BIMAL CHANDRA BASAK, J. ( 1 ) THIS appeal is directed against the judgment and order passed by the learned Single Judge on the 22nd December, 1976 whereby the learned Judge held that the notice issued in the instant case by the Respondents to the petitioners in the main writ-petition under Rule 10 of the Central Excise Rules 1944 (hereinafter referred to as the said Rules) is without jurisdiction inasmuch as the condition precedent to the issue of such a notice do not and have not been shown to exist and consequently the order of the Revisional Authority which purports to confirm the aforesaid notice is ex-facie erroneous. Accordingly, the learned Judge set aside the order of the Revisional Authority dated the 12th January, 1976 and to that extent, the Rule was made absolute. ( 2 ) THE facts of this case are as follows :-The writ-petitioner carries on business of manufacture of electrical insulators. One of the materials used in such manufacture is porcelain. As correctly set out by the learned Judge, the facts are as follows :-"item 23b of the Central Excise Tariff as contained in the first schedule of the Central Excise Act reads as follows : 23-B. Chinaware and porcelainware, all sorts, (4) Not otherwise specified. " ( 3 ) THE Central Board of Excise and Customs by its communication No. 5/24/61-CXV1 dated the 23rd September, 1961 laid down that articles of porcelain were fitted with metal parts should be charged to Central Excise Duty on the value of the finished goods, by a subsequent communication F, No. 5/8/64-CXV1 dated 28th November, 1967 issued by the Under Secretary, Central Board of Excise and Customs, New Delhi addressed to all Collectors of Central Excise it was further directed as follows :"the matter has since been reviewed and the Board consider that such articles should be assessed as follows : (1) Whether porcelain portion of the insulator etc. is cleared separately the same may be assessed to duty as porcelain-ware. (2) Where the insulator etc. are cleared fully assembled with metal parts fitted thereto, the same may be assessed to duty as porcelain-ware if the j value of porcelain-ware used in the assembly is more than 50% of the value of the finished goods, if it is less than 5096, then the same should not be assessed as porcelain-ware. (2) Where the insulator etc. are cleared fully assembled with metal parts fitted thereto, the same may be assessed to duty as porcelain-ware if the j value of porcelain-ware used in the assembly is more than 50% of the value of the finished goods, if it is less than 5096, then the same should not be assessed as porcelain-ware. " ( 4 ) BY a communication being I. R. No. 45 dated 23rd January, 1968 the above decision of the Board was communicated to the petitioner at its Porcelain Insulator Unit at Rishra. ( 5 ) THE petitioner's case is that it has acted in terms of the aforesaid orders and/or directions of the Central Board. Since the 28th November, 1967 insulators manufactured by the petitioner have been cleared without payment of Excise Duty where the value of the metal parts fitted thereto exceeded 50% of the total value of the product. Such clearances were made under the self-removal procedure after the approval of the Excise authorities and with full notice to and knowledge of such authorities. Thereafter another Notification being No. 152/71, dated the 26th July, 1971 was issued by the Central Government in exercise of its powers conferred under Article 8 (1) of the Central Excise Rules, 1944 which provided as follows :-In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, the Central Government hereby exempts electrical insulators made in porcelain classificable under sub-item (4) of Item 23b of the First Schedule to the Central Excises and Salt Act, 1944 (1) of 1944 from so much of the duty of excise leviable thereon as is in excess of ten per cent ad valorem. It will be convenient at this state to refer to Rule 8 (1) of the Central Excise Rules, 1944. This reads as follows :-"power to authorities exemption from duty in special cases (1) The Central Government may from time to time, by notification in the Official Gazette exempt subject to such conditions as may be specified in the notification any excisable goods from the whole or any part of duty leviable on such goods. . . . This reads as follows :-"power to authorities exemption from duty in special cases (1) The Central Government may from time to time, by notification in the Official Gazette exempt subject to such conditions as may be specified in the notification any excisable goods from the whole or any part of duty leviable on such goods. . . . " ( 6 ) ON 12th February, 1974 the petitioner received a communication being No. C. No. V (23b), 30th January, 1974/1544 of the same date issued by the Assistant Collector of Central Excise, Calcutta-IV Division which reads as follows :-"in terms of Ministry's Notification No. 152/71, dated 26th July, 1971 Electrical Insulators made of Porcelain falling under sub-item (4) of Item 23b of Central Excise Tariff are exempted from so much of duty at Excise leviable thereon as in excess of 10% ad valorem. 2. The assessability of articles of porcelainware fitted with metal parts was determined on the basis of the value of the porcelain-ware used in the assembly of the finished goods. 3. In supersession of all previous orders it has now been decided that the electrical insulators made of porcelain with or without metal parts are to be classified under Tariff Item 23b (4) on the value of the goods at the point of clearance including the value of the metal parts, if any, fitted thereto and irrespective of the proportion of such metal. " ( 7 ) THE admitted position is that subsequent to the issue of the said notice the petitioner had been clearing insulators of its manufacture on payment of excise duty irrespective of the value of metal parts fitted therein. The trouble arose regarding the period from 28th November, 1967 to 12th February, 1974 when the petitioner was communicated by the 30th January, 1974 letter of the Assistant Collector. During this period such goods had been cleared on the existing basis. Thereafter the petitioners were issued with the show cause notice No. 12/74 dated the 25th March, 1974 which reads as follows :-"whereas it appears that the following duties have not been paid by you and whereas the said amount is recoverable from you under Rule 10 of Central Excise Rules 1944, you are hereby required to show cause to the Assistant Collector of Central Excise, Calcutta IV Division, Calcutta, why you would not be required to pay the said amount. (i ). . (i ). . . (ii) Period to which the non-payment of duty relates 21st January, 1974 to 9th February, 1974. (iii) Amount to Duty involved : Rs. 19,401. 10 @ 10% ad valorem. (iv) Grounds on which the aforementioned amount is proposed to be recovered : In supersession of all previous orders it has now been decided that the electrical insulators made of porcelain with or without metal parts are to be classified under Tariff Item 23 (b) (4) on the value of the goods at the point of clearance including the value of the metal parts, if any, fitted thereto and Irrespective of the proportion of such - metal. . . . " ( 8 ) AFTER receiving the reply the Assistant Collector gave a personal earing to the petitioner, as prayed for, and passed an order against the petitioner in this matter. Against the same the petitioner preferred an appeal which appeal was rejected and the revision petition was also rejected. Then, the petitioner moved this application. ( 9 ) AN affidavit was affirmed by one Parimal Mohan Ganguly, the Assistant Collector of Central Excise, Calcutta. Paragraph 13, 14, 15, 16 and 35 of the said affidavit are set out herein below :-"with reference to the allegations contained in paragraphs 12 and 13 of the said petition I crave reference to the order in Revision dated December 4, 1975, relevant provisions of law, particularly Rules 10 and 173j of the said Rules and the records for ascertaining the terms, scope and effect thereof. Save what will appear therefrom I deny the allegations which are contrary thereto and/or inconsistent therewith. In this connection I say that the requirement of law at the material time was that the petitioner should have paid duty @ 10% ad-valorem on the electrical insulators at the time of removal of the same from the place of production. The rate of duty as specified in Column 3 of item 23b of the first schedule during the material time was 20% ad valorem. The Central Government by the said notification dated July 26, 1971 reduced the rate of duty leviable on petitioner's products, namely, electrical insulators made of porcelain. The earlier tariff interpretation of the Board dated November 28, 1967 was in the form of instructions to officers of the Department concerned in the matter of assessment of electrical insulators made of porcelain. The Central Government by the said notification dated July 26, 1971 reduced the rate of duty leviable on petitioner's products, namely, electrical insulators made of porcelain. The earlier tariff interpretation of the Board dated November 28, 1967 was in the form of instructions to officers of the Department concerned in the matter of assessment of electrical insulators made of porcelain. In this connection I crave reference to the provisions of Rule 8 (2) of the said Rules and say that for fulfilling the requirements of the said Rule Board has to issue special order in each case under circumstances of an exceptional nature. Board's letters dated November 28, 1967 and January 21, 1974, apart from being in the nature of departmental instructions, were general in nature regarding assessment of all such insulators produced by manufacturers all over India. It cannot be construed that those letters can possibly lay down any law in the matter of assessments of electrical insulators made of porcelain. 1 repeat that the Board's letter dated January 21, 1974 confirmed the position in law created by Notification No. 152/71 dated July 26, 1971. The reason for not rescinding the earlier tariff interpretation dated November 28, 1967, with effect from the date the said notification came into force, may be ascribed to error inadvertence or misconstruction on the part of the office (s) including the assessing or jurisdictional officers, who were required to be guided by the Government of India's notification which had an overriding effect to any interpretation given by the Board. I further say that Rules 10 and 173j of the said Rules provide for recovery of duty or charges short levied or erroneously refunded. I further say that Rules 10 and 173j of the said Rules provide for recovery of duty or charges short levied or erroneously refunded. Rule 10 provides that in respect of duties or charges which have been short levied through inadvertence, error, omission or misconstruction on the part of the officer, the proper officer may within three months serve a notice on the person from whom such deficiency in duty or charges is or are recoverable requiring him to show cause to the Assistant Collector, why he shall not pay the amount specified in the notice In this connection 1 crave further reference to the provisions of Rule 173j of the said Rules and say that as the petitioner was working under the provisions of Chapter VIIA of the said rules during the material time the provisions of Rule 10 shall apply, to the petitioner company, as if, for the expression three months the expression one year was substituted. The determination of duty on electrical insulators by the petitioner company and the assessment of the petitioner's products not in accordance with Column 3 of Item 23b (4) read with relevant notification amounts to error and/or mis-construction on the part of the officers of the Department. " (para 13)"with regard to the allegations contained in Paragraph 14 of the petition 1 crave reference to the relevant provisions of law, Notification No. 152/71, dated July 26, 1971, the Central Board of Excise and Custom's letters dated November 28, 1967 and January 21, 1974 and the order in revision dated December 4, 1975 for ascertaining the true terms, scope and effect thereof. 1 say that the departmental instructions do not have the force of law and the interpretation of tariff as given by the Board on November 28, 1967, with nothing but a departmental instruction and ceased to have any effect with the publication of the Notification in the Original Gazette. Board's letter dated January 21, 1974 was also a departmental instruction which confirmed the position in law created by the Notification dated July 26, 1971. Save as aforesaid and save what will appear from the relevant records all the allegations contained in the said paragraph are denied. Board's letter dated January 21, 1974 was also a departmental instruction which confirmed the position in law created by the Notification dated July 26, 1971. Save as aforesaid and save what will appear from the relevant records all the allegations contained in the said paragraph are denied. In particular I deny that there is no direction or order of the Board, dated January 21, 1974 or that the same has been wrongly alleged in the order dated December 4, 1975 of the Joint Secretary to the Government of India or that the Assistant Collector had no power or authority or jurisdiction to issue any direction such as the communication dated February 12, 1974 or that the said communication has been made without any jurisdiction or that the same is a nullity as alleged or at all. I further deny that the Assistant Collector had no power or authority or jurisdiction to supersede the earlier order of the Board dated November 28, 1967 or that the communication dated February 21, 1974 was a purported communication or that the same is illegal or void or inoperative as alleged or at all. " (para 14)"with reference to the allegations contained in Paragraph 15 of the said petition I crave leave to refer to Rule 8 of the said Rules and Board of Excise and Custom's letter dated November 28, 1967 and January 21, 1974 for ascertaining the true terms, scope and effect thereof and save what will appear therefrom I deny the allegations contained in the said paragraph. I say that the Central Board of Excise and Custom's letter dated November 28, 1967 was in the form of instruction to all the Heads of Department, namely, Collectors of Central Excise in relation to Item No. 23b of the First Schedule. 1 say that the said order cannot be treated as a Special Order within the meaning of Sub-rule (2) of Rule 8 of the said Rules. The requirements of the said Rule 8 (2) are that the Board should issue special order in each case under circumstances of an exceptional nature. Board's letter dated November 28, 1967, apart from being in the nature of departmental instruction, was general in nature, covering assessment of all such insulators produced by manufacturers all over India. The requirements of the said Rule 8 (2) are that the Board should issue special order in each case under circumstances of an exceptional nature. Board's letter dated November 28, 1967, apart from being in the nature of departmental instruction, was general in nature, covering assessment of all such insulators produced by manufacturers all over India. I further say that the said order dated November 28, 1967 ceased to have any effect on and from July 26, 1971 when the said Notification, dated July 26, 1971 came into force. 1 say that the petitioner's alleged plea that the said letter dated November 28, 1967 was issued by the Central Board of Excise and Customs in exercise of the powers conferred upon it by Sub-rule (2) of Rule 8 is without any basis whatsoever and the same has been introduced with a view to mislead this Hon'ble Court. In view of what has been stated hereinbefore the Government of India in the order in revision correctly felt that the said letter of the Board merely interpreted the tariff and did not lay down any law and the assessment was not made in accordance with tariff due to misinterpretation thereof, within the meaning of error or misconstruction. In particular, I deny that the said Order dated December 4, 1975 discloses apparent or any error on the face of it or otherwise as alleged or at all. " (para 15)"with regard to the allegation contained in Paragraph 16 of the said petition I crave leave to refer to the relevant records, the provisions of law and save what appears therefrom deny all allegations to the contrary. 1 say that during the material period electrical insulators should have been removed by the petitioner Company after determination of duty at rate prescribed in the First Schedule. I say that if no objection was raised by the concerned officers of the department in respect of the said removal of the electrical insulators without payment of duty or at nil rate of duty during January 21, 1974 to February 9, 1974, the same was either due to error or misconstruction of law. I say that if no objection was raised by the concerned officers of the department in respect of the said removal of the electrical insulators without payment of duty or at nil rate of duty during January 21, 1974 to February 9, 1974, the same was either due to error or misconstruction of law. Rule 10 and 173j of the said Rules clearly provide that if any duty is short levied due to error or misconstruction on the part of the office, the same may be recovered within a period of one year from the date of removal of the goods on a notice to the assessee to show cause why duty so short levied should not be recovered. In the instant case due notice under Rule 10 was served on the petitioner company and the same was duly confirmed by the Assistant Collector strictly in conformity with the provisions of law. I say that there are adequate provisions under the said Act to raise demands for duty in cases of non-levy also. Save as aforesaid and save what will appear from the records 1 deny the allegations contained in the said paragraph. In particular it is denied there was no levy of excise duty on those articles as no duty was payable thereon during the said period as alleged or that Rule 10 of the Central Excise Rules is inoperative or inapplicable in the instant case or that the impositions of duty for this period is without jurisdiction or illegal or nullity as alleged or at all". (para 16)The said affidavit was verified as follows :-The statements made in Paragraphs 1, 2, 4 to 14, 15 except "i say that the said order cannot be treated. . . July 26, 1971 came into force", 16 to 32 of the foregoing affidavit are true to my knowledge, those contained in Paragraph 3 hereof are based upon information derived from records and believed by me to be true and those contained in rest of the foregoing affidavit are my humble submissions before this Hon'ble Court", (para 35) ( 10 ) VARIOUS contentions were raised in respect of the petition before the learned Trial Judge. However the learned Trial Judge decided the case and allowed the application on the ground that this was not a case coming under Rule 10 which is set out hereinbelow :-"10. However the learned Trial Judge decided the case and allowed the application on the ground that this was not a case coming under Rule 10 which is set out hereinbelow :-"10. Recovery of duties or charges short-levied or erroneously refunded.- When duties or charges have been short-levied through inadvertence, error, collusion or mis-construction on the part of an officer or through mis-statement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied has been owing to any such cause, erroneously refunded, the person chargeable with the duty or charge, so short-levied, or to whom such refund has been erroneously made, shall pay the deficiency or pay the amount paid to him in excess, as the case may be, on written demand by the proper officer being made within 3 months from the date on which the duty or charge was paid or adjusted in the owners account-current, if any, or from the date of making the refund. " ( 11 ) THE learned Judge in this context stated as follows :"ex-facie the Rule appears to me to be applicable where the short-levy has been caused by any of the following reasons : (a) Inadvertence (b) Error (c) Collusion (d) Mis-construction On the part of the Officer concerned or, (a) Mis-statement as to quantity (b) Mis-statement as to description (c) Mis-statement as to value; Of the goods on the part of owner or where the duty or charge after having been levied has been owing to any such cause refunded. " ( 12 ) IT has not been shown to me either from the records or from the affidavit-in-opposition that any of such grounds existed in the instant case. It has been stated from the Bar that the Department has proceeded under the said Rule 10 and on no other Rule. ( 13 ) HIS notice in my opinion cannot be stated to be a notice under Rule 10. Condition precedent for the issue of the notice under Rule 10 have not been shown to be existing when this notice was issued. ( 14 ) FOUR decisions were cited before the Trial Judge on this point. They are, J. K. Steel Ltd. v. Union of India and Ors. ,; N. B. Saniana v. The Elphinstone Spinning and Weaving Mills Co. ( 14 ) FOUR decisions were cited before the Trial Judge on this point. They are, J. K. Steel Ltd. v. Union of India and Ors. ,; N. B. Saniana v. The Elphinstone Spinning and Weaving Mills Co. Ltd. , A. I. R. 1971 S. C. at Page 2029; R. K. Audin and Ors. v. Special Steel Ltd. , Bombay and Anr. ,; and Assistant Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd. . ( 15 ) THE learned Advocate for the appellant-department has not advanced any fresh submission before us apart from what he has submitted in the Court below. The only point sought to be made out before us is that if we find that this case comes under Rule 10, then we must hold accordingly. ( 16 ) IN our opinion this argument has got no basis. Obviously Rule 10 is attracted. The question is how it has to be applied. The learned Counsel cited various cases wherein it has been stated that if it comes under the scope of Rule 10 it is to be applied even if Rule 10 is not mentioned specifically. This question does not arise here. This was not the case of the petitioners before the lower Court. Rule 10 is specifically mentioned in the Notice itself and that is the only Rule which has been referred to therein. But the question is something different. The question is whether sufficient facts and materials have been brought before us to show that it comes under Rule 10. The learned Judge has rightly pointed out what are the conditions to be fulfilled before Rule 10 can be attracted. He has rightly held that in the facts of this case Rule 10 is not attracted. In this context we are in perfect agreement with the learned trial judge. ( 17 ) IN this case reliance has been placed on behalf of the appellant on certain facts which we have set out above. It would be noticed that of although obviously it is the subject matter of various Government records, no reliance has been placed on any record but it is based on knowledge of the deponent. No record was also produced before us at the time of the hearing in support of what has been stated in the affidavit. It would be noticed that of although obviously it is the subject matter of various Government records, no reliance has been placed on any record but it is based on knowledge of the deponent. No record was also produced before us at the time of the hearing in support of what has been stated in the affidavit. The entire averment made in the affidavit-in-opposition makes it clear that this kind of information could be derived from the records only and not from any knowledge of any person. ( 18 ) THE main reason which is put forward is the letter of Board dated 21st January, 1974, which confirms the position in law created by Notification dated 26th July, 1971. The reason for not rescinding the earlier interpretation dated 28th November, 1967, with effect from the date of the said Notification coming into force has been stated to be 'may be' ascribed to error, inadvertence or mis-construction on the part of the officers concerned who were required to be guided by the Government of India's Notification which had overriding effect on an interpretation given by the Board. This is verified as true to his knowledge but again it is said 'may be'. Whether Rule 10 attracts or not is a question of fact. The conditions precedent have to be satisfied. It cannot be agitated on 'may be' and we are also not in a position to understand how one particular officer can say that Certain things were not done - 'may be' due to error, inadvertence or misconstruction on the part of any other officer. So, this cannot be true to his knowledge. ( 19 ) FOR the aforesaid reasons we are of the opinion that applicability of Rule 10 has not been made out in the facts and circumstances of this case. Moreover, we are in agreement with the learned trial judge that having regard to the facts of this case the provisions of Rule 10 is not attracted. After the Notification of 1971 came into force nothing happened. Nothing has changed in 1974. Even if there is any change, it is with prospective and not with retrospective effect and that has been given effect to by the petitioner upon communication. In such circumstances we are of the opinion that no case has been made out for applicability of Rule 10. Accordingly, we dismiss this appeal with costs.