9911796707
TMI Blog2000 (6) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... The facts giving rise to this appeal may briefly be stated as under : 3. The appellants are engaged in the manufacture of plastic ball bearings Bobin holders. The classification of their product was decided by the Assistant Collector vide order dated 23-7-1981 under TI 49 of the erstwhile Central Excise Tariff, but against that order they filed writ petition in the Hon ble High Court of Gujarat and got interim relief restraining the Government from levying and collecting the duty on the product at higher rate than applicable under TI 15(a)(ii). The appellants then stopped paying the duty in view of that order of the Hon ble High Court from August 1991. They also went in appeal before the Collector (Appeals), Bombay against the classificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notices it was mentioned that the product was classifiable under TI 49 of the erstwhile Tariff. Secondly, that 13 show cause notices out of 14 on the strength of which duty demand had been confirmed were never actually received by the appellants. 7. On the other hand, the learned SDR while refuting the first contention of the counsel, has contended that the classification order of the Assistant Collector dated 23-7-1981 classifying the product in question under TI 49 of the erstwhile Central Excise Tariff, was challenged by the appellants themselves and in their appeal and the Collector (Appeals) reversed that order and classified the product under TI 68 of the erstwhile Tariff and that even the Tribunal also confirmed that order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at order of the Assistant Collector before the Collector (Appeals) who reversed the same vide order dated 4-11-1982 and by holding that the product was classifiable under TI 68 of the erstwhile Central Excise Tariff. However, meanwhile the Assistant Collector kept on issuing the show cause notices for payment of duty to the appellants on the basis of his original order so that the demand did not become time barred. The order of the Collector (Appeals) was further challenged by the appellants before the Tribunal but the same was confirmed vide order dated 3-7-1987. 10. Since the product of the appellants was finally held by the Tribunal to be classifiable under TI 68 of the erstwhile Tariff and not under TI 49 as earlier classified by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct in question. He rightly confirmed the duty demand in respect of the product in question by classifying the same under TI 68 of the erstwhile Central Excise Tariff. 11. The order-in-original of the Assistant Collector confirming the duty demand on the appellants had been rightly endorsed by the Collector (Appeals) in the light of the facts and circumstances detailed above. No prejudice can be also said to had been caused to take appellants by this order, as they admittedly had not paid the duty on the product for the period in question. The classification of their product under TI 68 of the erstwhile Tariff had already become final against them and in pursuance of that order the duty demand had been raised from them by the Assistant Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garh, 1996 (81) in E.L.T. 244 and CCE Cochin v. South India Viscose Ltd., 1997 (92) E.L.T. 245 referred by the counsel is not at all attracted to the facts of the present case. In the first case, the show cause notice only mentioned that the appellants took the credit of the duty which was not admissible on the inputs purchased before 8-12-1989 and that the declaration filed earlier dated 4-4-1986 did not declare the inputs. They were served with show cause notices accordingly for recovery of the Modvat credit amount. The Assistant Collector although agreed with the contention of the appellants, but went on to confirm the demand on the ground that air bags in the manufacture of which resins were used were tools and no credit was admissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 14 demand notices adjudicated upon by the adjudicating authority, 13 were never actually received by the appellants. No affidavit of any partner of the appellants to that effect had been placed on record before us. From the impugned order of the Collector (Appeals) it also cannot be said that this plea was raised before him. The only plea put forth before him was that the Assistant Collector had travelled beyond the scope of the show cause notices while confirming the duty demand on them. It was never contended before him that the show cause notices were also never received by them. Therefore, for the first time the plea regarding non-receipt of the show cause notices cannot be allowed to be raised. This plea appears to be an afterthought ..... X X X X Extracts X X X X X X X X Extracts X X X X
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