LIMENAPH CHEMICALS Vs. UNION OF INDIA

JUDGEMENT

(1.) THE above writ appeal has been filed against the order of the learned single Judge of this Court dated 29 -1 -1993 in W.P. No. 3788 of 1989, whereunder the learned single Judge was pleased to dismiss the writ petition filed for the issue of a writ ofcertiorarito call for and quash the proceedings of the Collector of Central Excise in Order No. 43/89, dated 31 -1 -1989.

(2.) THE learned Judge has elaborately narrated the relevant facts and also extracted certain paragraphs from the order of the Collector of Central Excise in appreciating the contentions of parties on either side.

(3.) THEREUPON , the appellant filed an appeal before the Collector (Appeals), Madras, who, it appears, has set aside the orders of the Assistant Collector and directed ade novoadjudication after making market enquiries as to the end use of such product. In addition to that, he directed that the result of the test samples drawn should be communicated to the appellant while deciding the casede novo. The market enquiries were said to have been conducted at Madurai, by obtaining written opinion from two main dealers and it transpired from the same that the product is known as 'Janathacem' and it is used for white washing the walls. A chemical test was also said to have been conducted of the product to know whether it conforms to all properties of sagol cement and the chemical expert's report dated 16 -6 -1987 revealed that the product was composed mainly of calcium oxide, calcium carbonate, [silica] and little amount of iron oxide. At the same time, analysing the properties of the respective products, Janathacem on the one hand and the sagol cement on the other hand, it appears, the authorities came to the conclusion that the physical and chemical properties of the two samples were widely different and they could not be treated as identical. On that basis and consequent upon the amendment to Section 11A by the Amendment Act, 1985, show cause notices were said to have been issued invoking the extended period of limitation of five years and the proceedings stood also transferred to the Collector of Central Excise, for further consideration. The earlier two show cause notices issued by the Assistant Collector of Central Excise, Rajapalayam, dated 22 -11 -1984 and 20 -4 -1985, as noticed supra, was taken up forde novoenquiry by the Collector of Central Excise, Madurai, in view of Section 11A as amended in the year 1985. A further notice dated 17 -9 -1988 also appears to have been issued in continuation of the earlier show cause notices issued by the Assistant Collector, calling upon the appellant to show cause as to why the product 'Janathacem' manufactured by it during the period from November, 1979 to March, 1985 be not classified under Tariff Item No. 69 of the erstwhile Central Excise Tariff and why a total sum of Rs. 9, 61, 050.74 be demanded as per the two show cause notices from the appellant as the duty leviable on the product for the period from November, 1979 to March, 1985 under Rule 9(2) of the Central Excise Rules, 1944 and penalty should not be imposed under Rule 173Q for having violated the provisions of Rules 9(1) and 173B of the Rules. A copy of the market enquiry details and also the chemical analysis report also were said to have been furnished to the appellant.