P.K.Jain, J. - (1.) These three writ petitions arise out of the order, dated 30-12-97 passed by respondent No.2 Commissioner of Central Excise, Kanpur-II and affirmed by respondent No. 1 in appeal by order, dated 29-8-2000. Common questions of fact and law are involved in all the three writ petitions. Hence, the same are being disposed of ,by a common judgment.
(2.) Brief facts giving, rise to the present writ petitions are that the petitioners are engaged in manufacture of bars and rods of mild steel from rol-lable and re-rollable old and discarded rails wheels, fishplates etc. purchased from railway auctions without melting the same. The petitioners are duly registered with the Central Excise Department. The petitioners were availing the benefit of Notification No.202/1988-CE., dated 20-5-88 as amended by Notification No. 33 of 1992-C.E., dated 1-3-1992 in respect of clearance of their final products. The claim of the petitioners is that in terms of the said notification MS. round bars were eligible for clearance at nil rate of duty if the same were manufactured out of rollable/re-rollable materials which are clearly recognizable as duty paid. The petitioners were served with a notice of demand-cum-show cause as contained in Annexure-2 to each writ petitions on the ground that the petitioners have cleared their end-products at nil rate during the period of August, 1992 to February, 1994 by availing the benefit of notification as aforesaid though the said notification was not applicable in their case. The petitioners were required to show cause to the Commissioner Central Excise, respondent No.2 as to why the amount as mentioned in the show cause be not recovered from them towards duty and as to why they may not be penalized for contravening the various provisions of the Central Excise Act and Rules framed thereunder. The petitioners filed show cause reiterating that they were entitled to the benefit of Notification No.202 of 1988-C.E., dated 20-5-88 as amended by subsequent Notification No. 33 of 1992-C.E., dated 1-3-92 as they were using unserviceable rails, fishplates etc. classifiable under Chapter 73 of the Central Excise Tariff Act, 1985 purchased in auction directly from the railways and consequently the duty paid nature of the said goods cannot be doubled. It was the case of the petitioners that the railway had paid excise duty at the time of purchase of the goods and after use of the same were auctioned in the same conditions as unserviceable goods. Any item which is duty paid does not become non-duty paid by mere prolonged use of the same. Respondent No.2 passed adjudication order as contained in Annexure-4 to each writ petitions holding that the petitioners did not correctly declare the nature and character of the inputs and they suppressed the facts and illegally claimed the benefit of exemption under the Notification. It was also held by respondent No.2 that the extended period of limitation could be invoked in the cases as the facts were suppressed and illegal claim of benefit of exemption under the Notification was made. Feeling aggrieved by the said order the petitioners filed separate appeals before respondent No. 1. The appeals were finally decided by respondent No. 1 vide order, dated 29-8-2000 issued on 3-10-2000 and served upon the petitioner on 10-11-2000. The order, dated 30-12-97 passed by respondent No.2 and the order, dated 29-8-2000 as affirmed by respondent No. 1 are sought to be quashed by issuing a writ of certiorari. Further prayer made is to issue a writ of mandamus directing the respondents to give benefit of the aforesaid notification.
(3.) Sufficient opportunity was afforded to the respondents to file counter affidavit but the same was not filed, Shri A.P. Mathur, learned Counsel for the petitioners had urged that counter affidavit in the present petitions was not needed as the Court was required to only interpret the Notification as aforesaid and only the question involved in the writ petitions is whether the railway has cleared the goods without payment of duty and the benefit of the Notification is not available to the petitioners. Agreeing with Sri A.P. Mathur the Court proceeded to hear the writ petitions.;