- (1.) This writ petition is directed against the show-cause notice dated 21st May 1983, issued by the Superintendent, Central Excise, Range II, Varanasi to the petitioners. Under this notice the petitioner is called upon to show cause as to why he should not be required to pay an amount of Rs. 20,88,111.02 towards the duty short-paid. The period for which this duty is demanded is December 1978 to 31st March 1983. The reasons, for which the show-cause notice is given, are mentioned 1 in annexure-A to the show cause notice. Annexure-A recites: During the period from Dec. 1978 to March 1983 they knowingly and deliberately suppressed the material facts for the correct classification of their and product "Electrical Resistance wires" under tariff item No. 33(B)(ii) and continued to pay duty on their product wrongly under tariff item No. 26-AA at the much lower rate than the rate; actually they required to pay duty under tariff item No. 33(B)(ii); consequently they have made short payment of duty to the tune of Rs. 20,88,111.02 as per details given in annexure 'B' (enclosed) which they are required to pay. The above duty is recoverable from them under Section 11-A of Central Excises and Salt Act, 1944.
(2.) Though this writ petition prays for quashing the said notice, it is evident that the writ petition is in the nature of a writ of prohibition. Such a writ petition lies only where total want of jurisdiction is made out.
(3.) Sri Sudhir Chandra, learned Counsel for the petitioner, has urged the following two contentions: (1) That the notice is ex facie bad inasmuch as 'Electrical Resistance Wires' can by no stretch of imagination fall within item 33(B)(ii). He says they squarely fall within item 26-AA(1)(a). In support of this argument the learned Counsel relies upon the Explanation to item 33-B. Learned Counsel also relies upon the Schedule to 1985 Act in particular item 72.13 in Chapter 72. (2) That the notice is vague in as much it does not give the particulars and facts in support of the allegation of suppression of material facts levelled against the petitioner. The notice is liable to be quashed on this ground, says the counsel.;