TMI Blog1990 (9) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... ting on base papers, as per customers' specifications and such printed materials are used by their customers for purposes of packing. The appellants also averred that they either buy the required duty paid base papers required for such printing purposes or the same has been supplied to them by their customers. It is not in dispute before us that the appellants were originally clearing the printed materials on payment of excise duty under Tariff Item No. 68 of the 1st Schedule to the Central Excises and Salt Act, 1944, hereinafter referred to as the `Act'. But, in view of the Exemption Notification issued by the Central Government, the appellants moved the first respondent by their letter dated 30-6-1977 contending that their products were exempt under Notification No. 122/75, dated 5-5-1975, since it answers the description "products of printing industry". On the advice of the appellants, the first respondent also obtained refund and consequently from 17-4-1978 they were clearing their products by availing the exemption under Notification No. 122/75, dated 5-5-1975. 3.While matters stood thus, aggrieved against the notices issued by the second respondent dated 4-12-1980 and 9-12- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the question as to how far the step taken by the Department is correct or not is a matter for agitation and adjudication before the authorities under the Act and the appellants cannot come to Court straightaway and seek a prohibition. The learned Single Judge also expressed the view that the rulings relied upon by the appellants related to the position of law in 1978 and it cannot be held that it continued to be the same in 1980 as well. The learned Judge while dismissing the writ petitions also clarified that till there is an adjudication of the issue, there was no question of demanding any excise duty under Tariff Item No. 68 from the appellants. The above appeals have been filed against the said order of dismissal. 6.Before us, Mr. Sriram Panchu, the learned Counsel appearing for the appellants contended as follows :- (a) The impugned notices can be questioned before Court under Article 226 of the Constitution of India since according to the learned Counsel the notice dated 4-12-1980 being a demand preceded a determination of the issue raised in the show cause notice issued subsequent to the demand itself; (b) So far as the show cause notice dated 9-12-1980 is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection from the counsel for the respondents that no writ lies at the stage of a mere show cause notice, relied upon the decision reported in Union of India v. Madhumilan Syntex Pvt. Ltd. - 1988 (35) E.L.T. 349 (S.C.), Madras Rubber Factory Ltd. v. Assistant Collector of Central Excise, Madras and Another - 1981 (8) E.L.T. 565 and J.K. Synthetics Ltd. and Another v. Union of India and Others - 1981 (8) E.L.T. 328 (D.B., Delhi). The Supreme Court had in the case referred to supra was concerned both with a demand issued under the Act without an earlier show cause notice and an adjudication as well as a further show cause notice issued. There was no decision on any question regarding the maintainability as such in that case. As far as the decision in Madras Rubber Factory Ltd. v. Assistant Collector of Central Excise, Madras and Another - 1981 (8) E.L.T. 565 is concerned, it appears that the learned Single Judge rejected the objection regarding the maintainability on the ground that the notice issued by a Tribunal or authority threatening to initiate proceedings which are prejudicial to a person on the admitted facts justified the exercise of jurisdiction under Article 226 of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n open excessive exercise of such jurisdiction. Neither of these could be claimed to exist in this case which could be said to prevent the authorities from taking action in their undoubted exercise of statutory powers. Therefore, we see nothing wrong in the exercise of discretion by the learned Judge in declining to interfere in the matter at this stage and consequently the submission on behalf of the appellant is rejected. 10.Learned Counsel for the appellants sought to attack the impugned proceedings by using one to substantiate his grievance against the other. So far as the communication dated 4-12-1980 is concerned, learned Counsel contended that it amounted to a demand and is liable to be set aside having preceded the issue of a show cause notice and a formal adjudication. In this context too, learned Counsel referred to the decision in Union of India v. Madhumilan Syntex Pvt. Ltd. - 1988 (35) E.L.T. 349 (S.C.) = (A.I.R. 1988 S.C. 1236). In our view, the appellant cannot derive any support from the said decision to the case on hand. It could be seen from the said decision that the demand challenged there in the prescribed form and in law and substance was really a demand for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that it is premature at this stage for the appellants to expect the respondents to disclose all those details or reasons and while considering the explanation and adjudicating upon the matter, the reasons justifying the stand of the Department will be duly furnished. On going through the judgment of the Division Bench of the Delhi High Court referred to by the learned Counsel for the appellants, with respect to the learned Judges, we are unable to concur with the propositions laid down therein. 12.We consider the principles laid down therein to be rather wide. Whatever may be the justification or otherwise to countenance such a proposition at the final stage of the proceedings in considering the legality or validity of the orders ultimately passed adjudicating the claims, we consider it to be most inappropriate and unwarranted to even interdict the authorities at the threshold from going into the matter and rendering a finding on the respective claims of the assessee as well as the stand of the Department. A Division Bench of this Court consisting of M.N. Chandurkar, C.J. and Venkataswami, J., in a case reported in Madras Rubber Factory Ltd. v. Superintendent of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under Rule 10. On the assessee submitting a reply therein, a final order was passed, which was the subject matter of the challenge in the writ petition before this Court. The learned Single Judge in the said case held that the show cause notice issued amounted to prejudging the matters in that case and set aside the proceedings with liberty to the Department to proceed afresh if permissible in law. As against this, both the assessee as well as the Revenue preferred writ appeals. The Division Bench, placing reliance upon the decision of the Supreme Court reported in Tata Iron Steel Co. Ltd. v. Union of India - 1988 (35) E.L.T. 605 (S.C.) = (A.I.R. 1988 S.C. 1269) came to the conclusion that in respect of the period of 6 months which could be covered under Section 11A, the existence of approved classification list would not be a bar to impose and collect appropriate duty. In arriving at such a conclusion, the learned Judges referred to the decision of the Supreme Court in Elson Machines Pvt. Ltd. v. Collector of Central Excise - 1988 (38) E.L.T. 571 wherein the Supreme Court declared the position in the following terms :- "The next submission on behalf of the appellant is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the Department to change the pattern of assessments at its whim and put an assessee to avoidable inconvenience and harassment. The ratio of the said decision has to be restricted only to the context of a total absence of any controversy on facts and an existing and binding decision of the Central Government in exercise of statutory revisional powers or of the Judicial Tribunal or Court proclaiming a particular position which became final and conclusive qua the authorities. The said principle, at any rate, cannot be extended to the present case. 16.We consider that the factual position in the case on hand requires investigation by the adjudicating authority. As could be seen from the proceedings dated 17-4-1978, the exemption appears to have been allowed on the footing that the appellant was doing the process of printing on the products "mostly out of the duty paid base paper supplied by the customers". But even in the affidavit filed in support of the writ petitions in this case, the appellants admit that "the petitioner either buys these duty paid based papers or has been supplied to it by its customers". Further, the business activity of the appellant in a particular year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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