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1. These four appeals came up for hearing before us under the judgment of the Supreme Court in Civil Appeal No. 379/88 with Civil Appeals No. 3680-82/87. Very briefly the background is that by order No. 786-788/86 dated 26-9-1986 the Tribunal held that non-alcoholic beverage bases manufactured by the appellants were eligible for duty exemption in terms of SI. No.1 of the Schedule to Notification No. 55/75. Following the ratio of the same order the Tribunal passed order No. 838/87-D dated 26th October 1987. In both the matters totally involving 4 appeals the appellants were M/s. Parle Exports Private Ltd., Bombay.

17. We perused the show cause notices. The show cause notice dated 16/18-10-1979 (the notice dated 13-8-1979 having been withdrawn) listed 5 allegations:

1. Whereas it appears that M/s. Parle (Exports) Pvt. Ltd., Andheri have contravened the provisions of Rules 9 (i), 53,173PP (i), 173PP (3), 173PP (6) and 174 of the Central Excise Rules 1944, in as much as that during the period from 1-3-1975 to 18-4-1979.
(i) they manufactured without a valid licence as required under Section 6 of CES Act, 1944, read with Rule 174 of C. Ex. Rules 1944, goods not elsewhere specified and falling under Item No. 68 of 1st schedule to the Central Excises & Salt Act, 1944 viz. Non-alcoholic beverage bases (hereinafter called "said goods").

2. The said M/s. Parle (Exports) Pvt. Ltd. are required to show cause to the Assistant Collector of Central Excise Division 'K' Bombay as to why duty amounting to Rs. 3,50,963.22 (See Annexure I & II) should not be recovered from them and why a penalty should not be imposed on them under Rules 9(2), 173Q and 210 of C. Ex. Rules, 1944 for contravening the provisions of Rules 9(i), 53, 173PP (i), 173PP (6) and 174.

3. M/s. Parle (Exports) Pvt. Ltd. Andheri are further directed to produce at the time of showing cause, all the evidence upon which they intend to rely in support of their defence.

4. M/s. Parle (Exports) Pvt. Ltd. Andheri, should also indicate in the written explanation whether they wish to be heard in person before the case is adjudicated.

5. If no cause is shown against the action proposed to be taken within 30 days of the receipt of this notice or they do not appear before the adjudicating officer when the case is posted for hearing, the case will be decided ex parte."

Do these allegations amount to suppression of facts or misstatement? We cannot overlook the explanation given by Shri Ganesh that as the appellants believed, bona fide that their product was exempt from duty they need not have followed any of the Central Excise Rules. Regarding documentation, payment of duty, etc. in allegation No.5 the Department refers to non-maintenance of accounts required by them under Rule 53 CER. Annexure B to the show cause notice gives the value of the goods in Rupees and paise for the period 1-3-1975 to 18-4-1979. There is no allegation in the show cause notice that no accounts of any kind were maintained. Such an allegation was not made, even during the hearing before us. Therefore, it has to be presumed that whatever goods were cleared by the appellants were cleared only in an accounted manner though such accounts were not those prescribed by Excise Law.