9911796707
TMI Blog1987 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed on 2-12-1986 against the Collector s order dated 19-12-1981, was time-barred. 2. Shri Chander Kumar, advocate for the appellants, controverted Shri Bhatia s arguments as follows :- (i) The Collector s order was endorsed also to the present appellants. Therefore, they should be deemed to be an aggrieved party and to have locus standi; (ii) The order was clearly one made by the Collector as an adjudicating authority. It had the effect of withdrawing a facility which had been thrust upon Messrs Coromandel Fertilizers and the present appellants; and (iii) In its order dated 5-11-1986 on Writ Petition No. 9891 of 1981, filed by the appellants, the Hon ble Andhra Pradesh High Court had noted that the appellants had sought to avail themselves of the alternative remedy of an appeal. The High Court had directed that appeal might be filed within four weeks, and that pending the appeal the stay order issued on 31-12-1981 should continue. This amounted to a direction by the Hon ble High Court that the delay in filing the appeal to the Tribunal should be condoned. 3. Having considered the arguments on both sides, we ruled that the first two objections of the learned SDR were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants. 6. The order-in-revision of the Government of India, dated 30-10-1979, had vindicated the stand of the appellants. Government had held that the impure carbon dioxide produced as a by-product by Coromandel Fertilizers was not excisable under Item 14H. Government had ruled that they saw no justification for shifting the duty liability from the present appellants to Coromandel Fertilizers. In view of this, the subsequent decision of the Collector, withdrawing the facility under Rule 56B, was not correct, particularly since no show cause notice was issued to them before passing the order. 7. In support of his submissions, Shri Chander Kumar relied on the following cases :- (a) 1986 (26) E.L.T. 252 - Ahmedabad Mfg. Calico Pt. Co. v. Collector of Central Excise, Bombay-1. In this case it was held that the principles of natural justice were violated when a permission granted under Rule 56A was withdrawn without giving an opportunity to the manufacturer; (b) 1986 (26) E.L.T. 227 - Collector of Central Excise, Bombay-II v. Reliance Textiles Pvt. Ltd. In this case it was held (according to the learned advocate) that in the case of semi-finished goods Rule 56B was applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18-6-1977, the main description against this Item read as under :- Compressed, liquefied or solidified gases, the following, namely :- This description was amended through the Finance (No. 2) Act, 1977, to read as follows :- Gases including liquefied or solidified gases, the following, namely:- Under the Provisional Collector of Taxes Act, this change took effect from 18-6-1977. The effect of the change was that while prior to 18-6-1977 only gases which were compressed, liquefied or solidified came within the scope of the Tariff Item, on and after 18-6-1977 all gases (whether or not compressed) were brought within the scope of the Item. The significance of this change, with reference to the present case, will be gone into later. 12. In the present case there are two sequences of orders/correspondence. One sequence is of statutory orders. It starts with the order-in-original dated 18-1-1977 of the Assistant Collector, Visakhapatnam. In this order he held that the carbon dioxide produced by Coromandel Fertilizers, which conformed to the ISI Specification, fell under Item 14H. The question of compression was not raised. On an appeal against this order, the Appellate Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilizers and subsequently (presumably after purification and filling into cylinders) clearing it on payment of duty. This seems to have gone on till 19-12-1981, when the successor Collector passed the impugned order holding Rule 56B to be inapplicable on the ground that the carbon dioxide was being sold by Coromandel Fertilizers to the present appellants, and withdrawing the permission given to Coromandel Fertilizers for removal of carbon dioxide from their factory to the premises of the present appellants. 14. It may be mentioned that the appellants, in their memorandum of appeal, have not stated what exactly is their prayer, or the relief which they are seeking. However, in the light of the fact that the Hon ble Andhra Pradesh High Court had permitted them to continue obtaining the impure carbon dioxide from Coromandel Fertilizers and clearing it on payment of duty after purification and filling into cylinders, it may be taken that what they are seeking is continuance of the facility granted to Coromandel Fertilizers under Rule 56B which enabled them to obtain the impure carbon dioxide from Coromandel Fertilizers without the former having to pay the duty. 15. As already observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer, and for those goods to be removed on payment of duty from the premises of the second manufacturer. There is nothing in the Rule to say that in such a case there should not be a sale of the goods from the first manufacturer to the second manufacturer. Accordingly, assuming that the carbon dioxide sold by Coromandel Fertilizers to the present appellants could be considered as in the nature of semi-finished goods , the benefit of Rule 56B could not legitimately be denied. In this respect, therefore, the Collector s order must be held to be wrong and unsustainable. 16. We now come to the point mentioned earlier, namely the change in the Tariff. In view of the judgment of the Hon ble Supreme Court in the case of South Bihar Sugar Mills, gas which has been compressed to a pressure of 40 to 45 lbs. per square inch in order to drive it through a pipeline cannot be said to be compressed within the meaning of Item 144 as it stood prior to the amendment. [Incidentally, the Tribunal has decided two cases recently on these lines, following the judgment of the Hon ble Supreme Court. These are the cases of International Fertilizers Limited v. C.C.E., Chandigarh [1987 (29) E.L.T. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
