B.P. Banerjee, J. - (1.) In this writ application the Petitioners have challenged the notice for assessment and the orders of assessment contained in Memo. No. III -R -I/66 -67/1017 M.T. dated August 30, 1984, being annexure 'C hereto. Memo No. III -R -I/66 -67, Part File/1326 M.T. dated October 19, 1984, being Annex. I hereto, Memo No. III/R -I/1966 -67/1503/M.T. dated January 10, 1985, being Annex. 'F' hereto and Memo No. III -R -I/66 -67/263/M.T. dated May 26, 1986, being Annex. 'O' hereto respectively all issued by the Deputy Commissioner of Excise (Special), West Bengal.
(2.) The case of the Petitioner is that the Petitioner No. 1 is the manufacturer, inter alia, of 'Aguru' which is manufactured with rectified spirit at the non -bonded manufactory of the Petitioners under licence being licence in form No. L -2 under Medicinal and Toilet Preparations (Excise Duties) Act, 1955, issued by the Commissioner of Excise, West Bengal, the Petitioner also manufacturer, inter alia 'Sindur', Soap and other non -excisable articles under the State Excise Laws. It is stated that the product of 'Aguru' manufactured by the Petitioner No. 1 is used as offerings in worship of Hindu deities. The labels used on the product 'Aguru' containers and also the advertisement issued by the Petitioner company speak in unambiguous language the use of the product. The excise authorities caused an enquiry and inspection held with regard to the manufacture and use of the said product at the manufactory on December 15, 1983, and December 20, 1983, respectively and found that the alleged wastage of 1785.2 Bulk Litres, i.e. 2856.32 London Proof Litres of rectified spirit during the period from May 20, 1981, to November 24, 1983, and found some other alleged irregularities as mentioned in the inspection report. The Deputy Commissioner of Excise (Special), Excise Directorate, Government of West Bengal, on the basis of the said inspection report issued a notice on August 30, 1984, directing the Petitioner to explain in writing as to why duty as mentioned in the said notice and penalty of Rs. 1,000 should not be levied under Sec. 3 of the Medicinal and Toilet Preparations (Excise Duties) Act read with Rule. 7(b) of the Medicinal and Toilet Preparations (Excise Duties) Rules and Rules 35(2) and 132 of the Rules framed under the said Act. It is stated that the product 'Aguru' is not manufactured in bond and is not a preparation for use for human consumption. From the said show -cause notice it is evident that the Deputy Commissioner of Excise (Special) assessed the duty of Rs. 1,52,690.72 p. at the rate of Rs. 61.00 p. per London Proof Litres of rectified spirit on total alleged wastage of rectified spirit. Simultaneously a Misc. case No. 4 (M.T.) of 1984 -85 under Memo No. 1016(M.T.) dated August 30, 1984, was started against the Petitioner company.
(3.) Against the said show -cause notice, the Petitioner company made a representation which was submitted on September 10, 1984, stating that the said wastage had complaint of, was due to normal course of business and/or in the process of manufacturing of 'Aguru'. It was further stated that the said wastage was due to the reasons beyond the control in the process of manufacture.;