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TMI Blog1998 (3) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the submissions made by both the sides and have gone through the facts on record. 4. The appellants were engaged in the manufacture of patent or proprietary medicines and had a central excise licence for the manufacture of such medicines. In the year 1983 they proposed to start manufacturing of a new product called `Prosup . On 26-7-1983, they wrote to the Superintendent of Central Excise that they intended to manufacture a food product named Prosup . They informed that as per their presumption it was classifiable under Item No. 1-B of the Tariff (as then in force) and exempted from payment of Central Excise Duty by virtue of its non-inclusion in the Schedule given in the Notification No. 17/70-C.E., dated 1-3-1970. Certain information was called for by the Superintendent of Central Excise under his communication dated 4-8-1983 and the information called for was supplied on 23-8-1983 by the assessee. A classification list was filed on 6-10-1983 in which the product was classified by the assessee under Item No. 1-B of the Tariff and the exemption was claimed under Notification No. 17/70-C.E., dated 1-3-1970. The classification was approved subject to the Deputy Chief Chemist s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise (Appeals), Bombay, on appeal observed that the show cause-cum-demand notice dated 4-3-1986 was issued by the Asstt. Collector of Central Excise for the period 1-7-1985 to 31-12-1985, partly beyond six month and that in view of the amendment to the Section 11A of the Act, the Assistant Collector of Central Excise had no jurisdiction to confirm the demands for the period beyond six months and that the order passed by the Asstt. Collector of Central Excise was bad in law. He held that the show cause notice for extended period had to be issued by the Collector of Central Excise. The order passed by the Assistant Collector of Central Excise was set aside and the Assistant Collector of Central Excise was directed to send the case records to the Collector of Central Excise for such action as may be deemed fit. The operative part of his order is extracted below : 3. The show cause-cum-demand Notice dated 4-3-1986 issued by the Asstt. Collr., Aurangabad pertains to the period 1-7-1985 to 31-12-1985 i.e. beyond six months. In view of the amendment to Section 11A of Central Excise and Salt Act, 1944 the Asstt. Collr. Central Excise has no justification to confirm demands beyond six mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sup or may pass such order as is deemed appropriate for deciding the classification. 7. The matter was, however, taken up for adjudication by the Addl. Collector of Central Excise, Aurangabad. He observed that as there was no suppression of facts or mis-statement on the part of the assessee the duty on the goods cleared during a period of six month from the date of show cause notice was recoverable. As regards the classification, he observed that the classification of the goods already stood decided under Item No. 68 of the Tariff by the Assistant Collector of Central Excise, Aurangabad, and that the assessee themselves had submitted the classification list classifying the subject product under Item No. 68 of the Tariff. 8. The assessee filed an appeal with the Tribunal and along with the appeal also filed the stay application. The Tribunal even at the stage of the stay, set aside the order of the Addl. Collector and directed him to consider the issue both on merits regarding classification as well as on the question of time bar and pass orders afresh. The matter was re-adjudicated and it was held that the product `Prosup was correctly classifiable as goods not elsewhere spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11-A of the Act. As the part of the demand related to the period beyond six month, the notice was required to be issued by the Collector of Central Excise. Even when the Collector of Central Excise (Appeals) set aside the order passed by the Assistant Collector of Central Excise and directed the Assistant Collector of Central Excise to send all the case records to his Collector for such action as may be deemed fit by him under Central Excise Law, only the Assistant Collector of Central Excise wrote to the assessee. There is nothing on record to show that as to what action had been proposed by the Collector of Central Excise. Even at that stage when the Assistant Collector (Adj.), Central Excise, Headquarters Aurangabad, had written to the assessee, no allegation of any wilful mis-statement or suppression of facts was made. Further, we find that the matter was re-adjudicated by the Addl. Collector. 10. Although the Additional Collector of Central Excise restricted the demand for six month, but even for this demand we do not find that there was any valid show cause notice subsisting at that time. The earlier notice had been vacated and no new notice was issued. The observa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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