Gulati, J. - (1.) THE petitioner is private limited company carrying on the business of manufacture and sale of paints and varnishes at Kanpur. The paints and varnishes manufactured by the petitioner company are liable to excise duty under Central Excises and Salt Act, 1944 (hereinafter referred to as the Act), under Item No. 14 of the Central Excise Schedule. In the manufacture of these articles the petitioner uses processed vegetable non -essential linseed oil (hereinafter referred to as V.N.E, Oil). This oil is also liable to Central Excise Duty under Item No. 12 of the Centra? Excise Schedule. The oil is first converted into Aikyd Resin (Synthetic Resin) which, in its turn, is utilised for manufacturing paints and varnishes. This Alkyd Resin is also an excisable article. Under Rule 56A of the Central Excise Rules if duty paid material or component parts are brought in for the manufacture of finished excisable goods, a pro forma credit is granted to the extent the duty has already been paid on such material or component parts and it is adjusted against the excise duty leviable on the finished product. Obviously this Rule has been inserted to avoid double taxation, once on the component parts and again on the finished products. In order to avail of this concession, an application has to be made to the Collector, Central Excise, The petitioner company made such an Application in respect of the duty paid V.N.E. Oil to the Collector, Central Excise, Kanpur, who by this order dated 25 -3 -63 granted the exemption, which was communicated to the petitioner in the following words : - "Please be advised that the Collector of Central Excise, Kanpur, has been pleased to accord his permission to avail of the concession permitted under Rule 56A. of Central Excise Rules, 1944, to you." Since then the petitioner has been availing of the concession in respect of V.N.E. Oil used in the manufacture of paints and varnishes suddenly without any warning or notice the petitioner company was served with two notices of demand dated 1 -12 -1969 and 31st March, 1970 for Rs.7,957.98 and Rs. 7.849.45 respectively. The notice of demand dated 31st March, 1970 was for the period from 1963 -64 to 1965 -66 and the other Notice of demand dated 1 -12 -1969 was for the period 23 -9 -1965 upto the date of the issue of the notice of demand, namely, 1 -12 -1969.
(2.) ON receiving these two notices of demand the petitioner made two representations to the Assistant Collector, Central Excise, Kanpur, those Representations were forwarded to the Superintendent, Central Excise, S.R.P. IV. Kanpur. for adjudication. That authority without giving any notice to the petitioner or affording any opportunity to explain its case, rejected the representations by the following order dated 18th June, 1970 : "The demand was raised when it was discovered that they have availed of pro forma credit on quantities of processed V.N.E. Oil used in the manufacture of synthetic resins without proper permission from the competent authority. The factory was permitted to avail of pro forma credit on materials used in the manufacture of paints and varnishes, but they do not possess any such permission for synthetic resin for the manufacture of which the party holds a separate licence". The party, therefore, is not entitled to avail of pro forma credit on the processed V.N.E. Oil used in the manufacture of Synthetic resins." Against these order the petitioner filed two Appeals as provided in Section 35 of the Act. The period of limitation for an Appeal under Section 35 is 180 days from the date of the receipt of the order. The Appeals were filed on 5th of July, 1971, after the expiry of the period of limitation. The Deputy Collector, Central Excise, Kanpur dismissed the Appeals on the ground that they were barred by time. The appellate authority also did not send any notice of hearing to the petitioner. Thereafter the petitioner filed two revision petitions to the Central Government under Section 36 of the Act. In the revision petitions the petitioner explained the reason for filing the appeals late. It was stated that the matter of excise duty was being dealt with by their General Manager and power of Attorney -holder, Shri Krishna Kapoor, who had the relevant file with him. On 15th September, 1970 the said Shri Kapoor got a sudden attack of myocordic in faction and remained in bed from 15th September, 1970 to 31st December, 1970. A medical certificate to this effect was also enclosed. The Joint Secretary to the Government of India in the Ministry of Finance, dismissed the two revision petitions by a consolidated order dated 9th February, 1973, on the ground that the Appeals were filed late and the "Petitioners have not adduced any evidence as to why the Appeal was not filed within the prescribed Time". This Order was also passed without any notice to the petitioner. The petitioner has now approached this Court under Article 226 of the Constitution.
(3.) TWO contentions have been raised on behalf of the petitioner, (1) that the levy of the impugned excise duty is wholly unauthorised under the law and (2) that the demand of excise duty is time -barred. The authority which raised the demands did not pass any order. It merely issued two notices of demand. On the representations of the petitioner the Superintendent, Central Excise, Kanpur, passed an order which has already been extracted above. This order also does not indicate the provision under which the same has been passed. But in the Counter -Affi -davit the order is sought to be justified under Rule 56H(3)(a) read with Rule 10A and Rule 56A(3) as it stood at the material time read': - * * * *;