Decided on July 26,1983

Standard Due Chem Appellant
UNION OF INDIA Respondents


B.K.MEHTA, J. - (1.) SINCE the only question which survives for our decision is a limited one, we need not trace elaborately the facts which have led to this petition. The question which has become limited for purposes of this petition is on account of the decision of the Government of India in Re : Western Bengal Coal Fields Ltd. as contained in Order -in -Revision No. 270 of 1982, dated 26.4.1982, where the Union Government has held, while allowing the revision of the assessee, that the product which the said assessee was manufacturing, namely, Phenol Formaldehyde moulding powder was a product which was entitled to the benefit of the exemption notification No. 122/71 as Phenolic Resins. In order to appreciate, however, the final directions which we are inclined to issue in this matter, a few facts need be noticed.
(2.) PETITIONER No. 1 is a partnership firm manufacturing Phenol formaldehyde moulding powder since 1970 in lump, solid or liquid form. The petitioners contended that their product is Phenolic Resins. Prior to June 1, 1971, this product was excisable under Tariff Item No. 15 -A of the Central Excise Tariff read with Notification of the Government of India dated September 23, 1965. On June 2, 1971, the Union Government issued exemption notification No. 122/71 under which the excise duty was leviable at 15% of the value of the product, namely, Phenolic Resins. By a further notification No. 127/73 dated June 9, 1973, the rate was raised to 18% but this was again reduced to 13.5% by notification No. 49/76 dated March 16, 1976. The excise authorities took out sample product of the petitioners on November 3, 1972 and Chemical Analyser gave report on March 20, 1973 that it was not blended with artificial or synthetic resin and, therefore, it was Phenolic resin. It is claimed by the petitioners that respondent No. 3, herein, who was the Superintendent of Central Excise at Surat at all the relevant times, decided on July 21, 1973 that the product is Phenolic resin and entitle to concessional duty as admissible under notification No. 122/71. The petitioners were asked to file revised price list vide letter of the third respondent dated August 23, 1973 and the petitioners have, in response to the said letter, filed revised price list on September 11, 1973. The petitioners claimed refund of the amount in difference between the duty charged and the duty leviable, which was admittedly at the concessional rate as admissible under the exemption notification. Inspite of the opinion of the Chemical Analyser of the Central Excise Department, the excise authorities issued three show cause notices two of which were dated October 26, 1974 and the third one dated February 3, 1975 calling upon the petitioners to show cause why the amount refunded to them under the exemption notification should not be recovered and subjected to excise duty at 40% ad valorem. The petitioners filed their replies to the aforesaid three show cause notices contending, inter alia, that there was no material before the excise authorities to effect a change in their stand which they had hitherto taken conceding the claim of the petitioners and praying for the reasons which weighed with the authorities for the change in the opinion. Since this request for furnishing the reasons was not complied with, by Special Civil Application No. 764 of 1976, the petitioners were compelled to move this court by appropriate writ, order or direction quashing and setting aside the three show cause notices. A Division Bench of this court, consisting of Obul Reddi C.J. and D.P. Desai, J, (as they then were), by its order of June 22, 1977 - 1980 ELT 181 (Guj.) upheld the grievance of the petitioners that the excise authorities erred in law in calling upon the petitioners to pay back the amount refunded to them being the amount of duty at the concessional rate admissible under the relevant notification applicable and the duty at the rate of 40% as prescribed under the relevant tariff entry in the schedule since the grounds on which the show cause notices were issued did not disclose the grounds. The Division Bench, therefore, made the following order on the said special civil application : 'We, therefore, quash the three show cause notices as also the order on the application of the petitioners dated March 5, 1976 asking for refund of differential amount of excise duty on Phenolic Moulding Powder. The respondent would be at liberty to issue fresh show cause notices disclosing the grounds on which they propose to levy excise duty at 40 per cent ad valorem. That the same can be issued by them only in accordance with law and on fresh evidence or material then in existence with the department. If they do not choose to exercise their right to issue fresh show cause notices within three months from today, the petitioners would be entitled to the refund of the excess amounts collected from them'.
(3.) IT appears that after this order was made by the Division Bench in June, 1977, three fresh show cause notices were issued on September 20, 1977. It further appears that in those fresh show cause notices, only one additional fact is mentioned than those set out in the earlier show cause notices which were quashed and set aside by this Court, namely, the statement of the petitioners in their two letters dated November 1, 1972 and December 5, 1982 stating, inter alia, as to what was precisely the manufacturing process and to what industrial use the product was put to. The petitioners had by their letter dated October 3, 1977 called upon respondent No. 3 to furnish them with any fresh material or evidence in the possession of the Department so as to enable the petitioners to show cause effectively, Respondent No. 3, by his letter of November 17, 1977, intimated the petitioners that the show cause notices in question were self -explanatory and there was no question of any additional evidence or material to be furnished to the petitioners as requested by them. The petitioners have, therefore, moved this Court again by the present special civil application for appropriate writ, order and direction quashing and setting aside the said show cause notice.;

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