9911796707
TMI Blog1990 (8) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... have also filed three Stay Applications. The total duty involved in the above Stay Applications is Rs. 1,85,470.60. Shri A.M. Guha, learned Consultant who has appeared on behalf of the appellant pleaded that the applicant is a small-s.c.ale industrial unit and had applied for provisional registration with the Industries Department and the applicants were duly granted Provisional Registration vide their Provisional Certificate dated 13th July, 1987 which appears as Annexure-A with the Appeal Memo. He further relied on a Trade Notice No. 26/87 dated 28th April, 1987 of Bombay I Collector, in terms of which it was decided that Provisional Registration from the State Government s authorities could be accepted for the purpose of exemption under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso stated that in case the Bench is A inclined to grant stay, an early hearing may be ordered so that the Revenue authorities will be at liberty to proceed further in accordance with law. 4. We have heard both the sides and have gone through the facts and circumstances of the case. The Show-Cause-cum-Demand Notice was issued by the Superintendent of Central Excise and Hon ble Gujarat High Court in the case of Gujarat State Fertilizer Co. Ltd. and another v. Union of India others reported in 1988 (34) E.L.T. 442, held that the Show-cause notice issued by the Superintendent is illegal where proviso to Section 11A of the Central Excises and Salt Act, 1944 is invoked. Para Numbers 3 and 4 from the said judgment are reproduced : Para No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanded exceeds six months, there can be no doubt that the Department proposes to invoke the proviso to sub-section (1) of Section 11A of the Act. As pointed out above, the duty sought to be recovered is for the period from 1st January 1981 to 30th November 1986, that is, for a period exceeding six months from the relevant date. Mrs. Mehta was, therefore, unable to contend that the Department had not invoked the proviso to sub-section (1) of the Section 11A of the Act. That being so, in view of the proviso the words Collector of Central Excise have to be read in sub-section (1) for the words Central Excise Officer . Once we substitute the words Collector of Central Excise for the words Central Excise Officer in sub-section (1) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot by an officer lower in rank than the Collector. In a case where such d show cause notice was issued by the Superintendent of Central Excise, the Hon ble Gujarat High Court in their judgment at 1988 (34) E.L.T. 442 (Guj.) - Gujarat State Fertilizer Co. Ltd. and Another v. Union of India and Others, held that the show cause notice was in contravention of subsection (1) of Section 11-A of the Act and was illegal and quashable. In view of this legal position, the appellants have a prima facie point in their favour on the legal ground. Para No. 2: Accordingly, we allow the Stay Application and order waiver of the condition of pre-deposit as well as stay of recovery of the demand for duty as well as penalty till the disposal of the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
