9911796707
TMI Blog1987 (11) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... taple fibre and polyester staple fibre and convert the same into cellulosic spun yarn falling under Item 18III Central Excise Tariff. On receipt of Trade Notice No. 157/81 Central Excise, dated 26-9-1981 issued by the Collector of Central Excise, Indore, they applied under letter, dated 16-4-1982 for grant of set-off in terms of the said notification. Under letter, dated 26-4-1982, they were informed that the Assistant Collector had permitted them to avail set-off as claimed by them. Subsequently they received 5 notices under which they were informed that they had failed to mention the particular notification under which set-off was permissible in their case and that there appeared to be no notification issued by the Government permitting s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation No. and date granting set-off was not known and that the application was being made on the basis of the reference to cellulosic spun yarn in Trade Notice No. 157/81. It is, therefore, clear that the appellants had not specifically referred to any particular notification under which set-off was permissible with reference to that product and that even so the Assistant Collector had permitted set-off under his order, dated 26-4-1982. It is for this reason that the appellants contend that it was not open to the Assistant Collector to specifically review the said order and withdraw the permission granted in the absence of any supervening circumstances requiring such a review of the earlier order. The Collector (Appeals) has stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of an error or omission, or mis-construction on the part of the officer. The proviso to the said rule does not apply to the facts of the present case as no case of wilful misstatement, collusion or suppression of facts could be alleged against the appellants either in obtaining the order for availing the set-off or specifically availing the set-off. 6. The case for the Department, as put forward by Shri Balbir Singh, is that the grant of permission by the Assistant Collector under his order, dated 26-4-1982 was due to an error on his part and hence the provisions of sub-rule 5 are properly attracted. As earlier mentioned, it is not in dispute that the procedure for set-off under Rule 56A was not applicable to the cellulosic spun yarn fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is no doubt true that set-off had been taken in pursuance of an order passed by the Assistant Collector. But the error had been discovered soon thereafter and notice had been issued on 15-9-1982 within 5 months of the grant of the earlier permission. It has already been seen that the grant of permission was an obvious error. In the circumstances we hold that under sub-rule 5 of the Rule 56A the Assistant Collector was entitled to demand repayment of credit already taken within the time limit specified in the said sub-rule. In the present case it may be seen that the first notice was issued on 15-9-1982. Therefore, in any event the availing of set-off subsequent to that date (as covered by the Notices 4 and 5 and partly by Notice 3) canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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