9911796707
TMI Blog1997 (8) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... d January, 1981 to November, 1985 be not recovered. It was alleged that the appellants were removing excisable tyres from their manufacturing shops to the testing laboratory situated inside the factory premises as samples without recording the same in statutory records as well as without paying Central Excise duty leviable thereon under cover of Mill Delivery Tickets (hereinafter referred to as MDT) as transport documents in violation of permissible limits laid down in Notification No. 141/72-C.E., dated 3-6-1972. It was noticed that the appellants had drawn one tyre of one sort under one MDT but several MDTs were issued in a single day in respect of the same sort of tyre. (ii) On adjudication, the demand was confirmed by the Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lined to hold that there was any legislative intent to a different effect...... In view of this judgment, learned DGM submits that the very basis of demand is knocked down and it should be set aside. 2.2 He further submits that in another set of four appeals of the present appellants dealt with by the Tribunal in its Order Nos. 120 to 123/1988-D, dated 12-2-1988 involving the identical issues, the Tribunal held that the department was fully aware of the method of drawing of samples by the appellants of tyres under Notification 141/72-C.E. since around 5-5-1976. Therefore, the show cause notice issued by the Revenue beyond the period of six months pertaining to any period subsequent to 5-5-1976 were held to be barred by time. In this co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in Notification 141/72-C.E. is as follows :- Provided that - (i) not more than one tyre of any one sort is drawn for test at any one time." Expression at any one time in the above proviso was sought to be read as during one day by the Revenue, contending that one tyre for one sort during one day was the ceiling provided by the Notification. Tribunal, however, read the above proviso (i) as one sample per sort at one time (i.e. per MDT/Shipping Order) as contended by the appellant in that case as also in this case before us. We may say with respect that we have serious reservations about the aforesaid manner of reading of the proviso (i) in Tribunal s judgment in the case of Bombay Tyres supra. The word any in Chamber s Twent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular time has been drawn, that entire lot of various sorts would not be available for drawing another sample. A sample can be drawn a second time, after excluding the entire lot of tyres from which the earlier sample(s) has been drawn. That in our opinion would be a logical and practical manner of interpreting proviso (i) and preventing the entire production being drawn as samples. Revenue s contention as well as Tribunal s finding in Bombay Tyres (supra) gives different meanings to the same expression anyone occurring before the words sort and time in proviso (i). We are afraid that this is not permissible nor is there any warrant for the same on plain reading of proviso (i). We, however, do not consider it necessary to refer to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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