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TMI Blog1987 (5) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... of visit by the Central Excise Officers to the appellant's factory on 30.9.82 and detention of 325.580 M.T. of Calcium Carbonate of all varieties found in stock with them. After due investigation, a show cause notice dated 3/4-4-83 was served on the appellants alleging that had:- (a) manufactured the excisable goods viz. precipitated Calcium Carbonate (Coated) known by them as ACC 03 falling under T.I.68 of Central Excise Tariff without obtaining a Central Excise Licence in form L 4 from 21.6.78 onwards as required under Section 6 of Central Excises and Salt Act, 1944 read with Rule 174 of Central Excise Rules, 1944. (b) removed the excisable goods without determining the Central Excise duty due on the said goods prior to their removal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.1.1984 was served by the Superintendent Central Excise Range IV Palghar demanding duty of Rs. 4545.73 on the quantity of 36879 Kgs. of coated chalk removed during the period 3.6.78 to 31.3.79. The appellants filed reply to the show cause notice denying the allegations. After personal hearing the Collector of Central Excise, Bombay-II held against the appellants and ordered as follows:- "Confiscation of 263.250 M.T. of activated calcium carbonate. As the appellants failed to produce this quantity in terms of the bond executed by them, he appropriated a sum of Rs. 50,000/- from the bank guarantee furnished by the appellant. He also ordered payment of Rs, 50,000/- as fine in lieu of confiscation of the above said quantity. He further orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized goods 263.250 M.T. seized from the factory are dutiable and Central Excise duty at appropriate rate has to be paid on the same at the time of removal of goods if not paid already at the time of provisional release." 4. Being aggrieved with this order the appellants filed this appeal to the Tribunal. It also appears that the prosecution has been launched against the appellants and on the request of the appellants and considering the hardship involved an early out of turn of hearing was granted to the appellants. 5. At the hearing of the appeal today Shri Ashok Grover, Advocate has appeared for the appellants and Smt. J.K. Chandar, JDR for the respondent. We have heard them and gone through the paper book. The main contention of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g benefit of exemption under the notification, no distinction can be made between coated and uncoated chalk (precipitated activated calcium carbonate). She however, maintained that under the Notification Sr.No.1 minerals, employed either as extenders, suspending agents or fillers or as diluents were eligible to benefit of exemption under Notification. In this case there was no material or proof that the appellants manufacture (precipitated activated calcium carbonated) i.e. coated chalk were put to these uses, andappellants canget benefit of the exemption under the notification only when they were able to satisfy that the product manufactured was put to use for these purposes. She submitted that this argument she was advancing because there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as to use as extenders, suspending agents or fillers or as diluents. Collector of Central Excise had no occasion to go into this aspect of the matter because he straightaway held that coated chalk cannot be eligible for benefit of exemption under the Notification. In our view straightaway denial may not be justifiable. The appellants in order to be eligible for exemption under the notification have to satisfy the lower authorities that their product (coated chalk) is used for the purpose satisfied in the notification i.e. minerals employed either as extenders, suspending agents or fillers or as diluents. On their so satisfying the lower authority i.e. Collector of Central Excise, they shall be granted the benefit of exemption under the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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