9911796707
TMI Blog1993 (6) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not be made and as to why assessment for the period 25-7-1991 to 29-2-1992 and from 1-3-1992 onwards should not be finalised at the revised rates. 3. In order to understand the full implications of the show cause notice, it is necessary to reproduce paragraphs 5,6 and 7 thereof, which are as under :- "Para 5 :-And whereas, the contention of the notice that the said yarn does not contain synthetic textile material does not appear to be correct as one of raw materials i.e. synthetic waste is a synthetic textile material. The yarn manufactured by the Noticee appear correctly leviable to duty under clause (b) of S.No. 14 of the Notification No. 53/91 supra. Further, the Notification No. 53/91-C.E., dated 1-3-1992 and an explanation was appended to clarify that :- "For the purposes of S. No. 14 of the Table, the expression "Synthetic Textile material" shall include waste falling under Heading Nos. 54.01 or 55.03 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). Para 6 :- Therefore, it appears that yarn manufactured by the noticee contains synthetic textile material and thus S.No. 14(b) of the Notification No. 53/91-C.E., dated 25-7-1991 as further amended by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice, which according to the petitioners is the final demand raised against them. It is also contended that proper and adequate opportunity has not been and would not be afforded to the petitioner to reply to the show cause notice as one month's time, which has to be given for replying to the show-cause notice as per the Government of India instructions vide circular dated 2-7-1978 has not been given and instead only 15 days' time has been given for reply. It is further alleged that the Asstt. Collector had made no provision in the schedule of hearing for recording of relevant evidence and this also amounts to denial of opportunity. It is also alleged that the Assistant Collector is biased against the petitioner and in support of this contention it is stated that despite the earlier pronouncements of the Tribunal in Collector of Central Excise v. Priyadarshini Spinning Mills Ltd. [1990 (50) E.L.T. 145 (Tribunal)] again the show cause notice is issued on the ground that the material used by the petitioners is fibre. A Trade Notice No. 158/90 dated 19-11-1990 is also pressed into service in support of the contention that the department has accepted that waste is not fibre. 5. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally. The preposition that this Court can interfere even at the show cause stage cannot be denied but whether a case for interference at the show cause stage has been made out or not has to be judged in the circumstances of the particular case and there cannot be any cut and dry formula universally applicable to all cases. 8. The other case relied upon by the petitioner is Raghunandan Jalan's case (supra). A Single Bench of the Calcutta High Court interfered at the stage of show cause. It was a case under the Foreign Exchange Regulations Act, 1947. The show cause notice itself stated "from the facts and circumstances of the case it is abundantly clear that five pieces of gold bars were illicitly imported into India from a foreign territory.....". The Court observed that the language of show-cause notice clearly showed that there was nothing left for the enquiry officer to enquire in the Departmental Enquiry as the Customs Officer has already made up his mind that the five pieces of gold bars were illicitly imported into India from a foreign country. In these circumstances it was held that giving of hearing was idle formality and a mere farce. This case also therefore, turns on its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners' apprehension that he may not get a fair hearing was allayed by observing that the authorities shall act in the manner which will create confidence in the petitioners. Not only this, the Court had also clarified that revision or amendment of the classification list, as per the normal procedure, would also be subject to appeal and other legal remedies provided by law. Not only this, a time bound direction was made that the classification list shall be finalised before 30-6-1992 and compliance shall be reported to this Court. 11. In the aforesaid circumstances, there was absolutely no reason for the petitioners to have rushed to this Court with another petition. Moreover, the show cause notice in para 5 only states that "contention of the notices that the said yarn does not contain synthetic textile material does not appear to be correct as one of the raw-materials i.e. synthetic waste is a synthetic textile material." In para 6 also what is stated is " therefore, it appears that the yarn manufactured by the noticee contains synthetic textile material .........". Such a show cause notice cannot be said to be a final order prejudging the controversy and demonstrating bias ..... X X X X Extracts X X X X X X X X Extracts X X X X
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