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TMI Blog1995 (10) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... for Rs. 44,569.25 and penalty of Rs. 10,000/ on the appellant M/s. Hirdhan Texturising Industries, whereas Appeal E/283/91 is against Order-in-Original No. 16/MP/Addl. Collr./l991, dated 18-2-1991 confirming demand for Rs. 28,815.34 and imposing penalty of Rs. 10,000/ on appellant M/s. Shree Ambica Texturising Industries. 3. On 10-4-1982, a surprise visit was paid by the Central Excise Officers to the factory premises of both the appellants, they came across some chits showing details of manufacture of crimped yarn. On due scrutiny appellant M/s. Hirdhan were found to have manufactured 613.040 kgs and M/s. Shree Ambica to have manufactured 405.850 kg and to have removed the same without payment of appropriate excise duty. Show Cause Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excises and Salt Act, 1944, the jurisdictional Collector is the proper authority to adjudicate such cases including cases pending on 27-11-1985. I, therefore, set aside the impugned order and direct the Deputy Collector to send all the case records to his Collector for such action as may be deemed fit by him under Central Excise Law. The appeal is disposed of accordingly. Neither side preferred any appeal before the Tribunal against the said orders. The papers were accordingly placed before the Collector, who assigned them to the Additional Collector and the said authority, issued the notice for personal hearing on the show cause notices issued on 7-3-1983. Amongst others, contention was raised that with the orders as passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pleaded that the Additional Collector is also the Collector for the purpose of adjudication. 6. For the purpose of appreciation of the submissions made, certain facts require to be specifically identified. Section 11A of the Act, which is incorporated in the Act with effect from 17-11-1980, and as it stood prior to its amendment with effect from 27-12-1985, permitted issuance of Show Cause cum Demand Notice, as also adjudication thereon, by Central Excise Officer , irrespective of whether the demand was restricted to the period of six months, or was extended upto five years. By the amendment as brought out vide the Central Excises and Salt (Amendment) Act, 1985, for the purpose of raising demand on allegation of fraud, suppression, mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed the orders dated 13-3-1989 the operative portion of which is duly reproduced hereinabove. 7. Significantly the orders dated 13-3-1989, nowhere states that the show cause notices dated 7-3-1983 is void. At no stage of the proceedings the demand raised under those notices have been dropped. The notices, when they were issued were legal and valid and issued by the competent authority. 8. The only interpretation that can be given to the orders dated 13-3-1989, of the Collector (Appeals), and which also flows from the said orders though not in the specific terms as is now being identified, is that on remand of the matters by the Collector (Appeals) vide his order dated 11-3-1986,the Deputy Collector ought not to have conducted de novo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, in the case reported in 1992 (61) E.L.T. 440 (Bom.) as also the Tribunal, amongst several others, have in 1991 (55) E.L.T. 45 (T) held that the Additional Collector would be the Collector for the purpose of adjudication under Section 11A of the Act, and is thus empowered to adjudicate. The contention raised as to the authority of the Additional Collector to adjudicate also cannot be sustained. 12. On merits, it is contended that vide Ministry of Finance, Department of Revenue Notification No. 55/78, dated 1-3-1978, crimped yarn which is textured yarn were exempt from duty except to the extent of Rs. 5/ over and above the duty paid on base yarn. It is submitted that the demand raised includes the duty on base yarn. The contention is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst removal of goods without payment of duty, presumption would be that the goods that have gone to the market are duty paid. Similar view has been expressed by the Tribunal in the aforementioned decision, where it is also mentioned that the non-duty paid nature has to be established by the Department. Though distinction is sought to be made, as regards the Tribunal decisions, by the adjudicating authority, the view expressed by the Bombay High Court, in Re : M/s. Vapsan Products (supra) is not related to any specific notification, and the ratio thereof cannot be overlooked. There is no proof that the base yarn in question had not suffered duty, and when open market purchase has been pleaded and details have been furnished, it is not cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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