D.K. Kanpur, J.
1. This Writ Petition seeks to challenge the show cause notice dated 6-4-1984 issued by the Assistant Collector of Central Excise, M.O.D. IV, Nizamuddin West, Delhi. This notice calls upon the petitioner to show cause why the classification lists effective from 1-4-82, 1-3-83 and 1-4-83 in respect of Railway Track Materials, specified in the notice be not approved.
2. A show cause notice was issued and replies have been filed. As a very short point is involved, we issue Rule D.B. and proceed to decide the petition.
3. The petitioner had filed classification lists before two separate Assistant Collectors of Central Excise. The items of Railway Track Material in dispute, Tie Bars, Cottors and Two Way Keys and Steel Loose Jaws were the subject matter on order passed by the Appellate Collector of Central Excise, New Delhi on 20th July, 1983. This order shows that the dispute was whether these items had to be included in tariff item 26AA or under item 68. The Assistant Collector had held that the Tie Bars and Cottors fall under tariff items 68 and not under item 26AA but the Appellate Collector after examining the manufactured items came to the conclusion that these items fell under item 26AA. It was also noted that these items were being assessed under item 26AA in Chandigarh and Baroda as well as Ghaziabad. This order was passed in respect of a period prior to February, 1982. So it would not bind the authorities for subsequent periods.
4. However, as already noted earlier, the petitioner had filed two sets of classification lists before the two separate Assistant Collectors. The lists were approved by the Assistant Collector, Central Excise MOD-II who accepted the classification list and approved of the assessed's contention that the Railway Track Material were to be included in Item 26AA.
5. The history of the case, thereforee, shows that for earlier periods, out of the four items of Railway Track Material involved, the Assistant Collector had accepted that two of them were to be included under item 26AA but Tie Bars and Cottors were to be included in item 68. On appeal the Appellate Collector had accepted the petitioner's contention and held that all the items came under item 26AA. For the subsequent period the classification list was accepted and approved on this basis by the Assistant Collector, Central Excise, MOD-II. So, the question is whether a show cause notice can at all issue to re-open this question with respect to the same period.
6. It was contended by the learned counsel for the respondent and also stated in the affidavit in reply that the approval was given provisionally by the Assistant Collector, Central Excise, MOD-IV. We think that this position is not tenable. The approval had already been given by the Assistant Collector, MOD-II and it was not stated therein that this was provisional. It may be mentioned here also that a provisional assessment is done under Rule 9B which is a different procedure from an approval under Rule 173B. According to Rule 173B, the assessed has to file for approval before the proper officer, a list contained in a particular form in accordance with the rule, and that officer may make enquiry and then approve the list. All this has been done earlier by one Assistant Collector and for an earlier period the Assistant Collector had approved only two of the items in the list but on appeal the Appellate Collector had accepted the assessed's view point. It, thereforee, appears to us that the show cause notice cannot be issued in the present case : (a) because the notice was issued in April, 1984 with regard to a period which commenced in April, 1982 and included periods also commencing in April 1983. The withdrawal of approval cannot be postponed to years after the event; and (b) once the approval then the classification list becomes an approved list and cannot now be disapproved by another Assistant Collector. We are, thereforee, of the view that the notice is not valid.
7. We may now refer to two other points which were urged on behalf of the respondents. Firstly, it was contended that the notice was issued because there was a meeting of collectors in May, 1984 at Srinagar where it was decided that certain Railway Track Material should be classified under item 68 of the Central Excise Tariff. Secondly, it was contended that this case was at the show cause stage and the petitioner could always get relief against the final order.
8. We think we should make it clear that if the classified list is one which had not previously been approved by the Assistant Collector MOD-II then only can the question of denying approval be raised. Once the list has been approved by one of the Assistant Collectors it becomes an approved list and accordingly the Excise authorities can only take recourse to some other provisions of the Act. So the show cause notice has to be held to be invalid. Furthermore, we think we should not deny the petitioner's relief at this stage when the notice is clearly invalid. The notice states that list should be approved under Item 68 in respect of the Railway Track Material i.e. Tie Bars, Cottors and Two way Keys etc. This position is untenable as all the four items have been approved under item 26AA not only in the same period but also for the previous period.
9. We accordingly grant the writ and quash the impugned notice. There will be no order as to costs.