N.D.Ojha, J. - (1.) The petitioner is manufacturing medicinal preparations including Pudin Kara. It made an application to the State Government of Uttar Pradesh for permission to manufacture Pudin Hara in the State of Uttar Pradesh. By letter of the year 1979, a copy whereof has been filed as Annexure 4 to the writ petition, the Excise Commissioner informed the Collector, Ghaziabad, that the petitioner had been granted permission to prepare certain medicines, inter alia, subject to the condition that it shall supply samples as contemplated by Rule 60(3) of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956, hereinafter referred to as "the Rules". Its copy was forwarded to the petitioner also. It further appears that the petitioner brought it to the notice of the Excise Commissioner that it had been manufacturing Pudin Hara from before 1st April, 1957 and consequently as contemplated by Sub-rule (1) of Rule 60 of the Rules Pudin Hara was to be considered to be an unrestricted preparation. The Excise Commissioner by his letter dated May 16, 1979, a copy whereof has been filed as annexure 6 to the writ petition, permitted the petitioner to pay duty on the basis of the aforesaid representation that Pudin Hara was being manufactured from before 1st April, 1957, treating it to be unrestricted medicine. It was, however, specifically stated in that letter that the decision as to whether Pudin Hara was to be placed in the category of restricted or unrestricted preparations, shall be decided subsequently. By an order dated 1st June, 1985, a copy whereof has been attached as annexure 7 to the writ petition, the Excise Commissioner, U.P. required the petitioner to pay duty on the basis that the Pudin Hara was a restricted preparation on the ground that the components of the Pudin Hara which was being manufactured by the petitioner within the State of Uttar Pradesh from the year 1978-79 were different from the components of the Pudin Hard prepared by it presumably in West Bengal from before the said date. Apparently, the view taken by the Excise Commissioner was that the components of Pudin Hara, which was being manufactured in the State of Uttar Pradesh since 1978-79, being different, it could not be said that this Pudin Hara was being manufactured by the petitioner from before 1st April, 1957 so that it may be treated as unrestricted medicine within the meaning of Sub-rule (1) of Rule 60 of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. It is this order which has been challenged in the present writ petition. Counter and rejoinder affidavits have been filed.
(2.) Both the respondents to the writ petition are represented by the Standing Counsel and there is no private party to be served. On the facts of the instant case we are of the opinion that this writ petition deserves to be finally decided at this very stage as contemplated by the second proviso to Rule 2 of the Second Chapter of the Rules of Court. We have accordingly heard the Learned Counsel for the petitioner and the Standing Counsel on the merits of the writ petition;
(3.) One of the pleas raised in the present writ petition is that the impugned order dated 1st June, 1985, was passed by the Excise Commissioner without giving the petitioner any opportunity of hearing and thus being in violation of the rules of natural justice is liable to the quashed on this ground alone. The necessary averment in this behalf is contained in paragraph 35 of the writ petition. The reply to this paragraph of the writ petition is contained in paragraph 30 of the counter affidavit of Sri K.C. Bhandari. What has been stated in paragraph 30 of the counter affidavit is that in view of the facts stated in the proceeding paragraphs issue of show cause notice was not necessary for the claim made under Rule 11. Reference to Rule 11 in the counter affidavit is obviously to Rule 11 of the Rules. Rule 11 of the Rules reads as follows :-11. Recovery of duties or charges short levied or erroneously refunded.--When duties or charges have been short levied through inadvertence, error, collusion or misconstruction on the part of an excise officer, or through misstatement as to quantity or description of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been, owing to any such cause erroneously refunded, the person chargeable with the duty or charge, so short levied, or to whom such refund has been erroneously made, shall pay the deficiency or repay the amount paid to him in excess, as the case may be, on written demand by the proper officer being made within six months from the date on which the duty or charge was paid or adjusted in the owner's account-current, if any, or from the date of making the refund.;