K. Sankararaman, Member (T)

1. When these two cases were called out, Shri M.N. Biswas, learned SDR was present on behalf of the appellant Collector. However, none representing the respondents M/s. Indian Cable Co. Ltd. Golemuri, Jamshedpur was present. We found that a notice communicating the date of hearing of the appeal today had been issued to the respondents on 20th September, 1989. As sufficient time had been allowed to the respondents informing them about the hearing of the appeal today and as no request had also been received from them for an adjournment, we proceed to dispose of these appeals. As a common issue is involved in both these appeals and the difference is only that these two cases relate to assessment of two months viz. May, 1984 and June, 1984, we pass a common order relating to both these appeals.

2. These two appeals are filed by the Collector of Central Excise, Patna against the orders passed by Collector of Central Excise (Appeals). By his impugned order, the Collector of Central Excise (Appeals) had allowed the appeals filed by the present respondents and set aside the assessment order passed the Superintendent of Central Excise on the RT-12 return without prejudice to his right to redetermine the case afresh in accordance with the law and after observing the principles of natural justice. The Superintendent had, while assessing the RT-12 raised a demand for the amount of duty short paid by the assessee as seen from the RT-12. He had carried out the assessment of RT-12 in terms of Rule 173I of the Central Excise Rules, 1944. Aggrieved with the action taken by the Superintendent in issuing a demand while completing the RT-12 return the respondent to this appeal approached the Collector (Appeals) contending in their appeal that before raising the demand the Superintendent did not issue any show cause notice and did not give any personal hearing to represent their case. It was also alleged that the said demand was made without following the rules and the principles of natural justice. These contentions found favour with the Collector (Appeals) who observed that for the failure of natural justice, the order appealed against could not be sustained in law. He relied upon the decisions of the Supreme Court in the case of East India Commercial Co. v. Collector of Customs (1983 (13) E.L.T. 1342) and the judgement in the case of Smt. Maneka Gandhi v. Union of India, as also the judgment of Kerala High Court in the case of Good Shephered Rubber Co. v. Inspector of Central Excise (1978 (2) E.L.T. J-66) and the Calcutta High Court judgement in Hindustan Pilkington Glass Works Ltd. v. Supdt. of Central Excise (1978 (2) E.L.T. J-229).

3. In the present appeals before us the appellant Collector has contended that the action taken by the Superintendent was in pursuance of Rule 173I of the Central Excise Rules. The said Rule is as under :-

(1) " The proper officer shall on the basis of the information contained in the return filed by the assessee under sub-rule (3) of the Rule 173-G and after such further inquiry as he may consider necessary, assess the duty due on the goods removed and complete the assessment memorandum on the return. A copy of the return so completed shall be sent to the assessee.

(2) The duty determined and paid by the assessee under Rule 173-F shall be adjusted against the duty assessed by the proper officer under sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the deficiency by making a debit in the account-current within ten days of receipt of copy of the return from the proper officer and where such duty is less, the assessee shall take credit in the account current for the excess on receipt of the assessment order in the copy of the return duly countersigned by a Supdt. of Central Excise."

4. It is submitted by the Collector that a plain reading of the rules itself would reveal that under this rule the service of show