TaxTMI 
TaxTMI 
1964 (7) TMI 7
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....good finance in my business. The Calcutta Electric Supply Co. has disconnected and sealed my meter on 30-4-1962 (a.m.) on our request. So, we request you kindly to visit our factory and after necessary inspection please permit us to start our factory on hand driven in our licence premises. In this connection we are to state that if we like to switch over the factory to power driven again during this year, we will inform you at least 15 days before the commencement of the same." On July 21, 1962, the petitioners say, the factory premises of the petitioners was searched by a raiding party from the Central Excise Department and the books of account of the petitioners were seized. Thereafter, the respondent No. 2 - Assistant Collector, issued a notice, dated September 25, 1962 by registered post, addressed to the firm name of the petitioners. The material portion of the said notice reads as follows : "Whereas it appears that M/s. Howrah Proofing Co. of 113/1, Shri Arabindo Road, Salkia, Howrah, holding L4 licence No. 1 (CF)/59, have contravened the provisions of Rules 9, 52A & 53 of the Central Excise Rules, 1944, inasmuch as they manufactured in their processing factory a ....
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.... July 12, 1962. The petitioners made a representation, dated October 22, 1962, before the respondent No. 1 Collector, both against the notice to show cause and the notice of demand, praying for withdrawal and cancellation of the demand. The respondent-Collector heard the Counsel engaged by the petitioners, over-ruled the contentions put forward and on January 28, 1963, passed the following order : "I imposed penalty of Rs. 500/- under each of the Rules 9(2), 52A & 226 of the Central Excise Rules, 1944 (Rs. 1,500/- in all) on M/s. Howrah Proofing Co. of 113/1, Shri Arabindo Road, Salkia, Howrah. M/s. Howrah Proofing Co. should also pay excise duty on the entire quantity of 9,00,948.60 sq. metres of processed cotton canvas, produced and clandestinely removed by them." Aggrieved by the order, the petitioners moved this Court, under Art. 226 of the Constitution, praying for a Writ of Certiorari for the quashing of the notice, dated September 29, 1962, and the order, dated January 28, 1963, and for a mandate upon the respondents restraining them from taking steps under the order dated January 28, 1963 and obtained this Rule, limited to the following ground : "The petitioners di....
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....of statutory provision as to payment of duty, no action should be taken against him until the cause shown by him, if any, is considered and decided or, where no cause is shown until the time fixed for showing cause expires. In issuing the demand notice for payment of duty, alleged to have been evaded, the respondent Deputy Superintendent showed under haste and a state of mind wholly made up against the petitioners beforehand. If the Deputy Superintendent had been the adjudicating authority, I might have upheld the argument of Mr. Chaudhury on the ground that the Deputy Superintendent had a fore-sworn mind and that the opportunity given to the petitioners to show cause was only a matter of form. But in this case, the Deputy Superintendent was not the adjudicating authority. The Notice to show cause was issued by an Assistant Collector of Central Excise, calling upon the petitioners to show cause before the Collector of Central Excise, Calcutta and Orissa, who was the adjudicating authority. It appears from the adjudication order, (1) that the petitioners asked for extension of time before the collector to show cause, which prayer was allowed, (2) that they submitted their written ex....
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.... other papers before the order dated 28th January 1963 was passed and hence there was no question of refusing access to the said records." What is stated in the affidavit-in-opposition is dealt with in paragraph 7 of the affidavit-in-reply in the following language : "Pursuant to the appointment made by the petitioner's solicitor the respondent No. 1 allowed inspection of certain books to me, Punam Chand Gupta, Mamgiram Agarwala and A.C. Dutt the last two named being our agents on the 16th May, 1963 at the office of the Superintendent, Central Excise, Centralised Prevention Unit at No. 7, Hare Street, Calcutta but item No. 2 in the seizure list being an account book was not produced for our inspection. This fact was pointed out to the officers of the respondents in whose presence inspection was being offered but they could not help us in the matter and we came back without having inspection of the said book which is a very important one as also other books of which inspection could not be completed in one day." What is stated in paragraph 7 of the affidavit in-reply relates to a time after the making of the adjudication order. Therefore there is nothing in the affidavit-in....