MARSDEN SPG CO LTD Vs. L V POL SUPDT CENTRAL EXCISE TEX AHMEDABAD

JUDGEMENT

(1.) In this petition under Art. 226 of the Constitution the petitioner has prayed for an appropriate writ or order to quash the fresh notice of demand for excise duty dated November 13 1961 issued by the Superintendent of Central Excise after the disposal of the petitioners appeal.

(2.) The petitioner-Mills-company owns a cotton textile mill at Ahmedabad. The petitioner was served with a notice dated February 23 1960 to show cause why penalty should not be imposed for contravention of rule 226 of the Central Excise Rules 1944 (hereinafter referred to as the rules) on the ground that it had not written correct accounts in R.G. 1 register and that the said R. G. 1 record and the folding reports of cloth folded in the mills disclosed variations as per the details supplied in the said notice. The mills-company in its explanation dated March 2 1960 explained the said variation on the ground that 63452 length yards being not properly processed were sent for rebleaching and refolding and they had got mixed up with other processed goods and were again brought over the folding department and so the folding reports were made twice over by the folders. It also produced all its relevant books to show how the mistake had occurred. Respondent No. 1 who is the Superintendent of Central Excise by his decision dated April 16 1960 came to the conclusion that the mills-company had not satisfactorily accounted for the variation of 63452 length yards and taking all the facts into consideration he held the mills-company guilty of the offences with which it had been charged and by his order of the same date he imposed a penalty of Rs. 100/for breach of rule 226 for writing incorrect account in R. G. I and he also demanded duty amounting to Rs. 7298.51 nP. under Rule 9(2) of the Central Excise Rules 1944 on 63452 length yards which were not accounted for. The mills-company filed an appeal on July 7 1960 and the Deputy Collector of Central Excise who heard the said appeal passed the following order on Nov. 2 1960:-

(3.) After concluding the said order there was a further post-script dated November 5 1960 to the effect that by registered post A. D. a copy was sent to the petitioner-mills-company. It was also mentioned in the said order that any person aggrieved by that order could prefer a revision application to the Central Government under sec. 36 of the Central Excise and Salt Act 1944 (hereinafter referred to as the Act) as early as possible but not later than within 180 days from the date of the receipt of that order and that the application should be accompanied by a copy of the said order. Thereafter another notice was issued to the mills-company on December 30 1960 by respondent No. 1 on the same ground of variations between R. G. 1 record and the folding reports to the extent of 63452 yards. But this time the mills-company was asked to show cause why penalty should not be imposed under rule 226 and why duty should not be demanded under rule 9(2) of the rules. After the letter of the mills-company dated January 10 1961 respondent No. 1 cancelled the said notice and issued a fresh notice which is the impugned notice on January 13 1961 on the grounds that there were variations between the R. G. 1 records and the folding reports to the extent of 63452 yards and that the mills company had contravened rule 9(2) of the rules inasmuch as it had removed the quantity shown therein and therefore the mills-company was asked to show cause against the penalty under rule 226 and for the duty demanded under rule 9(2). The petitioner mills-company has challenged the said notice dated January 13 1961 on the ground that it was without jurisdiction as the appellate order was passed on merits and had become final and in the absence of any remand order respondent No. 1 could not legally issue any such notice on the same grounds of the presumption of clandestine removal on the basis of the variations shown between R. G. 1 records and the folding reports on which ground the petitioners appeal was already allowed. The stand of respondent No. 1 in his affidavit is that the Deputy Collector of Central Excise had by his order directed him to adjudicate the case de novo as rule 9 was not included in the show cause notice and the party was not given an opportunity to be heard on that important point. He has produced a copy of the order received by him dated November 5 1960 which also contains a post-script as under:-