TMI Blog1983 (7) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ment has held, white' allowing the revision of the assessee, that the product which the said assessee was manufacturing, namely, Phenol Formaldehyde moulding powder was a product which was entitled to the benefit of the exemption Notification No. 122/71 as Phenolic Resins. In order to appreciate, however, the final directions which we are inclined to issue in this matter, a few facts need be noticed. 2. Petitioner No. 1 is a partnership firm manufacturing Phenol formaldehyde moulding powder since 1970 in lump, solid or liquid form. The petitioners contended that their product is phenolic resins. Prior to June 1, 1971, this product was excisable under Tariff Item No. 15-A of the Central Excise Tariff read with Notification of the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1974 and the third one dated February 3, 1975 calling upon the petitioners to show cause why the amount refunded to them under the exemption notification should not be recovered and subjected to excise duty at 40% ad valorem. The petitioners filed their replies to the aforesaid three show cause notices contending, inter alia, that there was no material before the excise authorities to effect a change in their stand which they had hitherto taken conceding the claim of the petitioners and praying for the reasons which weighed with the authorities for the change in the opinion. Since this request for furnishing the reasons was not complied with, by Special Civil Application No. 764 of 1976, the petitioners were compelled to move this court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m them". 4. It appears that after this order was made by the Division Bench in June, 1977, three fresh show cause notices were issued on September 20, 1977. It further appears that in those fresh show cause notices, only one additional fact is mentioned than those set out in the earlier show cause notices which were quashed and set aside by this Court, namely, the statement of the petitioners in their two letters dated November 1, 1972 and December 5, 1982 stating, inter alia, as to what was precisely the manufacturing process and to what industrial use the product was put to. The petitioners had by their letter dated October 3, 1977 called upon respondent No. 3 to furnish them with any fresh material or evidence in the possession of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, entitled to concessional rate of duty as admissible under Notification No. 122/71. In paragraph 4 of the said order, which is reported in 1982 Excise Law Times, p.782, it has been stated as under :- 4. The Government find considerable force in the petitioner's submissions. Phenol formaldehyde moulding powder which is obtained by chemical reaction of phenolic resin with fillers and other additives for making them fit for a particular use does not cease to be a phenolic resin. Government further agree with the petitioners that the benefit of exemption Notification No. 122/71 is available to all phenolic resins (except blends of phenolic resin with other resins) and that the use of the word 'including' in the aforesaid exemption not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s qualified liberty reserved in the respondents has not been fulfilled. We must, however, admit that when these fresh show cause notices were issued, the excise authorities had not the benefit of the decision of the Government of India which we have referred to above. None the less, when we are called upon today to decide whether the petitioners are entitled to refund, we have to bear in mind the legal position as finally decided upon by the Government of India itself in a similar matter. The result, therefore, is that it cannot be gainsaid that fresh show cause notices were not according to the correct legal principles and they were ultra vires the power of the authorities since this court has, while upholding the claim of the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X
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