U P LAMINATION Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) Having heard parties at length we are inclined to grant interim order. But before doing so we propose to give out reasons as the learned senior standing counsel for Union of India vehemently pressed for the same.

(2.) At the outset it may be mentioned that no interim order is granted by this court in either jurisdiction that is, writ or civil unless an application supported by an affidavit is filed and not only prima facie case is made out but balance of convenience is also found to be in favour of applicant,

(3.) The petitioner is a small enterpreneur engaged in activities of lami-native textile fabric and made fabric and duty paid paper. The proprietor of the firm claims to have certain textile industries for 36 years in Ethopia from where he came and invested his savings in building and construction work etc. It is claimed by petitioner that it was granted a lease on easy instalments by UP State Industrial Development Corporation, which also financed for purchase of machinery etc. It was also granted a licence in 1975. In October. 1932 it received a notice from Collector, Central Excise to show cause why penalty may not be imposed under Rules 9 and 170 of Central Excise Rules for contravention of Rules 9, 52-A, 173-B, 173-F. It was also called upon to show cause as to how goods falling under Tariff Item 17(2). Central Excise Tariff were cleared without payment of duty. After hearing petitioner the Collector. Central Excise levied a duty of approximately 2-50 crores and odd and also imposed penalty of Rs. 1,00,000/-. It was found that total turnover of petitioner exceeded Rs. 20 lacs and, therefore it was liable to pay excise duty According to petitioner the turnover no doubt exceeded Rs. 20 lacs vet no duty was leviable on it as under Notification No. 141/79 issued on 30th March 1979 it was clarified by Explanation 4 that for purposes of computing the aggregate value of clearance under notification, the clearance of any special goods which are exempted whole or part of the duty levied thereon by any other notification issued under Sub-rule (1) of Rule 8 of the aforesaid rules for the time being in force shall not be taken into account. The Collector. Central Excise did no! advert to this notification and if the value of the goods which were cleared after paying excise duty was excluded then the turnover of peti-tioner would come down below the exemption limit. It has been mentioned only to demonstrate that claim of petitioner that no excise duty was payable was not such as did not need any examination and therefore there was a prima facie case in favour of petitioner.