V. K. SINGHAL, J. ( 1 ) JURISDICTION of the commissioner for central excise, Bangalore in issuing the show-cause notice dated 10-7-1998 have been assailed on the ground that there is no iota of evidence and therefore the notice is without jurisdiction. ( 2 ) THE petitioners are holding central excise registration and are engaged in the manufacture of various grades of polyester chips, polyester films, overhead projection transparency film, in roll form as well as in sheet form classifiable under chapter 39 of the central excise tariff Act, 1985. A detailed classification declaration as per prescribed form under the Rule 173-b of the rules was submitted on 12-10-1995. The items were classified under sub-heading 3926. 90 of the tariff act. There had been number of correspondence thereafter and it is stated that the process carried on was examined and verified from time to time. It is pointed out that the commodity in question falls under tariff item No. 3921 if no grinding is done. The petitioner has developed a machinery which has eliminated the process of grinding. It is pointed out that the machinery is developed in the factory itself for which the information was also given to the respondent, though it was not required to be given and necessary certificates obtained from various departments have been submitted. Petitioner moved an application on 15-4-1998 for change of the classification. It is stated that no action was taken on the basis of the said letter. On 12-6-1998 the factory premises were inspected. The statement of the general manager were recorded which the respondents are misinterpreting and on that basis the classification is sought to be revised applying extended period of limitation ignoring the letter dated 15-4-1998. ( 3 ) LEARNED counsel for the petitioner has relied on the decision given in the case of Mafatlal Industries Limited v Union of India, wherein the question of jurisdiction of the civil court was examined and it was observed that the jurisdiction of subordinate court will not be ousted in those cases coming within the three categories mentioned in paras 5 and 29 subject to the conditions mentioned thereunder in para 30. In this case extracts of h. w. r. wade and c. f. forsyth administrative law, seventh edition (1994) were reproduced as under:"jurisdiction over fact and law summary: at the end of a chapter which is top heavy with obsolescent material it may be useful to summarize the position as shortly as possible. The overall picture is of an expanding system struggling to free itself from the trammels of classical doctrines laid down in the past. It is not safe to say that the classical doctrines are wholly obsolete and that the broad and simple principles of review, which clearly now commend themselves to the judiciary will entirely supplant them. A summary can therefore only state the long established rules together with the simpler and broader rules which have now superseded them, much for the benefit of the law. Together they are as follows: errors of fact old Rule the court would quash only if the erroneous fact was jurisdictional. New Rule the court will quash if an erroneous and decisive fact was (a) jurisdictional (b) found on the basis of no evidence or (c) wrong, misunderstood or ignored. Errors of law old Rule (a) jurisdictional; or (b) on the face of the record new Rule the court will quash for any decisive error, because all errors now jurisdictional". reliance is also placed on the decision given in the case of Victory Glass and Industries v Collector of Central Excise, wherein it was observed that demand-cum-show-cause notice is quashable at the stage of show-cause notice itself when party is liable to exposure to unnecessary harassment. Reliance is placed on applied Industrial Products Private Limited v Collector of Central Excise, Bangalore. It was observed that unless a prima facie case is made out by the department, it will be a fit case for interference at show-cause notice stage. In the case of Renu Tandon v Union of India, it was observed as follows:"it is true, ordinarily, the high court in its extraordinary writ jurisdiction, should not interfere in such matters and the parties should be left to deal the same, there is no bar to interfere in such matters when the court feels that is not necessary to insist upon a party that it should first suffer and submit itself to the jurisdiction which is being wrongly exercised without any basis or material. There are numerous cases both of high court and the Supreme Court wherein such matters have been interfered and found that the petitioner is being harassed for no fault of his or her of the department in spite of the fact than an alternative remedy was available to the petitioner. These are all self-imposed restrictions by the court itself and there is no legal bar provided under Article 226 of the Constitution of india". reliance is also placed on the judgment given in the case of Whirlpool Corporation v Registrar of Trade Marks, Mumbai, wherein it was observed that high court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction. A writ can be issued against the authority shown to have no jurisdiction or had purported to usurp the jurisdiction without any legal foundation. In the case of Prabhu Steel Industries Limited v Collector of Central Excise, wherein it was observed that mere change in opinion as to correct classification/description of inputs is not sufficient to invoke the extended period of limitation particularly when there is no concealment of true facts. ( 4 ) LEARNED standing counsel for the department relied on the decision given in the case of M/s. Jaishri Engineering Company (Private) Limited v Collector of Central Excise, Bombay, wherein it was observed that to find out whether there was any fraud, collusion, wilful misstatement or suppression of fact for the department to be justified to claim duty beyond a period of six months is a question of fact. ( 5 ) I have considered over the matter. Writ under Article 226 of the Constitution is maintainable if the notice is without jurisdiction. The word 'jurisdiction' was considered by the apex court in the case of Kiran Singh v Chaman Paswan. It was observed that it is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. It was observed that it is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject-matter of court to pass any decree, such a defect cannot be cured even by consent of parties. ( 6 ) IN tax matters, there is no defect in entertaining the writ petition where the notice issued is without jurisdiction whether pecuniary or territorial. Dispute arises where the jurisdiction on the subject-matter is elsewhere. In my opinion, the court has to see whether the various ingredients to the Section has been fulfilled while exercising the power of issuing the notice and for that purpose beside the requirement of the Section it has to be seen whether there is proper material to come to that conclusion. If there is no material then the notice would be considered to be without jurisdiction and writ of the nature prescribed under Article 226 could be issued. ( 7 ) IN the light of the observations made above it has to be seen whether the various ingredients of the Section in the notice are in existence or not. It may be a different question that ultimately the same authority who has issued the notice or the higher authorities may come to a different conclusion but a finding to the effect that on the basis of material on record Provisions of the Section are violated or are applicable if recorded in the notice it could not be considered to be without jurisdiction. The ingredient of Section 11-a are mentioned in the notice. It is on the basis of statement of the general manager which has been taken into consideration and of which a clarification has already been submit- ted by the petitioner, the notice has been issued. Sufficiency of the material cannot be examined at the stage of issue of notice. It is the existence of some material and formation of reasonable belief for invoking the Provisions which is sufficient for issue of notice. Sufficiency of the material cannot be examined at the stage of issue of notice. It is the existence of some material and formation of reasonable belief for invoking the Provisions which is sufficient for issue of notice. Now to come to the conclusion that the Provisions of Section 11-a for the extended period of limitation could be invoked, it will have to be examined by the authorities on the basis of the evidence available with them. Petitioner may also submit further evidence, clarification or explanation which may go to the very root of the jurisdiction of the authority concerned. But so long as there is some basis for issue of notice it would not be proper to invoke the extraordinary jurisdiction. Petitioner may submit the reply within 6 weeks from today to the respondent and may submit such other evidence or clarification substantiating that the notice issued is based on wrong facts. Since the factual foundation has been laid down in the notice itself in the light of the observations made by the apex court in the case of M/s. Jaishree engineering company (private) limited, supra, the existence of the material being a factual dispute, no case for interference is made out. Petition is dismissed. --- *** --- .