SUHAS CHANDRA SEN, J.

( 1 ) THIS case arises out of a show cause notice being F. No. 574/ce/3/87 dated 27th March 19issued by the Directorate of Anti-Evasion (Central Excise ). A writ petition challengin Constitution of India was moved before Bhagawati Prasad Banerjee J. On 18th August, 1987 an interim order was passed by Bhagawati Prasad Banerjee J. to the effect that the respondents were allowed to proceed pursuant to the aforesaid show cause notice. It was further directed that the petitioner would be at liberty to submit their reply to the show cause notice without prejudice to the rights and contentions of the petitioner in the writ petition. The respondents were given liberty to conclude the proceedings and pass a final order on the proceedings. But the respondents were directed not to give any effect to or act upon or communicate the final order to the petitioner without leave of the Court.

( 2 ) THE writ petition came up for hearing before Bhagabati Prasad Banerjee J. On 14th August, 1987 a rule Nisi was issued on the writ petition. But ultimately the writ petition was dismissed and the rule was discharged by an order dated December 24, 1987. All interim orders were vacated.

( 3 ) THE writ petitioner, I. T. C. Limited, has now come up in appeal against the judgment and order passed by Bhagabati Prasad Banerjee J. on December 24,1987.

( 4 ) THE impugned show cause notice was issued on 27th March, 1987 by which the writ petitioner was required to show cause in writing within 30 days of the receipt of the notice to the Director, Directorate of Anti-Evasion (Central Excise) as to why :-" (a) Central Excise Duty short paid as aforementioned for the period as detailed in the annexure to this Show Cause Notice should not be demanded under the provisions of Section 11-A of the said Act and Rule 9 (2) of the said Rules. (b) Penalties should not be imposed on them under the Rule 9 (2), 52a (5), 209, 210 and 221 of the said Rules and (c) the land, building, plant, machinery and materials should not be confiscated under the provisions of Rule 209 (2) of the said Rules. "

( 5 ) THE show cause notice was collectively issued to a number of other companies including I. T. C. Limited, the writ petitioner. The companies which were served with the show cause notices were :-1) M/s. ITC Limited, Virginia House, 37, Chowringhee Road, Calcutta-71. 2) M/s. ITC Limited, Kidderpore, Calcutta. 3) M/s. ITC Limited, 287, Dr. Ambedkar Road, Parel, Bombay-12. 4) M/s. ITC Limited, Fraser Town, Bangalore-5. 5) M/s. ITC Limited, Saharanpur (UP ). 6) M/s. ITC Limited, Monghyr (Bihar) and their Chairman, Directors and their 7 O. CMs. namely :-a) M/s. Asia Tobacco Co. Limited, Hosur b) M/s. Deccan Tobacco Manufacturing Company, Hyderabad c) M/s. Crown Tobacco Company, Bombay d) M/s. Master Tobacco Company, Bombay e) M/s. Lakshmi Tobacco Company, Bhilai f) M/s. Reliable Cigarette and Tobacco Industries, Bhopal g) M/s. Sikkim General Industries Corporation Private Limited, Gangtok, Sikkim.

( 6 ) ALTHOUGH the show cause notice was served as early as on 27th March, 1987 requiring the petitioner to reply within 30 days, this writ petition was moved only on 14-8-1987. There is no plausible explanation for this inordinate delay.

( 7 ) IT also appears from the judgment under appeal passed by Bhagabati Prasad Banerjee J. that the facts stated in the show cause notice were not in dispute before the court below. The arguments that were advanced were on certain legal issues. The contention was that the show cause notice could not be justified in law and will have to be quashed even if the facts were taken to be correctly stated in the notice. The notice was assailed on a number of legal grounds as well as on the ground of bias. This stand taken at the hearing was in keeping with the case made out in the writ petition.

( 8 ) BUT the case has undergone a sea change in the Appeal Court. The main attack in the appeal against the show cause notice has been that the

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