ORDER
Ajoy Nath Ray, J.
1. The writ petition is directed against a show cause notice dated 9-3-1998 issued by the Commissioner of Central Excise, Calcutta asking the writ petitioners to show cause why wilfully evaded Central Excise duty to the tune of Rs. 2.40 crores (approximately) should not be levied as against them.
2. The only points which are impressive about the show cause notice are the amount of the demand and the manner in which Mr. Prem Gopal Mukherjee appearing for the respondents tried to support it. Mr. Mukherjee gave me several cases mostly of the Supreme Court which show that it is most certainly the ordinary rule that a show cause notice is not to be restrained from being proceeded with at the first and initial stage.
3. Dr. Pal appearing for the writ petitioner, however, submitted that the show cause notice suffers from an obvious lack of jurisdiction and, therefore, the writ petition should succeed.
4. The period of manufacture in question is from April, 1993 to March, 1995. The writ petitions were manufacturing Platinum and Rhodium wires. They were using old articles made of these precious materials. During their manufacture they never used gold. Their products also were never of gold.
5. Two classification lists for the two year were approved within a period of one week in 1994. There is no allegation anywhere that the writ petitioners were not using old precious material articles as they had claimed or that they were producing gold products instead of products of Platinum and Rhodium.
6. The controversy centred round the interpretations of certain Notifications and Amendments ranging from 1988 to 16th March, 1995. The net effect of these Notifications is that at first precious materials which were used for manufacture of precious material products could be deducted for the purpose of computation of excise duty, and then there came a total exemption which was claimed by the writ petitioners. Amendments and Notifications intervened however, which provided that for gold, unfinished and semifinished products like ingots or biscuits would not qualify for exemption. There was no such explanation or clarification in regard to Platinum or Rhodium and there is no notification which expressly prohibits Platinum wires from being fully exempt from duty.
7. I do not enter into the details of the Notifications and the exact language and I do not do so advisedly. Were I to enter into these details, and were I to give a reasoned decision on that the interpretation of these is with regard to platinum wire produced from old platinum articles, I would surely have left such a matter to be first gone into by the Department?
8. But the show cause notice served far beyond six months in regard to the period 1993-95 cannot be so served unless there is some allegation of fraud or such allied improprieties mentioned in Section 11A of the Central Excise Act, which would extend the period from six months to five years.
9. The show cause also mentions penalty and interest but these would appear to be even more without jurisdiction as the provisions were inserted beyond the material time.
10. As I have said, about fraud, suppression and wilful evasion there is no material on record although the phrase ‘wilful evasion’ is used in the show cause notice. A bare perusal of it shows that even the Collector is merely worried about the interpretation of the notifications and their applicability to platinum wires.
11. Dr. Pal also cited many cases in support of his client’s case. He left no stone unturned and that is understandable because the claim is heavy.
12. But on the short point that the matters do not involve fraud or suppression and that many six months had elapsed from the period in question until the service of the show cause notice, the writ application must succeed. The show cause notice impugned herein dated 9th March, 1988 in quashed.
13. For abundant caution it is also ordered that whether issued or not there will be Rule Absolute as prayed for in the writ petition.
14. Let copies the dictated order issue on the usual understandings.
