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TMI Blog1989 (10) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... e as packing container from solid fibre board and composite board charged at appropriate duty manufactured in our factory only without any printing falling under Item 17(4) and claimed exemption from Central Excise duty under Notification No. 66/82-CE, dated 28-2-1982. On 29-7-1983 a show cause notice was issued to the appellants demanding duty of Rs. 66,328.00 for the period March, 1982 to December, 1982 on the ground that the appellants product was not eligible to the exemption from duty under the aforesaid notification as the said product was printed boxes. Thereafter on different dates during the period from Octorer, 1983 to December, 1984, nine more show cause notices were issued to the appellants demanding duty under Section 11-A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Collector of Central Excise relied on a test report dated 1-11-1985 vide internal page 3 of his order-in-original dated 22-3-1985, a copy of which is at page 20 of the paper-book filed by the appellants. This test report was obtained after issue of the show cause notices. Copy of the test report was not supplied to the appellants. This has resulted in denial of principle of natural justice. (ii) Trade opinions in the form of letters from four companies were filed before the Collector (Appeals) to show that the disputed product is not printed box. These trade opinions have been mentioned at page 4 of the impugned order-in-appeal (page 13 of the paper-book), but the Collector (Appeals) has not given any finding as to why the trade opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since no show cause notice was issued for modifying the approved classification list, the demand for duty issued under Section 11A of the Act with retrospective effect is void ab initio. On this point reliance has been placed on the Supreme Court judgment reported in 1988 (35) E.L.T. 349 (S.C.) in the case of Union of India and Others v. Madhumilan Syntex Pvt. Ltd. (decided on 3-5-1988), in which it was held that if the approved classification list had been modified by the Assistant Collector without any opportunity and the show cause notice was given only with regard to quantification of the amount of the short-levy, such a show cause notice could not be regarded as for modification of classification list and hence it was not covered unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore us. In the case of Elson Machines Pvt. Ltd. (supra) (decided on 15-11-1988), the Hon ble Supreme Court in paragraph-8 of the judgment held as follows :- The next submission on behalf of the appellant is that the Classification Lists had been approved earlier and the Excise authority was estopped from taking a different view. Plainly there can be no estoppel against the law. The claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected." In the said case the classification list was approved by the Department. The question arose whether the Central Excise authorities could take a view different from that in the approved classification list. In that context the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication list was approved allowing the exemption notification. In view of this legal position, we reject the contention of the learned advocate that the demands for duty could not be legally raised even for a period of six months under Section 11-A of the Act ibid. 5. We, however, observe that the Assistant Collector relied on a report of the Deputy Chief Chemist, but the copy of the report was not furnished to the appellants. This has violated the principle of natural justice. Further, the appellants submitted trade opinions from four company s before the Collector (Appeals). Although Collector (Appeals) has mentioned about these trade opinions, but he has not given any findings as to why he has not accepted these opinions. He has not di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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