court can be of no assistance to the present respondents. It can hardly be said that the requirement of Rule 10 making it incumbent for the authority to state a specific amount is an empty formality. The facts and circumstances in Kesava Mills Co. Ltd. case before the Supreme Court have not the slightest semblance or bearing to the facts and circumstances of the matter before me. In the circumstances, the final ground of challenge urged by Mr. Dada be accepted and the contention of Mr. Dalal to the contrary must be rejected. 21. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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