Dalmia Cement (Bharat) Ltd. vs Union of India

Somasundaram, J.—The prayer in the writ petition is as follows :-

.... to issue a writ of certiorarified mandamus, to call for the records of the second respondent, in show cause Notice No. DC. No. 477/89, dated

10-3-1989 and quash the same and direct the second respondent to permit the petitioner to classify and clear the special cement of High Strength

Grey Portland Cement under the sub-heading No. 2502.20 and pace such further orders as this Honourable Court may deem fit and proper.

The petitioner is the manufacturer of several varieties of cement such as Grey Portland High Strength Cement. By the show cause notice dated

10-3-1989 the second respondent called upon the petitioner to show cause to the third respondent why a sum of Rs. 1,33,094.67 should not be

demanded from them u/s 11A of the Central Excise Act, 1944. The impugned show cause notice was issued on the ground that the special cement

viz., Grey Portland High Strength Cement was offered for sale at a price lower than the overall cost of production and was actually sold at such a

price in the case of those possessing authorisation letters and the price of special cement in respect of the clearance against the said authorisation

letter was not the sole consideration for sale and as such did not constitute the normal price within the meaning of Section 4(1)(a) of the Central

Excises and Salt Act, 1944. The above show cause notice is challenged in this writ petition on various grounds which are stated in grounds A to D

of the affidavit filed in support of the writ petition. During the hearing of the writ petition Mr. P. S. Raman submitted that the Department itself has

accepted the stand of the petitioner that the Grey Portland High Strength Cement will not fall under sub-heading 2502.90 of the Central Excise

Tariff but it will fall under sub-heading 2502.20. The learned Counsel drew my attention to the order dated 15-2-1990 passed by the Assistant

Collector Trichy-I holding that the Grey Portland High Strength Cement manufactured by M/s. Dalmia Cements for use by the Railways, Defence

etc., is properly classifiable under sub-heading 2502.20 with effect from 20-9-1989. The case of the respondents is that the petitioner have not

intimated the Department about the prevalence of separate lower price for the consumer possessing authorisation certificate and that the petitioners

have suppressed the facts relevant to and necessary for determination of the correct assessable value in respect of the special cement manufactured

and supplied by them to the Defence and Railways while submitting their price list and by reason of this the Central Excise duty to the tune of Rs.

1,33,094.67 has been evaded by them. It is further stated in the counter-affidavit that since the petitioners have suppressed the facts, the duty is

demandable under proviso to sub-section 1 of Section 11A of the Central Excises and Salt Act, 1944. It cannot be said that the impugned show

cause notice is one issued without jurisdiction. After all, the respondents want to find out, after hearing the petitioner''s objections and after

conducting an enquiry whether there was actually any suppression of facts on the part of the petitioner at the time of filing of the price list, which are

necessary for the determination of the correct assessable value and whether there is any short levy to the tune of Rs. 1,33,094.67. The petitioner

can raise all the objections and contentions raised in this writ petition and submit a reply to the show cause notice. There is no valid reason for

quashing the impugned show cause notice at this stage. However, it is open to the petitioner to submit within three weeks from today a reply to the

show cause notice raising all the contentions available to him including those raised in this writ petition. It is also open to the petitioner to rely on the

order of the Assistant Collector of Central Excise, Trichy-I. In his proceedings C. No. V/25/32/1/89-VC, dated 15-2-1990, holding that the

cement in question will fall under sub-heading 2502.20 of the Central Excise Tariff and the Circular No. 54/89 CX. 3, dated 20-9-1989, issued by

CBEC. On receipt of the reply to the show cause notice, the appropriate authority will hear the petitioner or his Counsel in person and pass final

orders on merits within eight weeks from the date of receipt of the reply to the show cause notice. With these observations, this writ petition is

dismissed. However, there will be no order as to costs.