R.L. Gulati, J. - (1.) THE petitioner is a partnership firm. It had a factory for the manufacture of Mill Board situated at 126/45, I Block, Govindnagar, Kanpur. /According to the petitioner, it shifted the factory to 176B, Cooperative Industrial Estate, West Govindnagar Kanpur with effect from 1st July, 1964, where he installed some new machines in place of worn out machines which he had disposed of. The petitioner was holding a licence under the Central Excises Act in Form No. L -4. Under notification No. 35/64, dated 1st March, 1964, issued by the Government of India under the Central Excise, Act, the petitioner was entitled to clearance of 125 metric tonnes of Mill Board duty free as the petitioner's factory was established before the notification. The petitioner applied for the renewal of the licence in respect of the new premises and also claimed the concession under the aforesaid notification, dated 1st March, 1964. The Supdt, Central Excise, Kanpur refused the request of the petitioner to renew the licence and asked the petitioner to apply for a fresh licence making it clear that the petitioner will not be entitled to the concession in terms of the notification of 1st March, 1964. This action was taken by the Supdt., Central Excise, Kanpur, on the ground that the petitioner had sold away his original plant and machinery with all its accessories and equipments to another firm by the name and style of M/s. Goel Card Board Industries, Kanpur and as such the petitioner was not entitled to the renewal of the licence and was entitled only to apply for a fresh licence, because the factory set up by the petitioner was a new unit located in a new premises. On appeal this order was set aside by the Collector, Central Excise. Thereafter, the petitioner's licence was renewed and he was also allowed the exemption of 125 metric tonnes in view of continued. In the meantime, on 23rd Jan., 1967, the Senior Supdt, Central Excise, Kanpur, once again issued a notice to the petitioner requiring him to show cause why his licence should not be cancelled under Rule 181 of the Central Excise Rules, on the ground that the petitioner had shifted, the premises of the factory to a new place and it was not entitled to the concession of the notification dated 1st March, 1964. The petitioner filed a reply. While this matter was still pending, the petitioner was served on 7th of Nov., 1967, with another notice dated 4th November, 1967, from the Collector, Central Excise, Kanpur. This notice was also based on the same ground, namely, that the petitioner having sold the original factory had wrongly applied for and was granted an amendment of the licence. The petitioner was called upon to show cause why its licence should not be cancelled. The petitioner's objection was not accepted and by an order dated 8th May, 1968, the Collector, Central Excise, cancelled the petitioner's licence. The petitioner's appeal to the Central Board of Excise and Customs, New Delhi also failed. Its revision under Section 36 of the Act also did not succeed before the Government of India. The petitioners has now approached this court under Article 226 of the Constitution.
(2.) THE first question that arises is as to whether the Collector Central Excise, was competent to revise the order passed by his predecessor allowing the petitioner's appeal, This contention was raised before the Collector, Central Excise and he has disposed of this contention in the following words : - "This is not a case of review of earlier order as contended by the party, but fresh orders being issued in view of new facts that have come to light. It is evident from Bill No. 316, dated 1.7.61 that M/s. Khazanchi Paper and Board Mills Kanpur, have sold their factory to M/s. Goel Board Industries. Inspite of this they applied on 1.7.64 that their original licence may be amended to the extent that the premises have been shifted to 176 -B, Co -operative Estate, Kanpur, thereby violating condition No. 4 of the L. 4 licence mis -declaring the facts". It is true that the case of the petitioner was that he had merely shifted his factory from Govindnagar to the Cooperative Industrial Estate after having disposed of the old and worn out machines. But the authorities had been misled by this statement. This is dear from the order of the Supdt., Central Excise, dated 22nd March 1955 whereby he rejected the petitioner's application for renewal of licence. In paragraph 2 of that order he states : - "I am convinced from my personal Inspection of your factory premises on 12.2.65 and also the various documents produced before me by M/s. Goel Card Board Industries, Govindnagar, Kanpur that you have already sold away your original plant and factory will all its equipments in their entirety to M/s. Goel Card Board Industries. My inspection as such has revealed the following facts beyond any shadow of doubt, (i) you had received an amount of Rs, 2,0001/ - as sale proceeds in respect of your original factory with all its equipments and machineries, from M/s. Goel Card. Board Industries vide your voucher No. 318, dated 1.7.64. (ii) Even in respect of the residential balance of paper board lying in the said factory on the date of the above transaction (sale) you had received an amount of Rs. 500/ - from the purchasing party namely M/s. Goel Card Board Industries. (iii) My physical inspection of your original factory at Govindnagar clearly showed that M/s. Goel Card Board Industries have, since then, been the sole owners of the factory, the ownership having come to them consequent on your transfer thereof through sale. This position is further confirmed by the fact that the monthly rent of the premises as well as the electric metre charges are being borne by the new owners, namely, M/s. Goel Card Board Industries. (iv) My inspection of your proposed factory 176 -B, Cooperative Estate, Kanpur clearly revealed that a new factory was being constructed by you and that there was nothing like any paper Board manufacturing machinery or plant or even its equipments (except some broken parts lying scattered here and there) in the proposed factory premises. In the context of these facts, the conclusion is irresistible that you are setting up a new unit in the new premises at Cooprative Estate and that you are still now making strenuous efforts to collect new plants and machineries for installation in the new factory."
(3.) THUS it is clear that the facts now relied upon by the Collector that the petitioner had sold its factory under Bill No 319, dated 1.7.64 is not a new fact. It was known to the Department and clearly mentioned in the order of the Supdt., Central Excise, quoted above. In the circumstances it cannot be said that the Collector was authorised to review the earlier order on the basis of new facts.;