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TMI Blog1996 (9) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... f these show cause notices because the ground is completely different. However, this show cause notice is more or less a repetition of the earlier two show cause notices, except there is some discrepancy in the period of demand. I find that the appellant's contention that this show cause notice issued under Section 11A is time barred is quite correct. This notice was issued on 28-3-1984 and the period of demand covered in this show cause notice is 28-7-1977 to 15-8-1978. Even from the last date, i.e. 15-8-1978, the show cause notice is issued beyond a period of five years and therefore, this show cause notice is not a valid show cause notice under Section 11A under which it has been issued and no demand can be sustained on the basis of this notice. Therefore, this notice can be straightaway ignored. 7. Coming to the other notices, the first show cause notice is in time as it was issued on 25-10-1977 covering the period July and August, 1977. The other show cause notice is partly time barred. However, that is of no consequence because the impugned order is not in pursuance of the ground on which the appellants were asked to show cause in these two show cause notices. In these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igible for benefit under Notification No. 35/76 from the date of commencing availment of benefit by the company that is 28-7-1977 till 15-8-1978 upto which date the Notification No. 35/76 was in force. The Assistant Collector also held that the respondents herein are not eligible for concessional rates of duty in respect of clearance of levy sugar from their factory under Notification No. 223/76, 226/76, 279/76, 251/76 and 317/77 for the period from 28-7-1977 to 15-8-1978 because during the period, the respondents herein were availing the benefit under Notification No. 35/76. The Assistant Collector also held that the respondents herein are liable to pay a total duty of Rs. 17,92,849.72 being the differential duty between the duty payable and paid on the sugar cleared by them at the rate prescribed in Notification No. 35/76. 3. Against this order of the Assistant Collector, the respondents herein filed an appeal with the Collector (Appeals) who held as indicated above. 4. Against this order of the Collector (Appeals), the department has filed the present appeal. 5. Shri A.K. Madan, the learned SDR appearing for the appellant submitted that show cause notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise; that fresh show cause notice was issued by A.C. on 28-3-1984; that in this notice, the demand was proposed on the following counts : (a) benefit of Notification Nos. 223/76, 226/76, 251/76, 317/77 is not available and (b) benefit of Notification No. 35/76 is not available inasmuch as the benefit of Notifications 223/76, 226/76, 251/76 and 317/77 were availed which was a successor of Notification No. 210/73. The ld. Counsel submitted that the point (a) was raised for the first time in the show cause notice issued on 28-3-1984; that the respondents herein specifically pointed out that the proposal in this notice to deny the benefit of Notification Nos. 223/76, 226/76, 251/76 and 317/77 was not taken in the show cause notices issued by the Superintendent on 25-10-1977 and 12-3-1979; that since the proposal to deny these notifications has been raised for the first time in the show cause notice dated 28-3-1984 which is beyond five years, the demand was time barred; that the Assistant Collector adjudicated the three show cause notices holding that benefit of Notification No. 35/76 is available till 15-8-1978; that benefit of Notification Nos. 223, 226, 279, 251 (all of 1976) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... superseded by Notification No. 251/76, dated 14-9-1976. 8. We observe that in Notification No. 35/76, dated 25-2-1976, there was a proviso reading as "Provided that nothing contained in the Notification of the Govt. of India in the Ministry of Finance, Deptt. of Revenue and Insurance No. 210 of 1973 C.E., dated 15-12-1973 shall apply to a sugar factory covered by this Notification." This proviso assumes importance inasmuch as Notification No. 210/73 has been superseded by subsequent notifications for different periods. The point agitated before us was that since Notification No. 210/73 was superseded by subsequent notifications and no corresponding change was effected in the proviso to Notification No. 35/76, therefore, the subsequent Notification Nos. 223/76, 226/76 and 251/76 shall have to be interpreted independent of Notification No. 35/76. The ld. Counsel for the appellants submitted that since the superseding notifications were not incorporated by an amendment in the proviso to Notification No. 35/76, therefore, they cannot be incorporated and read as proviso to Notification 35/76, after 3-8-1976. We find that the proviso to Notification No. 35/76, dated 25-2-1976 was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot arise after 3-8-1976. 10. The second show cause notice was issued on 12-3-1979. We find that the proviso to Notification No. 35/76 states that the provisions of Notification No. 210/73 shall not apply to a sugar factory covered by Notification No. 35/76. Though the subsequent notifications are in the nature of superseding notifications since the proviso to Notification No. 35/76 mentions only Notification No. 210/73 its scope cannot be extended to successor Notifications. 11. The second issue that arose for determination in this case was that the respondents herein contended that the demand was hit by limitation. We find that in this case, the show cause notice was issued on 12-3-1979 for the demand pertaining to the period 1-10-1977 to 30-6-1978. Thus the demand was beyond a period of six months. The question is whether the invokation of a longer period is justified in the instant case or not. The department cited a decision of this Tribunal in the case of Malt Co. India (P) Ltd. reported in 1986 (26) E.L.T. 627 in which the Tribunal held that there is overwhelming authority supporting the contention that the assessment in RT 12 returns are appealable. As against th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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