W.P. No.868/2005 (s) 13.12.2011 Shri Deepak Okhade, learned counsel for the petitioner. Shri K. K. Singh, learned counsel for the respondents. Challenging the order dated 16.2.2002 passed by the Board of Revenue and the action of the respondents in imposing penalty under the M.P. Excise Act 1950 and recovering from the petitioner a sum of Rs. 3,14,926/- from the Bank Guarantee of the petitioner, this writ petition is filed. Having heard learned counsel for the parties and on perusal of the record it is seen that the action is initiated against the petitioner in view of the order passed by the Commissioner, Excise, Bhopal vide Annexure R/1 on 26.10.96. It is a specific case of the petitioner that before taking action neither any show cause notice was issued to the petitioner nor any opportunity of hearing is granted. Shri Deepak Okhade points out that in the order Annexure R/1 dated 26.10.96 reference is made to issuance of show cause notice but petitioner has categorically stated that show cause notice was neither issued to the petitioner nor was the same received by him. From the aforesaid fact it is clear that the main dispute is as to whether show cause notice was issued to the petitioner. Except for filing Annexure R/1 respondents have not brought on record show cause notice, date on which it was issued, manner in which it was issued to the petitioner and proof of the same received by the petitioner. In that view of the matter, contention of the petitioner has to be accepted. Accordingly it is held that impugned action is taken without notice to the petitioner and without hearing him and therefore, the same is unsustainable. Accordingly, this application is allowed. Or impugned dated 16.2.2002 is quashed. In case respondents wants, they may proceed afresh in the matter. However, if no action is taken within two months, respondents are restrain from proceeding further in the matter and in the said case recovered amount of Rs.3,14,926/- be refunded along with the interest. With the aforesaid this petition stands allowed and disposed of. c.c. as per rules. (RAJENDRA MENON) J U D G E mrs. mishra