MADHUMILAN SYNTEX LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner No. 1 is a Company manufacturing spun yarn, an excisable item under the Central Excises and Salts Act, 1944 (hereafter referred to as 'the Act'). The petitioner No. 2 is the Managing Director of the petitioner No. 1 Company. In this petition a show cause notice dated 1 -5 -1992 issued by the Assistant Collector, Central Excise, Ujjain is under challenge. Earlier a petition (Misc. Petition No. 512/90) was filed in this Court, which was disposed of on agreed terms.

(2.) IMMEDIATELY after the aforesaid case was disposed of on 25 -4 -1992, on 1 -5 -1992 the Assistant Collector Excise, Ujjain issued the impugned show -cause notice. The observations made in Misc. Petition No. 512/90 were referred to in the show cause notice and petitioner were called upon to show cause as to why amendment to classification list No. 4 of 1987 with effect from 25 -7 -1991 should 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.) THE petitioners have immediately rushed to this Court with this petition, which is filed on 12 -5 -1992 challenging the show cause notice itself. The complaint is that though this Court in Misc. Petition No. 512/90 directed the Assistant Collector to act independently and impartially without pre -occupied notions and on the basis of the material on record, he has not applied his mind independently and impartially and have issued in fact the final order under the garb of the show cause notice. It is alleged that in substance the show cause notice is nothing but a final order issued in the form of show cause notice. It is alleged that the Asstt. Collector had already concluded that the modification of the classification list was necessary and taking it for granted, he has also proceeded to recover the duty, which is evident from Annex. A - to the show cause notice, 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.