TaxTMI 
TaxTMI 
1993 (9) TMI 128
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....xcise duty? Can this question be determined in a writ petition? Learned counsel for the parties have referred to the facts as averred in Civil Writ Petition No. 10438 of 1989 only. These may be briefly noticed. 2.The petitioner is a private Limited Company. It has set up a small Scale Unit for the manufacture of "conduit pipes with Electrical Resistance Welding Process....". It is averred that the petitioner manufactures pipes by using Hot Rolled Strips/flats which it purchases from different mills situated at Mandi Gobindgarh. The strips/flats are passed through rollers which give them a round shape and when passed through welding units, the finished product called the conduit pipes, is produced. It is the case of the petitioner that it uses strips' flats having a thickness of less than 3 mm. and a width of 75 mm. to 182 mm. The Unit came into production on May 27, 1988. 3.On August 9, 1989, respondent No. 3, the Superintendent, Central Excise Range I, Patiala, visited the factory premises of the petitioner. He passed an order on the same day which reads as under :- "Please refer to my visit in your unit on 9-8-1989. You are hereby requested to apply for C.E. Licence i....
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....y. In support of this averment, the respondent has relied upon the photo copies of the two gate-passes produced by the petitioner as Annexure P. 5 and P. 6 with the writ petition which show that it had purchased bars below 3 mm. in thickness from A.K. Steel Industries, Gobindgarh. The averment of the petitioner that it had been directed to pay the difference of Rs. 200/- per m.t. by respondent No. 3 has been denied. On these premises, it has been claimed that the petitioner is not exempt from payment of excise duty and that the order passed by the respondent is legal and valid. 6.The petitioner has filed a replication. The averments made in the petition have been reiterated. It has been further averred that "the petitioner is manufacturing pipes and tubes by Electrical Resistance Welding (for short ERW process) and by this process pipes and tubes can only be manufactured from flat rolled products. Pipes cannot be manufactured from bars. This position has been accepted by the Central Excise department in their written statement, with which they had attached Annexure R-3, filed in CWP No. 7747 of 1989......". Reference has also been made to the orders passed by the Central Excise ....
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....e terms and conditions of a licence granted under the Act. Is the petitioner engaged in the production or manufacture of specified goods? 12.The tubes and pipes of steel manufactured by the petitioner are included in Chapter 73 of the Central Excise Tariff. The rate of Excise duty has also been prescribed. Consequently, in accordance with the provisions of Section 6 and Rule 174, the petitioner is manufacturing an excisable goods and is, thus, liable to obtain a licence. The petitioner, however, claims that it has been granted exempted vide notification dated May 20, 1980 by the Finance Ministry. It is apt to notice the relevant part of this notification which reads as under :- ****** 13.A perusal of the above notification shows that a manufacturer of tubes and pipes can claim exemption if :- the goods have been produced by using Skelp, hoops, sheets,(i) strips and flats of thickness not exceeding 5 mm; the final products are made from goods on which the duty of(ii) excise leviable under the said Schedule or the additional duty leviable under the Customs Tariff Act, 1975 (51 of 1975) as the case may be, has already been paid; and no credit of the duty paid on the ....
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....; * A perusal of the above provisions shows that it relates to the recovery of duty which has not been levied or paid. It has no connection with the grant of a licence. It is, consequently, not attracted to the facts and circumstances of the present case. Mr. Sawhney, however, placed reliance on Gokak Patel Volkart Ltd. v. Collector of Central Excise, Belgaum, 1987 (28) E.L.T. 53 (SC) = AIR 1987 SC 1161 and Union of India & Ors. v. Medhumilan Syntex Pvt. Ltd. & Anr., 1988 (35) E.L.T. 349 (SC) = AIR 1988 SC 1236. Neither of these cases has any application to the facts of the present case. In Gokak Patel's case, it was inter alia held that the issue of a notice is a condition precedent to the raising of a demand under Section 11A(2). Similarly, in Madhumilan Syntex's case, it was held that before any demand was made on any person in respect of "non-levy or short-levy or under payment of duty, in notice requiring him to show cause why he should not pay the amounts specified in the notice, must be served on him. In the present case, no demand whatsoever had been made for payment of any amount of money. The petitioner had only been called upon to o....