TMI Blog1989 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... graphite lumps, graphite flakes, graphite electrodes rejects, graphite nipple rejects, graphite dust etc. are obtained by the petitioner Company and for the manufacture of these products, the petitioners obtained a licence Exhibit 'B'. (iv) Under Rule 173-B of Central Excise Rules, 1944 (hereinafter referred to as the Rules), every assessee is required to file with the proper Officer for approval, a list in the prescribed form, showing the full description of excisable goods produced or manufactured by him and the Item No. of the First Schedule to the Act under which such goods fall and the rate of duty leviable on such goods. The list submitted by a manufacturer assessee under this Rule is known as 'Classification List.' The classification lists submitted by the petitioner from 4-8-1977 to 1-4-1983 are Annexure 'C' and Annexures D-1 to D-32. In Col. No. 2 of these lists, the assessee manufacturer is required to give full description of the goods produced or manufactured by him. In Col. Nos. 3 and 4, the assessee has to specify the Item No. and the rate of duty leviable, but the note in the prescribed form lays down that if the assessee has any difficulty in filling Columns 3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purpose of assessment of duty thereon; or (c) where an assessee has produced all the necessary documents and furnished full information for the assessment of duty, but the proper officer deems it necessary to make further inquiry (including the inquiry to satisfy himself about the due observance of the conditions imposed in respect of the goods after their removal) for assessing the duty, the proper officer may, cither on a written request made by the assessee or on his own accord, direct that the duty leviable on such goods shall, pending the production of such documents or furnishing of such information or completion of such test or enquiry, be assessed provisionally at such rate or such value (which may not necessarily be the rate or price declared by the assessee) as may be indicated by him, if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of the difference between the amount of duty as provisionally assessed and as finally assessed." (vi) The classification lists submitted by the petitioner company were not modified by the exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In view of the contention urged on behalf of the parties, the first question for consideration is whether the petitioners are entitled to any relief under Art. 226 of the Constitution of India. In this connection, we may usefully refer to the following observations of a D.B. of this Court in 1978 (2) E.L.T. (J 632) (Universal Cables Ltd. v. Union of India and Others: "Learned counsel for the respondents has further argued that as no final order has been passed in any of the cases and as the petitioner's contentions would be considered by the excise authorities while passing final orders in all these cases, no interference should be made under Article 226 at the stage of notice. It is now settled law that if a notice issued by a tribunal or authority threatening to initiate proceedings prejudicial to a person is on admitted facts in excess of jurisdiction, the tribunal or authority can be prohibited from further proceeding in the matter under Article 226 to save unnecessary harassment of the person concerned: [See Calcutta Discount Co. v. I.T. Officer (A.I.R. 1961 S.C. 372); East India Commercial Co. v. Collector of Customs (A.I.R. 1962 S.C. 1893)]. In N.B. Sanjana v. E.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion or willful misstatement or suppression of facts or contravention of any provision of the Act or Rules made there under, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months. Whether in a particular set of facts and circumstances, there was any fraud or collusion or willful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal came to the conclusion that the facts referred to hereinbefore do not warrant any inference of fraud. The assessee declared the goods on the basis of their belief of the interpretation of the provisions of the law that the exempted goods were not required to be included and they did not include the value of the exempted goods which they manufactured at the relevant time. The Tribunal found that the explanation was plausible and also noted that the Department had full knowledge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3B were not resorted to. There was no provisional assessment to duty as provided by Rule 9B. There is no material whatsoever on record to show the applicability of the provisions of clause (a) or clause (b) or clause (c) of sub-rule (1) of Rule 9B so as to empower the proper officer to proceed to make provisional assessment. The endorsements made by the excise officials on the classification lists 'C' and 'D-1' to 'D-32' submitted by the petitioner company, disclose that these lists were 'approved' or 'approved until further orders' or 'approved subject to production of end use certificate'. It is not disputed that the petitioner company did produce end use certificates. The respondents do not contend that as a result of production of these certificates, any modification of the approval accorded by them became necessary. Neither the procedure laid down in Rule 9B for making provisional assessment to duty was followed, nor is there anything on record to suggest that the assessment was provisional. The respondents have not produced any order passed by any excise official holding that the goods in question are liable to be assessed under Tariff Item No. 67 and not under Item No. 68. E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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