COLLECTOR OF CENTRAL EXCISE Vs. INDIAN CABLE CO LTD

JUDGEMENT

(1.) WHEN these two cases were called out, Shri M.N. Biswas, learned SDR was present on behalf of the appellant Collector. However, none representing the respondents M/s. Indian Cable Co. Ltd. Golemuri, Jamshedpur was present. We found that a notice communicating the date of hearing of the appeal today had been issued to the respondents on 20th September, 1989. As sufficient time had been allowed to the respondents informing them about the hearing of the appeal today and as no request had also been received from them for an adjournment, we proceed to dispose of these appeals. As a common issue is involved in both these appeals and the difference is only that these two cases relate to assessment of two months viz. May, 1984 and June, 1984, we pass a common order relating to both these appeals.

(2.) These two appeals are filed by the Collector of Central Excise, Patna against the orders passed by Collector of Central Excise (Appeals). By his impugned order, the Collector of Central Excise (Appeals) had allowed the appeals filed by the present respondents and set aside the assessment order passed the Superintendent of Central Excise on the RT-12 return without prejudice to his right to redetermine the case afresh in accordance with the law and after observing the principles of natural justice. The Superintendent had, while assessing the RT-12 raised a demand for the amount of duty short paid by the assessee as seen from the RT-12. He had carried out the assessment of RT-12 in terms of Rule 173I of the Central Excise Rules, 1944. Aggrieved with the action taken by the Superintendent in issuing a demand while completing the RT-12 return the respondent to this appeal approached the Collector (Appeals) contending in their appeal that before raising the demand the Superintendent did not issue any show cause notice and did not give any personal hearing to represent their case. It was also alleged that the said demand was made without following the rules and the principles of natural justice. These contentions found favour with the Collector (Appeals) who observed that for the failure of natural justice, the order appealed against could not be sustained in law. He relied upon the decisions of the Supreme Court in the case of East India Commercial Co. v. Collector of Customs (1983 (13) E.L.T. 1342) and the judgement in the case of Smt. Maneka Gandhi v. Union of India, as also the judgment of Kerala High Court in the case of Good Shephered Rubber Co. v. Inspector of Central Excise (1978 (2) E.L.T. J-66) and the Calcutta High Court judgement in Hindustan Pilkington Glass Works Ltd. v. Supdt. of Central Excise (1978 (2) E.L.T. J-229).

(3.) IT is submitted by the Collector that a plain reading of the rules itself would reveal that under this rule the service of show cause notice by the Superintendent before completing the assessment in RT-12 is not required at all. He has relied upon a decision of the CEGAT, Southern Regional Bench in Collector of Central Excise, Bangalore v. Karnataka Scooters Ltd. in Appeal No. ED(MAS) 73/83 decided on 4.4.1983 -1987 (31) ELT 536 (Tri.). IT was held by the Southern Regional Bench in this order that for an action under Rule 173I, there is no need for issue of formal notice. IT was contended by the learned Collector that the Order-in-Appeal passed by Collector (Appeals) ignoring this legal position and setting aside the assessment order is incorrect. He has distinguished the cases relied upon by the Collector (Appeals) from the facts of the present case and pointed out that in the cases which were relied upon by the Collector (Appeals) it was incumbent upon the department to issue a notice to the appellant. The action proposed was for imposition of penalty and confiscation of goods. In such case a notice was a must as well as the opportunity to be heard. In the present case of demand for duty short assessed by the assessee himself there was no proposal to penalise him.