TMI Blog1990 (8) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... that the yarn was of over 100 counts. The report indicated that the test conducted showed that the counts of the yarn in question were 103, less the tolerance permitted upto 3 per cent. Pursuant to that the show cause notice impugned as at Annexure-G was issued calling upon the petitioner inter alia to show cause why he should not be subjected to proceedings for recovery of short levy in the sum of Rs. 80,645.40 being the difference in excise duty leviable in respect of yarn having a count of less than 92 and yarn having a count of more than 92. In the same notice, the Assistant Collector called upon the petitioner-Company to show cause why penalty proceedings should not be initiated for violation of Rule 173Q(l)(a) of the Central Excise Rules, 1944 for wilfully suppressing the information and material with the intention to commit fraud and deprive the State of its revenue. The petitioner-Company by its letter dated 18-12-1984 stated that there must have been some mistake in the report of the test conducted by the department and therefore fresh test may be conducted of the samples which were still in their possession as only one sample out of four had been tested and the remaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y power. It was also his contention, assuming that the proviso was valid, the exercise of that power in a manner resulting in the issuance of circular based on Central Board of Excise and C. Circular No. 27/77-CX. VI, dated 29-11-1977 as amended by Board's letter 208/14/79-CX. 6, dated 18-11-1980; A-11013/219/80/A-IV, dated 28-2-1981 and Circular No. 41/81, dated 7-5-1981 was arbitrary. (But it has been brought to our notice by the learned Counsel for the Union Government-3rd respondent herein that in fact the power exercised by the Central Board of Revenue is as per notification dated 8-11-1959 by which the power was conferred on the Deputy Collectors, Assistant Collectors and on the Superintendents of Central Excise, the power indicated in clause (a) of Sec. 33 of the Act). It may be so. But the question is whether the proviso is bad for the reasons stated by the learned Counsel for the petitioner. Applying the golden rule of construction, we are unable to see any arbitrariness or arbitrary conferment of power on the Central Board of Revenue by the proviso to Sec. 33 of the Act. The marginal note to the section indicates that the section deals with the power of adjudication and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act and to no one else; to that extent the legislative guidance is implicit in the Act itself and it cannot be said that the power conferred on the Board is either arbitrary or unguided. For these reasons we must reject Mr. Chander Kumar's argument regarding the unconstitutionality of the proviso to Sec. 33 of the Act as violative of Art. 14 of the Constitution. The observation of the Supreme Court in this behalf should be cited which is as follows : ".......................This delegation of authority however, is not unguided or uncontrolled, for the discretion given to the appropriate Government to set up a Commission of Inquiry must be guided by the policy laid down, namely, that the executive action of setting up a Commission of Inquiry must conform to the condition of the section, that is to say, that there must exist a definite matter of public importance into which an inquiry is, in the opinion of the appropriate Government, necessary or is required by a resolution in that behalf passed by the House of the People or the Legislative Assembly of the State. It cannot be said that an arbitrary and uncontrolled power has been delegated to the appropriate Government and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Company. When it asked for a week's further time, then it was the duty of the Company to go and ascertain to which future date the case had been adjourned. To contend that a fresh notice should have been sent intimating the date, in our opinion on the facts and circumstances of the case does not appear to be well-founded. Earlier, adjournments had been granted and the petitioner knew the case against him and he failed to make adequate representation and present his defence which he had been called upon to present in the original notice itself. Therefore, it cannot- be said to have been denied adequate opportunity. We reject that contention. 10. It was then further argued that the notice was defective as it was also a notice under Sec. 11A of the Act as it called upon the petitioner to make good certain sum which was said to be the amount short levied for the specified period between 16th June, 1984 and 5-12-1984. But then we do not find real substance in that argument, that the show cause notice was without jurisdiction because it combined both penalty to be imposed under Sec. 33 as well as recover the short levy under Sec. 11A of the Act. As long as the notice made the person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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