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TMI Blog1987 (3) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,25,000/- were allowed in respect of unclassified motor vehicle parts subject to the condition (i) that the Capital Investment on Plant Machinery in the factory was below Rs. 10 lacs and the clearance value of such parts and accessories during the period 1-4-1978 to 28-2-1979 did not exceed Rs. 27,50,000/-. For the period 1-4-1979 to 9-5-1979 clearances upto Rs. 2,00,000/- was exempted from duty under Notification No. 146/79, dated 30-3-1979 subject to the condition that the capital investment on plant and machinery was below Rs. 10,00,000/- and the clearance value of the goods under Tl 68 during the previous financial year 1978-79 did not exceed Rs. 30,00,000/-. Unclassified motor vehicle parts and accessories fell under TI 68 from 10-5-1979 when the Finance Bill was enacted. 3.The controversy in this case arose out of three show cause notices. The first show cause notice is, dated 30-8-1978 and related to the period 1-3-1979 to 30-4-1979. In this show cause notice it was alleged that the appellants had cleared more than the value admissible for exemption i.e. from 1-4-1978 to 28-2-1979 they have cleared goods for Rs. 28,65,789.01. 4.The second show cause notice was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all under Item 34A from 1-3-1979 and supplied as original equipment and that the manufacturers were entitled to the benefit of Notification No. 74/79 He urged that such additional claims could be raised and it would not change the nature of the enquiry. The powers of the Tribunal are very wide and depended upon sound judicial discretion. He relied on the following rulings :- (1) 1984 (18) E.L.T. 476 (2) 1985 E.C.R. 2409 = 1987 (29) E.L.T. 1001 (3) 1984 (15) E.L.T. 186. 8.S. Shri A.K. Jain, SDR submitted that this is a new claim and that the appellants should not be allowed to raise any grounds which were not raised before the Appellate Collector. Emphasis was laid on the doctrine of merger. The SDR relied on 1987 (164) I.T.R. 1987 (MP), 1986 (157) I.T.R. 549 (Kar) and 1967 S.C.R. Vol.1 463 and also 1986 (154) I.T.R. 277. 9. On a perusal of the documents, we found that it was not a new claim and that the appellants have referred to the exemption under this notification even in their reply to the show cause notice. As the contentions have been put forward at the earlier opportunity, and the matter involves classification, in the interest of justice we allow the appellants t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly from 1-4-1979 for goods falling under 34A. In the absence of licence, the appellants are not entitled to the benefit of the notification. He relied on A.I.R. 1976 (S.C.) 2221 and also Order No. 127/84-C, dated 29-2-1984 and Order No. 98/84-C dated 22-2-1984. 1984 (17) E.L.T. 127 was also cited. He urged that the question of time bar was not raised by the appellants and that they cannot raise the plea now. 1983 (12) E.L.T. 728 (Mad) and 1983 (14) E.L.T. 1870 = 1983 E.C.R. 1854 were cited. It was contended that Rule 9(2) made mention of only a written demand and not a show cause notice. The charges were specific in this case and no prejudice has been caused. Notification No. 75/79 cannot be applicable because the appellants have not claimed the benefit of the notification and they have not followed Chapter 10 procedure. In regard to Notification No. 89/79, the SDR submitted that from the date of Finance Bill, the rate of duty was 8% on non-specified items under 34A which was the same as Item 68 goods. Even non-specified items under Tl 34A should be taken into account for the purpose of determining the 30 lacs mentioned in Notification No. 89/79. The ruling 1986 (24) E.L.T. 492 = 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid First Schedule, and (ii) in relation to any concession in respect of any such parts or accessories, the procedure set out in Chapter X of the said rules is follows. The Notification No. 74/79 would, therefore, apply to assembled components. In this case, the parts are stated to have been used as original equipments and hence Notification No. 75/79 alone would be attracted. Thus applicability of Notification No. 75/79 has to be considered by the lower authorities. We must point out that the appellants have raised this plea specifically in reply to the show cause notices but it was not considered. The appellants have now raised the plea by way of additional grounds and we are of the view that the applicability of this notification has to be considered by the department. This would relate to the period 1-3-1979 to 30-4-1979 covered by the first show cause notice. Shri A.K. Jain argued that the benefit of notification should have been claimed even at the time of clearance. In this case, we find that the appellants have supplied the parts as original equipment to TELCO and even their GP. II discloses such a supply. They have also set out this claim in their reply notice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es have construed this notification as one issued solely for goods under 34A. They have interpreted this notification against the appellants on the ground that during the preceding financial year, the aggregate value of the clearances had exceeded Rs. 30 lacs. This interpretation is fallacious because the restriction is to said goods . If a manufacturer had cleared Item 68 goods during preceding financial year exceeding Rs. 30 lacs, the benefit of Notification No. 89/79 could not be extended to him. In this case, the appellants have not produced Item 68 goods exceeding Rs. 30 lacs. They have produced Item 34A goods but the benefit of Notification No. 89/79 cannot be denied to them on that account. Each notification has to be read distinctly and if the intention was to deny the benefit to manufacturers of goods other than 68 also, the Govt. would have used the phraseology as in Notification No. 146/79. In the absence of such a wording the benefit of Notification No. 89/79 cannot be denied to the appellants. The contention that the appellants have not taken out a licence has to be rejected because even the Appellate Collector has set aside the penalty imposed on that account. Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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