9911796707
TMI Blog1995 (9) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... period 1989-90 and 1990-91 under the provisions of Section 11A(1) proviso of the Central Excises and Salt Act, 1944. They have been imposed penalty of Rs. 25,000/ under Rule 173Q. 2. The facts of the case are that the appellants were clearing the said goods manufactured by them without payment of duty thereon. The officers of Central Excise (Preventive) visited the factory premises on 25-2-1991 and found them manufacturing and clearing the said goods under the said sub-heading after availing of the benefit of Notification No. 175/86-C.E., dated 1-3-1986 as amended. The statement of the partner of the firm was recorded and the statutory records were scrutinised by the Officers which revealed that the provisional SSI registration certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Notification during the financial year 1989-90, on the strength of a provisional SSI certificate which was valid upto 7-11-1986. Hence, they had pleaded that they were fully eligible for exemption under the said Notification. They had stated that the Notification provides for exemption, if the manufacturer had been availing of the benefit of the Notification during the preceding financial year. They had availed of the benefit during the year 1989-90 against the provisional registration certificate. Therefore, they were also eligible for exemption during the year 1990-91. 4. The Learned Collector rejected their submissions and confirmed the duty. The Learned Collector has held that the provisional certificate had become invalid on 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they would be entitled for the benefit without registration. He submitted that the department had initiated proceedings by issue of show cause notice dated 31-5-1991 invoking the proviso to Section 11A for the period 1-3-1991 to 30-4-1991 on the allegation of wrong availment of exemption under Notification No. 175/86, dated 1-3-1986 as amended and the same had been adjudicated also by order-in-original No. 270/91, dated 3-3-1991. The Assistant Collector noting the clearances for the year 1989-90 being less than Rs. 7.5 lakhs and also noting that the same was below the limit, had held that for the subsequent year 1990-91 also, they were entitled for the benefit. Therefore, the Assistant Collector had dropped the proceedings. He further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing judgments : 1. Accura Industries v. Collector of Central Excise, [1992 (58) E.L.T. 98 (Tri.) = 1993 (46) ECR 29] 2. Prabhu Soap Works v. Collector of Central Excise, [1992 (19) ETR 814] 3. Industrial Tapes and Fabrics Pvt. Ltd. v. Collector of Central Excise, [1990 (49) E.L.T. 564] 7. The Learned Counsel also relied on the Board s instruction in Trade Notice No. 26/87, dated 28-4-1987 as reported in 1987 (11) ECR 83C. 8. The Learned DR reiterated the findings of the learned Collector. 9. We have carefully considered the submissions made by the appellants and on verification of records, the submissions are totally correct. We have perused the order-in-original No. 270/91 passed by the Assistant Collector dropping the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment namely, the Chairman of the Board of Central Excise, so as to enable the Chairman to take some remedial action to avoid such type of harassment to the assessee in a circumstance like this, wherein the department initiates a third proceeding when in fact, two earlier proceedings had been dropped. The Collector has failed to look into this aspect despite this fact being brought to his notice both in the reply to the show cause notice as well as during the personal hearing, instead he has gone on to confirm the demands, which are totally unsustain- able. As the matter has already been adjudicated earlier and the department has dropped the proceedings twice, the question of sustaining this order does not arise. Therefore, the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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