9911796707
TMI Blog1998 (7) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant SRF Ltd. and ld. S.D.R. Shri Victor Thiagaraj for the department. 3. Briefly the facts are that M/s. SRF Ltd. were approached by another party M/s. Apollo Tyres at Trichur in Kerala State and agreed to supply Tyrecord fabrics under the provisions of Rule 191BB, which was required by M/s. Apollo Tyres for manufacture of tyres to be exported. M/s. Apollo Tyres were holders of Advance Licence under the DEC scheme for import of yarn for this purpose. They applied for permission to their jurisdictional Assistant Collector of Central Excise at Trichur to receive yarn without payment of duty from M/s. MRF Ltd. under Rule 191BB read with Notification No. 33/90-C.E. (NT), dated 5-9-1990. The said Assistant Collector vide his certificate dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pollo Tyres Ltd., Trichur subject to all the conditions under Rule 191BB. 5. Removals continued accordingly and they were not of yarn but of fabrics under the specified conditions, on job work basis. This removals being non duty paid were under AR 3 and GP 1 and these removals were under physical control being counter signed by the Inspector of Central Excise concerned. 6. However, vide letter dated 6-1-1992 of the Assistant Commissioner, Trichur, M/s. Apollo Tyres were informed that the said permission granted was withdrawn with immediate effect and that they may apply to the Collector of Central Excise, Cochin for permission in this regard. Copy was also endorsed to the present appellant. By this time most of the consignments had alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have been necessary to clear the fabrics without payment of duty; it was not obtained by the appellants. 9. The present appellant went in appeal to the Commissioner (Appeals) who vide his Order-in-Appeal No. 211/95 (M), dated 25-10-1995 set aside the demand in the order-in-original for Rs. 60,15,625/- on Nylon yarn but confirmed the duty demand of Rs. 10,50,000/- on the fabrics cleared by the appellants. This was on the ground that the said yarn was removed for captive consumption under Rule 9 read with Rule 49 in compliance with the provisions of 191BB and therefore, this removal was not tainted. While coming to this conclusion he considered the wordings of the Advance Intermediate Licence held by M/s. Apollo Tyres (who were not a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the appellants. Thirdly, he argued that all the principles of Chapter 10 of Central Excise rules would also be applicable to Rules 191BB and in that respect cited the case of M/s. Siemens Ltd. v. C.C.E. as reported in 1994 (70) E.L.T. 305 (T) and C.C.E. v. Ferro Alloys Corporation Ltd. as reported in 1994 (71) E.L.T. 931. He further submitted that plea of fabrics not covered and A.C. having no authority to grant permission under Rule 191BB were technical, as the clearances were made after obtaining the relevant permission from both the Assistant Collectors. Finally he said that the Rule 191BB itself was framed for export promotion measures and nowhere it has been alleged that the entire quantity cleared to M/s. Apollo Tyres was not use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded beyond the scope of show cause notice, we find that this argument carries a lot of weight. Since Rule 191BB is not even mentioned in the show cause notice or in any annexure thereto, let alone there be any allegation of violation of that Rule, therefore there is no grounds set out in the said show cause notice for demanding the duty. As against this, in the order-in-original, the Assistant Collector has based his findings and decisions on the grounds already enumerated above, each one of which cover the provisions of Rule 191BB. We are, therefore clearly led to conclude that the order-in-original goes beyond the scope of the show cause notice and on this ground alone there has been a miscarriage of the principles of natural justice and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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