TMI Blog1980 (4) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... duty at the time of clearance. With the result a notice of demand dated 29th March 1975 was issued demanding a sum of Rs. 49,852.92. This notice specifically states that it is issued under Rule 10 of the Central Excise Rules, 1944. This notice on the face of it is a clear notice of demand and does not even purport, either expressly or impliedly, to call upon the petitioners to show cause as to why the duty should not be recovered on one or the other grounds mentioned under Rule 10. 2. The petitioners made a representation dated 1st June 1975 to the Assistant Collector of Central Excise. One of the grounds taken in the said reply is that the said demand notice was issued without a prior show cause notice and was therefore in violation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice issued under Rule 10, but the demand was issued straightway and when the factory approached the Assistant Collector, the orders in appeal were passed. He further pleaded that since the demand was issued without issue of show cause notice, the demands are invalid according to Bombay High Court judgment as reported on 17th July 1976 in the case of M/s New Prahlad Mills Limited. He further stated that the demand should be quashed without a new show cause notice being issued. He further stated that Rule 10 cannot apply in the instant case as there has been no error or misconstruction or inadvertence either on the part of the officer or on the part of the Licensee, inasmuch as the factory gave these figures according to past years clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of this contention as it is not contended before me on behalf of the petitioners that Rule 10 is not the applicable Rule. In any event, in view of the specific finding of both authorities that the demand is covered by Rule 10 it is not open to Mr. Dalal to raise this contention. However, it is unnecessary to decide this point as both the rules require issue of a show cause notice before making a demand. In my opinion therefore whether the demand is treated as made under 10 or 10A, the position is the same and in the absence of show cause notice the demand is illegal and void. 6. In the circumstances, Rule is made absolute in terms of prayer (a). Respondents to pay to the petitioners the costs of the petition. - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
