ORDER
G.N. Srinivasan, Member (J)
1. This is an appeal against the decision of Order No. 78/91- Addl. Collector dated 11-12-1991 whereunder he confirmed the duty demand of Rs. 3,25,688.20 and he also levied a penalty of Rs. 2.00 lakhs.
2. The appellants carry on the business manufacturing inter alia, various chemicals alcohols such as DA A, Normal Butanol (NBA), Iso-Butanol (IB A). During the period relevant i.e. May, 1982 to December, 1982, the aforesaid alcohols were classified under Tariff Item 68. One of the materials for the product DAA was a chemical known as Citric Acid. One of the raw materials necessary for the remaining products was a chemical known as Cobalt Octate. Both Citric Acid and Cobalt Octate were also classified under Tariff Item 68. A show cause notice dated 12-10-1984 were issued to the appellants alleging that the appellant had taken proforma credit on these two items for the period from May, 1982 to December, 1982, on the basis of wrong declaration dated 26-7-1982 and 25-2-1983 stating that Cobalt Octate was component part for the manufacture of alcohols of the types of 2EHA/NBA, despite, the fact that in their earlier letter dated 30-4-1982 they have declared that Cobalt Octate is used as catalyst in the Hydroformulation reaction for the manufacture of such alcohols and Citric Acid used as a reactant to maintain acidity in the manufacture of DAA. A reply was given on 6-11-1984. After considering the same adjudicating authority had held that there was a deliberate mis-statement about a role of the products concerned in the manufacturing process with an intent to evade payment of duty which was payable if the products concerned were not considered admissible for proforma credit. The adjudicating authority confirmed that demand as stated above and inflicted penalty as mentioned in the earlier position of .the appeal. Hence this appeal.
3. Shri D.B. Shroff the ld. Advocate pleaded that show cause notice was issued by Superintendent on 12-12-1984 covering the period in question namely May, 1982 to December, 1982. There is no reference to the proposed imposition of penalty in the show cause notice. Yet the adjudicating authority has inflicted penalty on the appellants. He took us through the declaration for availing proforma credit under Rule 56A, in respect of items in question namely Citric Acid and Cobalt Octate, and the permission was granted by the competent authority. He also referred to the subsequent details furnished regarding usage of these materials consequent on amendment of Notification No. 201/79. He also referred to the fact that after this Notification No. 201/79, was amended, on the basis of details furnished, the Superintendent allowed them to continue to avail proforma credit under Rule 56A, in respect of these inputs. He vehemently contended that in terms of Section 11A of the Central Excise Act, the allegations of suppressions and wilful mistake are absent in show cause notice. He relied on the judgment of the Supreme Court in the case of Cosmic Dye Chemical reported in 1995 (75) E.L.T. 721 (S.C.) thereof. It has been held by the Supreme Court in that case that for purpose of application of proviso to Section 11A. Show cause notice must contain allegations of suppression or mis-statement of fact which is must wilful mis-statement means intent to evade duty otherwise extended longer period cannot be invoked. He also relied the judgment of the Supreme Court in the case of Collector of Central Excise v. H.M.M. – 1995 (76) E.L.T. 497 (S.C.) for the proposition that show cause notice must contain an averment to the effect pointing out specifically which of the various act of commission or omission provided as evidence to evade payment of duty. He also took us through the various process of manufacture to show that illegally and logically his client’s case is a cart cross case.
4. As against the ld. }DR Shri R.K. Talajia for the Department argues by relying on the impugned order.
5. We have considered the rival submissions. As stated by Shri D.B. Shroff the ld. Counsel, in the show cause notice dated 12-10-1984, it has been stated in the last sentence of the first paragraph thereof as follows :
“Further M/s. NOCIL, have continued to take Proforma Credit of the materials Cobalt Octate and Citric Acid from May, 1982 to December, 1982 to the extent of Rs. 2,87,478.01 and given wrong declaration No. 51, dated 26-7-1982 and 36, dated 25-2-1983 stating at Cobalt Octate is component part for the manufacture of 2EHA/NBA”.
We have gone through the second paragraph of the said letter. The show cause notice does not in our view even obliquely refer to the ingredients contained in the proviso to Section 11A of the Act. There is no specific allegation of either mis-statement or suppression of fact as has been found by the Judgment of Supreme Court in the case of H.M.M. Ltd. (supra) referred to above. There is absolutely no statement of actions of commissions or omissions so as to attract the various ingredients of the proviso to Section 11A. The impugned order is a quasi-judicial act done by a quasi-judicial authority before any quasi-judicial act affecting any person with civil consequences can take place there must be a specific allegation in the show cause notice. In the absence of the same, no action of this type can be taken. Therefore, we set aside the impugned order and allowed the appeal, with consequential relief if any. In view of the above, we are not going to the merits of the other argument made by Shri D.B. Shroff.