H N MARIAM Vs. SUPERINTENDENT CENTRAL EXCISE SANKARANKOIL

JUDGEMENT

(1.) All these writ appeals, which are directed against a common judgment of our learned brother, Ramanujam J. rendered in W.P. Nos. 10868 of 1981 batch, can be dealt with under a common order since they raise identical questions.

(2.) The appellants are manufacturers of safety matches. On 4-6-1979, a Notification No. 201/79-C.E. was issued, which was later on amended by Notification No. 264/79-C.E., dated 29th September, 1979. These notifications provided for a set-off of duty on all excisable goods to the extent the duty paid goods falling under Item 68 had been used as an input. In proviso 3 of the said notification it was provided that the notification will not apply to the goods on which excise duty had been paid through banderolls. The appellants challenged the validity of the proviso 3 by preferring writ petitions contending that the notification allowed set-off of excise duty on inputs like Potassium chlorate, glue and phosphorus etc., all of which go into the manufacture of safety matches, while the proviso however had denied the benefit of the notification to the manufacturer of safety matches only on the ground that they pay excise duty on matches through banderolls. On this basis it was urged that there was a clear discrimination. W.P. 1554 of 1981 batch were admitted and an interim injunction was granted on 24-3-1981. As a result of the interim injunction the respondent - (Superintendent of Central Excise, Sankarankoil) was restrained from collecting excise duty referable to the value of the imports. It may be stated at this stage that the Central Excise department did not accept the claim of the appellants. It was urged on its behalf that there was no discrimination whatever, especially in a matter granting benefits or exemption. It was further urged that the writ petitioners cannot claim exemption as of right. Those writ petitions were ultimately dismissed on 16-11-1981 by a Division Bench of this Court holding that proviso 3 to the Notification No. 201 of 1979-C.E., dated 4-6-1979 as amended, was valid. After the disposal of these writ petitions the Superintendent of Central Excise, issued similar notices to the appellants in the following terms :

(3.) You are, therefore, directed to pay the differential duty as per details in the worksheet furnished over-leaf within 10 days of the receipt of this order, failing which action will be taken to recover the said amount in accordance with the law.' The appellants challenged these notices before our learned brother Ramanujam, J. The principal contention urged before the learned Judge was that the proceedings in relation to the impugned notices should have been initiated under Section 11A of the Central Excises and Salt Act. Irrespective of the nature of the short-levy the only available provision for recovery of levy will be Section 11A of the said Act. Without following that procedure, straightway the Superintendent could not by a mere notice call upon the appellants to pay the difference in excise duty. This contention was overruled and the writ petitions were dismissed. Hence, the present writ appeals.