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TMI Blog1988 (6) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... thout observance of Central Excise formalities and they were, therefore, to show cause why duty thereon should not be demanded and penalty also imposed. Under their reply thereto dated 14.1.1983 they deposited the duty demanded (Rs. 18,73,669.47 paise) immediately but sought for a personal hearing so that they may make their submissions, in reply to the notice. After affording a personal hearing the Collector under his order dated 29.7.1983 confirmed the duty demand and further imposed a penalty of Rs. 10,000/-. This appeal is against the said order. 2: We have heard Shri P.D. Jain and Shri J.D- Jain, Advocates for the appellants and Shri L.C. Chakraborty for the Department. - 3. Under miscellaneous application 12/88 the appellants have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issued by the Collector only and, therefore, the notice should ex-facie show that the Collector had applied his mind and ordered issue of notice. In addition Shri Chakraborty points out that this particular ground had not been raised before the Collector nor taken in the grounds of appeal as originally drafted or even under the amendment sought for. For all these reasons we hold that the validity of the show cause notice cannot be questioned on the ground now urged. 5. Shri Jain then urged that duly paid goods were obtained by the appellants and they were lubricated (to use his words) into a transformer and thus there was no manufacture involved in order to attract duty liability and that demand of duty on such transformers would amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate and, therefore, the benefit would be available.. In this connection he relies on the decisions in (i) Rajasthan State Electricity Board v. Mohanlal (AIR 1967 SC 1857); (ii) Ramana Dayaram Shetty v. International Airport Authority of India (AIR 1979 SC 1628); (iii) Surya Narain Yadav v. Bihar State Electricity Board (AIR 1985 SC 941). These cases dealt with situations arising with reference to the provisions of Part III of the Constitution of India or Part IV of the Constitution of India (dealing with fundamental rights and directive principles of State). It was in that connection that the Supreme Court took note of the fact that under Article 12 it had been laid down that in that part (Part III), unless the context otherwise requires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unnecessary to quote) that unless the necessary averments are made in the show cause notice on the fulfilment of which alone the Department would be entitled to invoke the larger period of limitation, the order following the notice cannot press into service the larger period of limitation 8. Even in the impugned order no specific finding is recorded as to the availability of the larger period of limitation except stating that no licence had been obtained for manufacture and removal of these transformers. Shri Jain submits that the appellants were bona fide under the impression that the transformers manufactured by them were not excisable products and that is why no licence had been obtained. He points out that no sooner than the notice w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of service is not known from the records and hence he is unable to make any submissions as to the date from which the earlier six months (for demand of duty) could be computed. We have taken note of this fact. 10. A claim had been made before the lower authorities for benefit under Notification 118/75 Arguments were advanced before us also on that issue. But we note that benefit under that notification would be available only if the goods (falling under Item 68) manufactured in a factory are intended for use in the same factory or in any other factory of the same manufacturer. It cannot be disputed that the transformers (1602 in number) were not, and could not have been, used in the same factory in which they were manufactured or in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Collector when he observed but no such issue is involved in this case meant that the issue of benefit under Notification No. 201/79 was not necessary to be considered since the procedural requirement of the notification such as filing of declaration, intimating the arrival of duty paid goods, etc. had not been observed by the appellants. Shri Chakraborty raises these objections in respect of this claim. In this connection we take note of the fact that the Department relied entirely on the records of the appellants only in respect of the items used for the manufacture of transformers and the value thereof. In the circumstances it appears to us that it would not be proper to deny the benefit under Notification No. 201/79, if other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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