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(h) The company had removed ex-factory, the prime quality of Commercial Plywood under the garb of defective grades deliberately by mis-classification was evident from the duplicate invoices bearing same number and date and other corresponding documents forwarded through banks and collection of amounts thereon for the period mentioned therein.

6. I have heard Sri M.L. Lahoty, learned counsel for the petitioners in all the Civil Rules and Sri K.N. Choudhury, learned Central Govt. Standing Counsel.

(iv) Neither in the Central Excise Act nor under the Central Excise Rules, the Respondents are empowered to issue purported Show Cause Notice as both the price lists and classification lists were approved and finalised under Rule 173B and Rule 173C after issuance of specific Show Cause Notices, granting personal hearing and adjudication orders having been passed.

v(a) The disputes referred to in the said paragraphs pertain to the classifications of (1) Kitply Marine Grade, (2) Concrete Shuttering Plywood, (3) Defective Grade of Marine Plywood, (4) Defective Grade of Commercial Plywood, and the allegations totally unfounded and baseless have been made of mis-classification of the said products. It is submitted that all the said matters of classifications are settled by the Orders which are appended to the Writ Petition from pages 172 to 178, (Annexure I to J).

v(b) Vide Order-in-Appeal Nos. 97 to 98 of the Collector (Appeals), Central Excise, Calcutta (pages 172-174, Annexure I), has decided the matter of classification of the defective marine plywood and it has been held that the mere reading of the explanation appended to the Notification No. 55/79-CE., dated 1-3-1979 (Notification extracted at page 192) clearly affirms the view that marine plywood is expressly excluded from the category of commercial plywood. The goods of the petitioner are admittedly defective grade of marine plywood and merely they are defective they will not cease to be marine plywood. The allegation in para (e) of the Show Cause Notice, therefore, shows the total non-application of mind inasmuch as the allegation of mis-classification of defective grade marine plywood is absolutely baseless as the Appellate Order which was passed on 26-4-1984 was more than one and half year prior to the issuance of the impugned show cause notice on 9th October, 1985. Further the proviso of Section 11A is invoked for attracting the extended period of limitation of five years when the entire issue of classification has been judicially decided in favour of the petitioner to which the Respondent has full knowledge. Moreover, the Respondents have accepted the classification of the defective grade marine plywood themselves by acting upon the said order.

v(c) Likewise, the issue of classification of "Kitply" which is allegdly raised in paragraph (f) of the impugned Show Cause Notice stands also settled by the order No. 55/86, dated 17-11-1986 passed by Assistant Collector appearing in (pages 180 to 183 Annexure J). It is pertinent to mention that the said Order has been passed on remand under the direction of Collector (Appeals), Central Excise, Calcutta, vide his order, dated 27-9-1983 (in pages 175 to 178 - Annexure-J) whereby the Assistant Collector was directed to get the sample of the product chemically examined and after obtaining the Chemical Test Report the matter of classification be decided. The required test was carried and samples were forwarded to the National Test House, Alipur, Calcutta, who vide its Test Report affirmed the stand of the petitioner that the product "Kitply" conforms to the parameters of Marine Plywood IS-7-10-1976. The whimsical allegation of mis-classification of "KITPLY" made in paragraph (f) of the Show Cause Notice after the aforesaid Adjudication Order/Appeal order is therefore absolutely uncalled for.