9911796707
TMI Blog1989 (5) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... wn and later on supplied to the appellants in the original packing. When the inputs were received in the appellants factory, D-3 declarations were regularly filed along with the photocopies of the original gate passes under which the goods have been removed from the manufacturer to M/s. Hochest along with the delivery challans from the godown. The goods in original packing were verified with the particulars of the photocopies of the invoices as well as the delivery challans and thereafter the credits were allowed by the proper officer. Subsequently, a show cause notice was issued demanding duty in respect of the credit taken in respect of the inputs received in the aforesaid manner on the ground that the appellants had not produced either subsidiary gate passes as required under the provisions of Rule 56A(3)(i)(b) read with Trade Notice No. 201/70 dated 1/7/70. However, the said show cause notice was discharged by the Asstt. Collector after a process of adjudication. However, the said order of the Asstt. Collector discharging the appellants from the show cause notice was reviewed by the Collector in exercise of the powers conferred on him under Sec. 35A of the Central Excises Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that non-compliance with the procedural technicality should not result in denial of credit: 1981 ECR 643D(CBEC); 1981 ECR 567D(CBEC); 1982E.L.T.547(G.O.L); 1989(40) E.L.T. 202 (Tribunal); and 1986(9) ECR 616 (Cegat SRB) 4. Shri Mehta contended that the power of review under Sec. 35A of the Central Excises Salt Act is to be used in the extra ordinary circumstances and not in such cases. He also contended that as per sub-sec. 3 (b) of Sec. 35EA of the aforesaid Act, no order levying or enhancing the duty shall be made unless the person affected by proposed order is given notice to show cause against it, within the time limit specified under Sec. 11A. In this case, notice under, Sec. 35EA of the Central Excises Salt Act has been given after a period of six months and hence any order passed on the basis of such notice is not legally sustainable. 5. Heard Shri Arya. He contended that admittedly in this case, the requirement of Rule 56A 3(i)(b) has not been complied with. Input materials have been brought into the factory and they produced the photo copies of the gate passes, which are not acceptable documents and they have been not approved by the Central Excise Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e correctness, legality or propriety of such a decision, as he thinks fit. This Section does not envisage that the power of review is confined to only an extraordinary situation. What is required for the Collector is to satisfy himself as to the correctness, legality or propriety of such decision. If he is not satisfied, he may have recourse to proceedings under Sec. 35-A. 9. As regards the issue of notice within the time limit laid down in Sec. 11A, we observe that in this case as rightly pointed out by Shri Arya, the notice was already issued by the Supdt. demanding a specified amount of duty in respect of the duty credit taken on input materials alleged to have been irregularly taken. When the notice has been discharged by the Asstt. Collector, the Collector on perusal of the records, felt it necessary to initiate proceedings under Sec. 35-A. For this purpose he has to issue notice within the time limit of one year prescribed under sub-sec. (1) of Sec. 35-A, which has been done. In conclusion of the proceedings so initiated if the Collector finds that the order of discharge is to be set aside, automatically original notice issued by the Supdt. demanding duty gets revived and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ro-rata duty credit eligible has been worked out. It is also reported that sincere efforts were made to get the subsidiary gate passes, which did not yield tangible results because of the fact that the goods had already come to the appellants factory and got consumed and not available for verification before issue of the subsidiary gate passes. In the circumstances, denial of credit merely on the ground that subsidiary gate passes have not been produced would only amount to double taxation, which the Government s policy wanted to avert in the case of plastic goods by extension of Rule 56-A. It is also pertinent to note that under sub-rule 3(i)(b) of Rule 56-A another important requirement is that the input materials should be brought in the original packing. This requirement is stated to have been complied with. If it was not so, verification would not have been possible. When the goods have been received in the original packing which can be co-related to the gate passes under which they were removed, we are of the view that mere non-production of subsidiary gate passes would only be construed as a technical breach. In this context we also take particular note of the citation made ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
