A.P.Misra, J. - (1.) In view of the exchange of affidavits, the present petition is being disposed of finally at the stage of admission in accordance with the Rules of the Court.
(2.) We have heard the learned counsel for the parties. The petitioner seeks quashing of notice dated 3rd August, 1990/3rd November, 1990 (Annexure 13 to the petition) and further the demand notice dated 12th September, 1990, 21st September, 1990 with corrigendum dated 15th October, 1990 (Annexures 14, 15 and 16 respectively to the writ petition). According to the case of the petitioner since last 20 years, the Government of India has been giving exemption from Central Excise Duty under Rule 8(1), Central Excise Rules, 1944 by issue of notification in order to boost the production of the SSI units. The notification was issued time and again in the past. The petitioner has started its production since 13th March, 1984 and the relevant concessional notification applicable to the petitioner-unit then was Notification No. 83/83-C.E., dated 1st March, 1983. Similarly, for the subsequent year 1984-85 it was covered by Notification 85/85-C.E., dated 17th March, 1985. Thereafter, on 1st March, 1986, Notification No. 175/86-C.E. was issued granting exemption to certain excisable goods specified therein. The petitioner continued to claim exemption even under this notification. Thereafter, by notification dated 30th October, 1987, the aforesaid 1986 notification was amended whereby only the units producing specified goods in the factory and registered with the Director General Technical Development were excluded from the purview of exemption from excise tariff. On account of this, the petitioner started paying full excise duty in the year 1988-89 and filed classification list accordingly. This was according to the petitioner, on account of wrong interpretation given by the Superintendent, Central Excise who duly informed the petitioner's representative that the petitioner is not entitled to claim exemption/concession in view of the 1987 notification. However, realising this mistake later on 7th October, 1989 the petitioner immediately filed the revised classification list on 8th October, 1989, claiming exemption under the aforesaid notification dated 1st March, 1986, as amended till that date. Even this classification list, submitted by the petitioner, was duly approved by the respondent No. 2 after detailed investigation and inquiry on 30th April, 1990. Even for Assessment Year 1990-91 the petitioner continued to pay concessional excise duty claiming exemption/concession under the aforesaid 1986 amended notification. However, Assistant Collector, Central Excise, served upon the petitioner a show cause notice dated 31st August, 1990/30th September, 1990 as to why classification list effective from 8th October, 1989, and 1st April, 1990, which was submitted by the petitioner and approved by the respondent No. 2 under Rule 173B cannot be modified. The notice does recite that the classification lists were got approved by the petitioner by misrepresentation of fact. The case of the petitioner is that at no stage there was any misrepresentation of fact by the petitioner in getting the lists of goods approved as aforesaid nor there is anything stated even in the show cause notice, and thus the show cause notice is without jurisdiction. The respondent authority can only recall, modify or cancel the approved list only on the ground of misrepresentation, concealment or fraud and that not being his case, the impugned notice is without jurisdiction.
(3.) On behalf of the respondents, it has been contended that the show cause notice was rightly given to the petitioner as petitioner was not entitled for any benefit of Notification No. 175/86-C.E., dated 1st March, 1986 after its amendment vide Notification No. 174/89-C.E., dated 1st September, 1989, and therefore they are required to pay full rate of duty from 1st September, 1990, onwards. Even in the counter-affidavit it has been averred that the classification was approved by the respondent on the basis of information filed by the petitioner. However, since the petitioner is not entitled for any benefit under the aforesaid notification as amended and thus benefit granted to the petitioner earlier is rightly being recalled. They have also stated, in fact, the show cause notice has given to him an opportunity and thus there is no question of any violation of principles of natural justice.;