( 1 ) IN view of the facts and circumstances of the case, as also affidavits have been exchanged, the writ petition is being disposed of finally at admission stage. ( 2 ) THE petitioner seeks quashing of the letter dated 12-3-1996 (Annexure-6 to the writ petition)and also the order referred therein dated 23-2-1996 (Annexure-4 to the counter affidavit ). ( 3 ) THE short facts are, the petitioner-company has its factory at Rampur where it is manufacturing photocopy/photocopier machines which are excisable commodities. They are also repairing these machines may where brought back into the factory for refurbishing, to bring them back to their original factory quality. The details of which is not necessary for us to refer for the purpose of the disposal of the present petition. Earlier the petitioner made an application under rule 173h of the Central Excise Rules since nothing was heard from the Collector, Central excise, Meerut, hence the petitioner again submitted an application on 9-1-1992 for relaxation of the period of one year upto a period of five years on which the permission was granted within a relaxation of time limit from one year to five year. The petitioner thereafter filed an application on 2-12-1993 requesting the Collector, Central Excise to enhance the period of relaxation already granted on 17-11-1992 from five years to eight years. The Collector, Central Excise accepted the claim of the petitioner on 17-2-1994 as since 1992 the petitioners have been regularly availing the said facility. In spite of this the petitioner was surprised to receive the impugned letter dated 12-3-1996 from Respondent No. 2 which records the rejection order passed by the Commissioner/collector, Central Excise on 23-2-1996. It also withdraws, even in respect of permission granted earlier by means of order dated 17-11-1992. The challenge is, since no opportunity was given to the petitioner by the Commissioner before passing this order it is liable to be rejected. The learned Counsel for the petitioner placed reliance on Rule 173h of the said Act which is as under : "1. Except as hereinafter provided no excisable goods or parts thereof on which duty has been paid shall be brought into, or retained, in a factory or a warehouse. 2. The learned Counsel for the petitioner placed reliance on Rule 173h of the said Act which is as under : "1. Except as hereinafter provided no excisable goods or parts thereof on which duty has been paid shall be brought into, or retained, in a factory or a warehouse. 2. An assessee may, subject to such condition as may be specified by the Collector, retain in, or bring into, his factory or warehouse, excisable goods or parts thereof, accompanied by duty paying documents, if such goods or parts thereof, (a) are required for use in the manufacture of other goods in the factory; or (b) are required in the factory for construction, repairs or for use as fitting or equipment or for any other purpose for which such goods are normally consumed; or (c) need to be re-made refined, reconditioned repaired or subjected to any similar process in the factory; or (d) cannot be transported due to circumstances beyond the assessees control, such as, the suspension of booking on railways, no-availability of railway wagons or the breakdown of carriers; or (e) are required for test or for study of designs or methods of constructions : provided that where such goods or parts thereof are required to be brought into the factory or warehouse of an assessee for any of the purposes specified in the clause (c) such goods or parts thereof shall be brought into such factory or warehouse within a period of one year from the date of their initial removal from the factory or warehouse or within the period of warranty or guarantee provided in respect of such goods by the assessee, whichever is more. " ( 4 ) ON the question of opportunity the learned Counsel placed reliance in the case of Collector of central Excise, Patna v. I. T. C. Limited and Anr. 1995 (2) SCC 38 . This was a case where liability of the assessee was enhanced. It is held the assessee must be given an opportunity of meeting the grounds which is minimum requirement of the principle of natural justice. This case interprets Rule 9b (5) of the Central Excise Rules, 1944. 1995 (2) SCC 38 . This was a case where liability of the assessee was enhanced. It is held the assessee must be given an opportunity of meeting the grounds which is minimum requirement of the principle of natural justice. This case interprets Rule 9b (5) of the Central Excise Rules, 1944. ( 5 ) NEXT reliance was placed in the case of L. Hirday Narain v. Income Tax Officer - AIR 1971 (33) (V. 58 C 4) Honble Supreme Court held, "if a statute invests a public officer with authority to do an act in a specified set of circumstance it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist, even if the words used in the statute are prima facie enabling, the courts will readily infer a duty to exercise power which is invested in aid of enforcement of right-public or private of a citizen. " ( 6 ) FINALLY reference is also made of the case of Shriram Refrigeration Industries Ltd. v. Collector of Central Excise - 1986 (26) E. L. T. 353 which also considered the same Rule 173h; "just because of inter-mixing of identical parts as between defective compressors of same model and specification because of the large scale batch operation, it cannot be said that the re-assembled or repaired compressors were not in the same form as those brought into the factory nor could it be said that re-assembled or repaired compressors were commercialy distinct article as compared to the goods that were brought into the factory for repairs. It is hardly material if serviceable part of one, on re-assembly, go into the other and vice versa. Therefore, the appellants activity was one of repair/reconditioning/remarking which did not amount to manufacture of any new article and they are entitled to the benefit of Rule 173h. " on the facts as spelt out from the impugned order and the stands of the respondents in the counter-affidavit it is clear that the petitioner was not given any opportunity. Therefore, the appellants activity was one of repair/reconditioning/remarking which did not amount to manufacture of any new article and they are entitled to the benefit of Rule 173h. " on the facts as spelt out from the impugned order and the stands of the respondents in the counter-affidavit it is clear that the petitioner was not given any opportunity. ( 7 ) FOR the respondent learned Counsel for the Union of India, Shri A. K. Gupta contends since the petitioner made the representation for extension of period and if authority finds that it is not fit to grant extension, it does not require any opportunity as it is also not to be found in the rules. In paragraphs 8 to 15 of the counter-affidavit the stand taken therein is that the petitioner continued availing the facility under Rule 173h (2) (c ). But on perusal of the monthly report submitted by the petitioner through the range office it was noticed that in some of the cases, the repairing cost of the machine i. e. the value of the part replaced exceeded by 30% to 73% approximately of the value before repair. The petitioner is changing maximum of its part and Converting the old machines into new one, which amount to manufacture which is in contravention of the condition laid down in the aforesaid permission granted to the petitioner. The modus operandi is that the petitioner purchases old machines through its Head Office from their leasing company. After fixing certain value of the old machines send the same to the petitioner on a challan for refurbishing/repairing and on its receipt into the factory an intimation regarding the receipt of the duty paid goods into the factory is submitted in Form D (3 ). Thereafter they dismantle at least 6 to 8 machines at a time and replace the parts with new one. During this process it is not possible that a particular part of particular machines is fitted into that very machines. The petitioner purchases old machines not for repairment as the same is not given to the same customer but sells it to any one by the authority. ( 8 ) THIS inference drawn as stated in the counter-affidavit is without confronting to the petition. It is true that Rule 173h there is no specific reference of giving an opportunity. However the law is well settled in this regards. ( 8 ) THIS inference drawn as stated in the counter-affidavit is without confronting to the petition. It is true that Rule 173h there is no specific reference of giving an opportunity. However the law is well settled in this regards. If any adverse inference is drawn fixing any liability on an assessee based on materials and points raised by the authorities, which was never confronted earlier then on the principle of fair play and principle of natural justice, it is incumbent of the authority concerned to confront all these to assessee of course this will depend on the facts and circumstances of each case. Under this rule a person opportunity as a right. ( 9 ) IN the present case We find that the Commissioner order as recorded in the letter dated 12-3-1996 is in two parts. (1) Order withdrawing earlier permission granted to the petitioner. A valuable right accrued in favour of petitioner and that has been taken away without giving any opportunity, hence this part of the order cannot be sustained. (2) The rejection of the representation of the petitioner for further extension of the period from 5 to 8 years and as per counter-affidavit aforesaid on the materials disclosed therein. As per inference on material the department case is that it is a case of manufacture not repairs. ( 10 ) HOWEVER on the date and details worked out the assessee should have been confronted with these materials and inferences as to why not this be treated as a case of manufacture. This admittedly not done, even this part of order of the Commissioner which is Annexure-4 to the counter-affidavit which is also referred in the letter dated 12-3-1996 (Annexure-6 to the writ petition) is not sustainable. Accordingly we quash the said orders and direct the said authority to pass fresh orders after giving an opportunity to the petitioner in accordance with law. The petitioner will file a certified copy of this order within three weeks before the said authority. The commissioner will pass a fresh order without prejudice of this order in accordance with law. ( 11 ) THE petition is allowed. ( 12 ) A certified copy of this order may be given to the learned Counsel for the parties on payment of usual charges within ten days. .