TMI Blog1990 (3) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... i is at Exh. E. 2. The Petitioner is a Company incorporated under the Companies Act, 1956 and has its registered office at Bombay. The petitioner company has got two units, one at Borivli-Bombay and the other at Bhor, district Pune. The dispute in the present petition is restricted to the unit at Bhor. The petitioner company is engaged in manufacturing the product commonly known as PVC coated paper. "PVC" is short form of Poly Vinyl Chloride" which is a plastic raw material within the meaning of the said Act. The petitioner's product is sold in the market under brand names of "Paplast" and "Muralon". The plant at Borivli is called Lamination plant whereas the plant at Bhor is called Coating plant. Although manufacturing process is differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show cause to the Collector of Central Excise Pune PMC's Commercial Building, Hirabaug, Tilak Road, Pune 411 002 as to why the 644 bundles = 80185.75 Mtrs = 24292 Kgs. of PVC coated paper under seizure should not be confiscated under Rule 173-Q(1) of Central Excise Rules, 1944 and why penalty should not be imposed on them under Rule 173-Q(1) ibid and why duty should not be recovered under Rule 9(2) ibid on the 1418207.00 L. Mtrs (380001.25 Kgs) PVC coated paper removed by them without payment of duty upto 13-10-1976." It appears that during the seizure, statements of some witnesses were recorded which were also annexed to the show cause notice. 4. A bare perusal of this show cause notice would show that the same was issued on the foo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also order confiscation of the 644 packages of paper valued at Rs. 2,83,723.00 under the same Rule. However, I give M/s Bhor Industries Ltd., Bhor an option to redeem the goods, within three months of the date of this order, on payment of a fine of Rs. 30,000/- (Rupees Thirty thousand only) only. I also demand from M/s Bhor Industries Ltd., Bhor under Rule 9(2) of the Central Excise Rules, 1944 duty on the 14,18,207.00 Metres (380001.25 Kgs) PVC coated paper removed by them without payment of duty upto 13-10-1976 at the appropriate rate. The goods under seizure if redeemed, shall be cleared on payment of duty". It is thus clear that the order passed by the Collector also proceeds on the footing that the petitioner have contravened the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 to demand this duty. In view of the foregoing finding of the Board that there was no mala fide on the part of the appellant and that they had submitted a classification list which should have been properly scrutinised before approval by the Assistant Collector, the Board agrees with them that only Rule 10 (as amended by Rule 173-J) can be invoked in this case to demand the duty. Subject to the above modifications, the Collector's order is confirmed." 8. It is this order which is the subject matter of challenge in this writ petition. The show cause notice was based upon facts constituting contravention of Rule 9(1) of the Rules. The learned Member of the Board in paras 6 and 7 finds otherwise and accordingly order of the Collector was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly distinguishable. In the present case the show cause notice was issued under Rule 9(1) of the Rules and the contents of the said notice were based upon the requirements contemplated under the said rule. The requirements as regards the show cause notice under Rule 10 read with amended Rule 173-J are different. Even the Central Board of Excise and Customs in its order has held that the approval by the Assistant Collector was due to inadvertence. If this be so we are unable to read the contents of the show cause notice issued to the petitioner Company as if fulfilling the requirements of Rule 10 as amended by Rule 173-J of the Rules. 10. On this short ground, in our opinion, the petition must succeed. Rule is made absolute in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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