9911796707
TMI Blog1986 (1) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 35P(2) of the Central Excises and Salt Act, 1944, to be disposed of as if it were an appeal filed before the Tribunal. 2. The facts of the case are not in dispute. Briefly stated, they are that the appellant is an independent processor, processing fabrics with the aid of power. The Central Government, acting in exercise of its powers under Rule 8(1) of the Central Excise Rules, 1944, issued on 18-6-1977, notification No. 135/77-C.E. which inter alia exempted handloom fabrics processed by independent processors to the extent of 60% of the duty payable thereon. This notification was superseded on 15-7-1977 by another one 226/77 in terms of which the aforesaid duty exemption remained unchanged. On 24-11-1977, Notification 226/77 was ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his impugned order dated 23-2-1981, observed that the appellant had applied for recognition as an approved independent processor only on 18-4-1978 and the approval was given on 11-9-1978, i.e. after the material period, and said that it was doubtful, whether the appellant could be given the duty benefit from a back date. He held that recognition as an independent processor was a condition precedent to the availment of the substantive right accruing under the amended notification. On this basis, the appeal was rejected. It is against this order that the appellant is now before us. 3. We have heard Dr. P.V. Jois, Advocate for the appellant and Shri D.K. Saha, Departmental Representative for the respondent. 4. The issue for determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In reply, Shri Saha, D.R. submitted that approval in terms of the amended notification was a must before the appellant could become entitled to the exemption. Government had not issued any instructions to the contrary. Therefore, the orders of the lower authorities were correct and did not call for any interference. 7. We have carefully considered the submissions of both sides. It is evident that on 25-11-1977, the date of the amendment brought about by Notification 323/77 dated 24-11-1977 came into force, the appellant could not have been in possession of the requisite approval in terms of the amendment. If the intention was clearly to enforce the requirement as an inevitable condition prior to the grant of the relief, it is reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constituents and advised them to forward the required particulars to the State Director of Handlooms (Annexure B, Paper Book). On 18-4-1978, the appellant forwarded the required data to the State Director and requested for grant of necessary registration as an approved processor for the purpose of Notification 323/77 (Annexure C, Paper Book). In the meanwhile, it appears that excise authorities were making demands for differential duty for clearance of processed handloom fabrics from 25-11-1977, pending approvals . The appellant took up the matter with the State Director, Nagpur on 6-7-1978 (Annexure E, Paper Book). It appears that the Association also met the Member, C.B.E.C. on 6-10-1978 when, according to the Association, the Member is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground it would be reasonable to hold that the appellant had not acquired the status of an approved independent processor for the purpose of the notification during the aforesaid period but had acquired such status only after 18-4-1978. Even presuming for the sake of argument that the approval accorded by the authority on 11-9-1978 could be related back to the application made on 18-4-1978. 9. The contention of the Counsel for the appellant that the approval, though given on 11-9-1978, should be deemed to relate back to the date of coming into force of the amending notification, namely, 25-11-1977 is, in our view not tenable, in view of the reasoning given in the preceding paragraph. 10. The Counsel for the appellant had cited certain d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion placing a monetary limit on the total value of tyres cleared by a manufacturer during the preceding financial year and held that the condition required was that if there had been clearances during the preceding financial year their value should not have exceeding the prescribed limit. On this basis, the Tribunal held that the appellant in that case, who had not cleared any tyre during the relevant preceding financial year, was entitled to the concession in the relevant financial year. We fail to see the relevance of this decision to the facts of the present case. 12. Thirdly, we were referred to the Allahabad High Court s decision in Satya Narain Aggarwal and Another v. The Government of India and Others, 1978 E.L.T. J 476. The releva ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
