Manas Nath Roy, J.
1. The petitioners are partners of an unregistered firm known as Suburban Industrial Works. It has been stated that S.F. India Ltd., in their turn get a type of industrial fan, known as 'Man Cooler', supplied through their Agents M/s. Flow Link and the said M/s. Flow Link in their turn, get the items as mentioned above, manufactured by the said Suburban Industrial Works.
2. The said Suburban Industrial Works, was asked to show cause by a notice dated 21-7-73, as to why appropriate steps should not be taken or due levy would not be made, so far they are concerned, in respect of 193 pieces of fans as mentioned above, which were said to have been manufactured during the period from 5-7-67 to 10-6-69. It would appear that on receipt of the show cause and on consideration of the same, on or about 17th July, 1976 by the order in annexure 'H', one Sri P.R. Biswas, Collector, directed withdrawal of the show cause notice and dropping of the proceedings as initiated. Thereafter, by the record in annexure I, which is an order dated 19th September, 1976, the said Sri Biswas, it has been alleged, has imposed a penalty of Rs. 5,000/- on the said M/s. Suburban Industrial Works, under Rule 173-Q of the Central Excise Rules, 1944.
3. Amongst others, in paragraph 21, the petitioners have stated that when the order in annexure I as mentioned above, was made in connection with the self same show cause notice, which was disposed of through the order in annexure 'H'. There has been an affidavit-in-opposition filed by the respondent, which was dated 10-1-78 and from the contents of the said affidavits, it appeared to me, that such claim of the petitioners as mentioned above, have not been duly or appropriately denied. The respondents of course stated that the record in annexure 'H' was not an order, but the same was simply the recording of the statements or submissions as made on behalf of the petitioners. It was claimed by the petitioners further that the impugned order in annexure 'T' was passed behind their back and without due and appropriate opportunities to them.
4. If by the order as mentioned in annexure 'H' the proceedings as intitiated through the show cause notice, which was also in issue in the order in annexure T was dropped, then such order in annexure 'I' as made subsequently, was not given appropriated opportunities of being heard.
5. Although, after the Rule was made ready for hearing on 22-2-78 an affidavit-in-opposition as mentioned above, was filed, nobody appeared for the respondents, when the matter was considered. The original of the affidavit-in-opposition was also not available in the record and as such a copy, which was produced by Mr. Sircar, was the order in annexure 'I' appeared to me to have been passed without due and appropriate opportunities to the petitioners. So, after hearing Mr. Sircar, I make the Rule absolute and set aside the order in annexure T. The respondents of course, will have liberty to reconsider the matter, if they so want or wish, after giving due opportunities to the petitioners.