TMI Blog1993 (5) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent flavours which according to the Respondents can be described as "flavoured Soya Milk beverages". The petitioners have placed on record material to support their contention that the product is nothing but "Soya Milk" and the Department had also placed material in support of their contention that the product is not "Soya Milk" but is flavoured Soya Milk beverages. 3. The impugned show cause notice has not started the controversy. It is already under the adjudicatory process provided by the Act. The earlier show cause notice No. TY (6)5/88/P/8894 dated 9-12-1988. MISC/NS/RV/88 dated 28-4-1989, MISC/NS/RV/88/642 dated 27-6-1989 and MISC/NS/RV/88/881 dated 22-9-1989 requiring the petitioners to show cause against the proposed levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act is an equally efficacious remedy. They therefore contend that this Court in view of the peculiar circumstances of the case should decide the controversy on merits itself. Alternatively it is submitted that the impugned show cause notice has been issued beyond the normal period of limitation of six months taking advantage of the extended period of limitation of 5 years under proviso to Section 11A of the Act alleging that there was suppression of facts and wilful mis-statement on the part of the petitioners while getting the goods cleared. It is contended that there is no question of fraud or mis-presentation or suppression of facts involved in the case and, therefore, the show cause notice was beyond limitation and therefore was with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the show cause notice. 8. This court in Universal Cables Ltd. v. Union of India Others [1978 (2) E.L.T. (J 632)] has relying on decisions of the Supreme Court in Calcutta Discount Co. v. I.T. Officer (AIR 1961 SC 372). East India Commercial Co. v. Collector of Customs [AIR 1962 SC 1893 = 1983 (13) E.L.T. 1342 (S.C.)] and N.B. Sanjana v. E.S.W. Mills [AIR 1971 SC 2039 = 1978 (2) E.L.T. (J 339) (S.C.)] held that it is settled law that if a notice issued by 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful 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." (emphasis supplied) This passage has been quoted and applied by Division Bench of this Court in Hindustan Electrographite Ltd. v. Union of India (supra). 10. The Supreme Court again had an occasion to pronounce on the point in Padmini Products v. Collector of Central Excise [1989 (43) E.L.T. 195 (S.C.)]. Reiterating the observations made in the case of Collector of Central Excise v. Chemphar Drugs Liniments (supra) it was observed that in order to claim th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Authorities to establish that the duty of excise had not been levied or paid or short-levied or short-paid by reason of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any of the provisions of the Act or rules made thereunder, with intent to evade payment of duty. It is also clear that a mere mechanically repetition of the language of the provision in the show cause notice would not confer jurisdiction on the Collector of Central Excise to issue a show cause notice under Section 11A of the Act beyond period of six months taking advantage of the proviso to the Section. 12. Examining the impugned show cause notice in the light of the aforesaid position of law, we find that beyond the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 18th March, 1987 the petitioner filed the declaration form alongwith a list of Directors of Board and list of manufacturing process of the product. This letter along with its annexures is annexed to the petition as Annexure P-3. A bare reading of the process of soya milk manufacture shown in the chart annexed to this letter Annexure P-3 shows that mixing and blending of Vegetable oil, sugar, salt, Vitamin C, flavour/colour, mango pulp, cocoa powder with the soya base is clearly shown in the process chart. In the foot note it is further clarified that the petitioners were making soya milk at that time in three flavours viz. Mango, Strawberry and Chocolate. The ingredients for each type of flavours were then given in the foot note. In the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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