ORDER IFTIKHAR MUHAMMAD CHAUDHRY, C.J.- These petitions have been filed for leave to appeal against the judgment dated 7.3.2005. Lt is to be noted that matter related to alleged evasion of excise duty falling within the mischief of Rule 10 of Central Excise Rules, 1944. The department issued show-cause notices to the petitioners calling upon them to show as to why proposed action for non-payment of the central excise duty be not taken. Case-wise detail of the same is reproduced herein-below from the chart which has been submitted under the direction of the Court by the learned counsel for the petitioner:-- Sr N
0. Case and Title Period of evasion of duty Date/Show- Cause Notice Nature of allegation mentioned in the show-cause notice and the relevant sub-rule attracted to the facts of the case.
1. 813-1/05 Collector C.E. & Sales Tax Vs. M/s. Pattoki Sugar. January, 1999 to March, 199 9 14.10.2000 ln Para-2 (at. Page No. 36 of the Paper Book) of the Show- Cause Notice, the reasoning of alleged 'wilful' evasion of Central Excise Duty has been adequate^ provided. The combined effect and import of 1st proviso to Ruie - - 12, Rule 13(1) and SRO 547(l)/96, dated 1.6.1996 has been explained. Moreover, in para. 04 of the Show-Cause Notice, sub-rule 3 of the Rule 10 was added by the adjudicating authority under his own hand.
2. 814/L/2005 Collector C.E. & Sales Tax Vs. M/s. Fauji Sugar February, 1998 to May, 1998 .14.10.2000 " ln Para-2 (at Page No. 37 of the Paper Book) of the Show- Cause Notice, the reasoning of alleged evasion of Central Excise Duty has been adequately provided. The combined effect and import of 1st proviso to Rule 12, Rule 13(1) and - SRO 547(l)/96, dated 1.6.96 has been explained.
3. 815-L/2005 Collector C.E. & Sales Tax vs. M/s. Haseeb April ,1998 14.10.2000 ln Para-2 (at Page No. 37 of the 'paper book) of the Show-. - & Sales'Tax vs, M/s. Brother Sugar / December 1998' i- * * the Paper Book) of the Show- Cause Notice, the reasoning of alleged evasion of Central Excise Duty has been adequately provided. The combined effect and import of 1st proviso to Rule 12, Rule 13(1) and SRO 547(l)/96, dated. 1.6.1996 had been explained.
6, 818-L/2005 September, 30.8.2000' ln Para-2 (at Collector C.E. 1998 to Page No. 37 of & Sales Tax vs. February, the Paper book)
M/s. Brother 1999 of the Show- Sugar Cause Notice, the reasoning of alleged ' 'wilful' evasion of Central Excise Duty * has been adequately provided. The combined effect and import of lst proviso to Rule _ ' * ' 12', Rule 13(1) and SRO , - 547(l)/96, dated 1.6.1996 has been explained.
7. 819-L/2005 September, 29.6.2000 ln Para-2 (at Collector C.E. 1998 to Page No. 35 of 1 & Sales Tax vs. December, the Paper Book)
M/s. Abdullah 1998 of the Show- Sugar Cause Notice, the reasoning of alleged Evasion. Of Central Excise Duty has been adequately provided. The combined effect and import of lst proviso to Rule 12, Rule 13(1) and : SRO 547(l)/96, dated . . 1.6.1996 has * been explained.
8. 82Q-L/2005 - July, 1998 14.10.2000 ln Para-2 (at Collector C.E. To April; Page No; 37 of & Sales Tax vs. 1999 the Paper Book)
M/s. Abdullah of the Show Sugar Cause Notice, the reasoning of alleged 'wilful' evasion of Central Excise Duty has been adequately * provided; The combined effect . And import of lst proviso 'to Rule 12, Rule 13(1) and SRO 547(l)/96, dated were patently illegal and beyond the period of limitation. Learned counsel for the petitioner, inter alia, contended that:
(i) The show-cause notice in substance contains the details in respect of violation of the provision of Rules 10, 12, 13 and S.R.O. 547(l)/96, dated 1.6.1996, therefore, according to him non-mentioning in the notices subsequent provision of the rule is not fatal,
(ii) The question for, determination before adjudicating authority as well as the High Court was as to whether excise duty has been evaded. According to him the show-cause notice contains sufficient material to hold that the respondents have evaded the duly and are liable for action under Section 10(2) of the Central Excises Act, 1944.
(iii) The judgment which has been relied upon is distinguishable on the facts of the case.
3. On the- other hand learned counsel appearing for the respondent vehemently opposed the petition and stated:
(a) Learned High Court had rightly applied the principle laid down by this Court in Khyber Electric Lamps case (ibid). As according to them the provision of Section 32 of the Custom Act, 1969 is similar to that of Rule 10 of the Central Excise Rules, 1944, therefore, the show-cause notices issued by the department were rightly found illegal and beyond the limitation.
(b) After announcement of judgment in the case of . Khyber Electric Lamps case; (ibid) no ambiguity is left to determine as to whether under which clause of Rule 10 the case ofjhe department ' will fall but as there was no specific allegation in respect of evasion falling under sub-section
(1) of rule 10 of the Central Excise Rules, 1944, therefore, the High Court had rightly held that these notices were beyond the limitation as sub-rules (1), (2) ancl (3) of rale 10, have provided different period limitatibn'fof the purpose of re-opening of the case arret t^less the case is covered any specific allegation no action can be taken.
(c) Department had knowledge about the expert of sugar by the respondents but no action was taken knowing well that there is no violation of any of the provision but subsequently vague notices were issued with a view to- cover limitation, therefore, High Court had' rightly granted relief to the respondents. *
4. After hearing the learned counsel for the parties at considerable length and having gone through the relevant provisions of law, Rule 10 of Central Excise Rules, 1944, Section 32 of the Customs Act, 1969 and-ratio in the case of Khyber Electric Lamps as well as the judgment pronounced by this Court in case of Collector of Sales Tax & CE, Lahore vs. Zamindara Paper & Board Mills, etc. (C.P. 702-L/2003) leave to appeal is granted, interalia, to examine the contentions put forward by the learned counsel for the partie.