9911796707
TMI Blog1988 (7) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... on grey fabrics was deleted. However, the facility of taking proforma credit of duly, iritenns ot Rule 56A of Central Excises and Salt Act was available to, the appellants. The appellants, however, continued to avail of the facility of set-off of duty as was provide for the in Notification 226/77 , before amendment, even after the facility was withdrawn by the amending notification. When they were called to question for doing so by the authorities they applied to the Collector for permission to avail of the proforma credit facility with retrospective effect for the period December, 80 to May, 81, the periods after the issue of. amending notification and during which the appellants availed of the set-off of duty paid or] the Grey Fabrics processed by. them. In the meantime, the show cause notices were issued demanding duty for the periods December, 80 to May; 81 equal to the set-off of duty availed of by the appellants. The proceeding? before the Collector for permission to avail of the proforma credit facility under Rule 56A of the Central Excise Rules and for the demand of duty before the Assistant Collector were drawn separately and; dealt with independently. The Assistant Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be, specified in column (2) of the Table hereto annexed shall be further amended, in the manner specified in the corresponding entry in column (3) of the said Table. S.No. Notification No. and date Amendment ^(2)P) (1) (2) (3) 1. 136/77-Central Excises, dated the 18th June, In the said notification, in the first proviso, clause (iii) shall be omitted. ,1977 2. 226/77-Central Excises, dated the 15th July, 1977 In the said notification, in the first proviso, clause (vi) shall be omitted. 3. The issue that falls for consideration is whether the appellants could be allowed the benefit of proforma credit in terms of the amended Notification 226/77 and whether demands raised in that context are maintainable in law. The Collector (Appeals) in his order, after taking Into consideration the pleas of the appellants on various courts has held as under: The appellant has contended that the Asstt. Collector could not review his own order of approval of the classification list by issuing show cause notice for recovery of duty under Section T1 A. Learned Consultant for the appellant relied upon a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification list. He pleaded that the Assistant Collector could not review his own order and only Section 35A (2) or 85B alone could have been involved5br revising the classification. He pleaded that this was not done and inasmuch as, no review of the classification list approved was done in law, no demand could be raised. In support of this, he cited the case of Mahindra Re-Rolls Industries and Another v. Union of India and Others 1,988 (33) ELT 684 (Bom.) and Zaun Agro Chemicals Limited v. Collector of Customs, Bombay 1986 (25) ELT 783 (Tribunal). He pleaded that in the case of Mahindra Re-Rolls cited the Hon ble High Court of Bombay had held the power for revising the rate of duty by Invoking Rule 173B sub-rule (5) of the Central Excise could not be exercised by the Assistant Collector and the Tribunal in other case cited in para 19 of their order held as under: The above observations of the Supreme Court apply to the facts of the present case. Rightly or wrongly the Asstt. Collector 6y his -order dated 28.10.76 permitted the appellants to avail of proforma credit for the entire quantity of Muriate of Potash received by them upto 17.4.76 and utilised in the manufacture of fer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cited the case of Hon ble Supreme Court in the case of Empire industries 1985 (20) ELT 179 (para 47 to 49). 8. The learned representative for the department Shri Chakraborthy pleaded that levy on the processed fabrics should not be considered as double taxation as the duty charged was not on the same goods. He pleaded that the grey-fabrics and processed fabrics were two different categories of fabrics and were recognised so In the trade. In support of this, he cited the following cases. : - 1988(34).ELT.347 CEAKAY Rubber Industries, Changanacherry, Kerala v. Collector of Central Excise, Madras - 1988(34),E.L.T. 590 (Cal.) Brooke Bond India Ltd. Another v. Union of India and Others. - 1988 (35) H-T 237 West Coast Paper Mills Ltd. v. Collector of Central excise, Bangalore. 9. Regarding the plea of the appellants that the Assistant Collector could not review his own order of approval of the classification list, he pleaded that the question for consideration to the recovery of short-levy under Section 11 A of the Central Excises and Salt Act and that demand under this Section can be raised for a period of six months in case the duty was found short-levied. In support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open for orders before us any more. The appellants, therefore, have to seek relief if they so desire in the appropriate forum by way of reference too the High Court under the law or otherwise: We have not been informed by the learned advocate that these orders of Tribunal have been interfered with by any higher court. 17. We, therefore, hold that the benefit of Rule 56A in view of the order passed by the Tribunal is not available to the appellant. 18. The only question that survives for consideration is whether the Assistant Collector could have raised the demand after he had approved the classification list. 19. We observe that the Collector (Appeals) has given cogent reasons in his order In this regard as reproduced in the earlier paras. We also observe that in a situation like this, in a recent judgment of the Supreme Court in their order in the case of Nat Steel Equipment Pvt. Ltd. v. Collector of Central Excise 1988 (34) ELT 8 (SC) have held as under: In view of the fact that the Tribunal recognised that the appellant had set out all the details in the classification list and the revenue had assessed him under Tariff Keen: 68, the Tribunal camp to the conekisioit tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
