9911796707
TMI Blog1997 (3) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned lower authority as barred by limitation. The brief facts of the case are that the appellants manufactured HDPE Bags in the factory by use of circular looms at the anterior stage of the manufacture of bags. The fabric in a circular form is manufactured at the circular looms and the same, thereafter was stitched into bags without the use of power as seen from the records. The respondents paid duty in respect of the same until 31-5-1987. However, subsequently, they filed another classification list on 3-6-1987 wherein they claimed the benefit of Notification 65/87 under which the goods manufactured without the aid of power are exempt from payment of duty. This Classification list was approved by the authorities. Subsequently, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved the goods without payment of duty against the direction of the Department, the respondents can be said to have suppressed the facts and that they had been actuated by mala fide in clearing the goods without payment of duty. 3. The grounds stated in the appeal are as under : (a) The Collector has dropped the proceedings. While doing so he has stated that two different proceedings are pending, one before the Tribunal and the other before the Assistant Collector. The reasons advanced by the Collector do not appear to be correct. If the matter was pending before the Tribunal, he should have awaited the outcome instead of dropping the proceedings. (b) Further as could be seen from the Show Cause Notice the same was issued in continuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount due under them has to be recovered under the provisions of Section 11 of the Act, which contain provisions for executing the orders. Section 11A is not the executing section. In fact the assessment orders passed under Section 11A (which are independent of orders passed under Rule 173-I) have also to be executed ultimately under the provisions of Section 11 of the Act . 4. The learned JDR for the Department has pleaded that inasmuch as the question of classification was still pending before the Tribunal and in another proceedings the matter had been remanded to the Original Authority to ascertain the status of the assessments for the purpose of determining whether the goods had been cleared under provisional duty assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout the aid of power. He has referred us to the letter addressed by the Assistant Collector (Technical) of the Hyderabad Collectorate dated 7-4-1987 vide C.No. V/63/30/1/87-MP addressed to All India Flat Tape Manufacturers Association, Secunderabad. The relevant portion of this letter has been reproduced below for convenience : If power is used in the processes like cutting of fabric, stiching or printing on the fabric/sack, whether in the same factory of manufacture of sacks or outside, then exemption under Notification 65/87 will not be available. However, if power is utilised in the manufacture of fabrics required for manufacture of the HDPE Sacks then on account of such use of power the exemption cannot be denied unless power is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are continuous and the actual production of sacks takes place on circular looms. In view of the proviso to Notification No. 223/86 as amended by Notification No. 453/86-C.E., dated 20-11-1986 the assessees are not eligible for any exemption. They cannot also claim for exemption in terms of Notification No. 65/87-C.E, dated 1-3-1987 claiming that stitching or printing are the processes continuous, carried on, without the aid of power. 7. He has, therefore, pleaded the longer period of limitation would not have been invoked against the appellants for whatever reasons. 8. We have considered the pleas made by both the sides. The short point that falls for consideration is whether there was any intention on the part of the respondents to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parently based on this approval granted. There is no averment from the revenue that the appellants had not filed their RT 12 Returns showing the basis of the clearance and it is to be presumed that the RT 12 Returns had been filed by the respondents from time to time. The Department, therefore, in this background can be taken to have been aware all along about the clearance of the goods by the respondents in the exemption notification. 9. As it is, even otherwise the proceedings drawn in the context of Notification 223/86 were within the purview of the authorities and in case the respondents were clearing the goods without payment of duty, the same could not have escaped their notice and their RT 12 Returns would reflect them. Even in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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