9911796707
TMI Blog2000 (8) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... ial for producing the burnt lime and there was only one common elevator for Kiln I II. Therefore, the factory was clearing the burnt lime since 1975 without Central Excise licence and show cause notices were issued demanding duty on the present appellants. Even though M/s. HUF Chemicals and M/s. Abcoy Ltd. who had filed declarations on 14-3-1987 for claiming exemption under Notification 77/83. Since it appeared from the statements recorded from their various employees and Works Engineer and Chief Chemist that the activities carried out in the three Kilns were a common endeavour. Enquiries made also revealed that the appellants had obtained Central Excise licence (L-4 Licence) for paint and varnishes which was not renewed after 31-12-1979. They had filed Classification list on 13-11-1975 which was approved on 16-12-1975 wherein the description of the goods manufactured was given as follows : 1. Burnt lime as filler-material-precipitated Calcium Carbonate. 2. Chalk 3. Barytes Powder which was approved at nil rate of duty in terms of Notification No. 23/55, dated 28-4-1955, 27/73, dated 1-3-1973 and 126/75, dated 12-5-1975 2. The Collector after hearing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by documentary evidence and therefore, value as arrived at in the show cause notices was accepted by him and once such value were considered, he came to the conclusion capital investment on plant and machinery has exceeded the limits laid down in different Notifications issued under tariff item 68 from 1-4-1978 to 28-2-1986 and therefore, the manufacturers have become ineligible for exemption . Since value of the limitation of clearances in the preceding financial year were exceeded, duty on the clearances made from 1-4-1978 to 28-2-1986 was required to be determined and demanded and after 1-3-1986 he found that the benefit of Notification 175/86 was not eligible as the appellants registration having been cancelled from 23-3-1987, by the District Industry Centre, Tirunelveli and he found them ineligible for the benefit of Notification 175/86. As regards suppression of facts the Commissioner found that: (a) the manufacturers have wrongly described the product in 12975 as already mentioned. (b) The manufacturers availed of exemption from licensing control under Notification 111/78 when they are not eligible therefor; (c) At the time of applying for licence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification list or price list respectively during 1979 to 1984. The offences under Rules 52A and 173Q are established since they were not issuing gate passes for the goods cleared by them and the charge under Rule 226 is established since they have not maintained accounts as provided in the said Rule. 4. The learned Consultant for the appellants submitted that : (a) Show Cause Notices issued at Sl. Nos. 7 8, at para 17 of the impugned order which are dated 20-9-1987 for the period 84-85, 85-86 and up to 31-1-1987 are not valid show cause notices having been issued without jurisdiction, by the Sudpt. of Central Excise invoking the proviso to Section 11A of the CE Act, 1944. He relied upon the judgment of the Hon ble Supreme Court in the case of CCE v. ONGC as reported in 1988 (103) E.L.T. 3 (S.C.) wherein the Supreme Court had held that Supdt. of Central Excise is not competent authority to issue show cause notice under the proviso to Section 11A (1) of the CE Act and the same is required to be issued by the Collector of Central Excise only. Since in this case, no corrigendums were issued, no demand could be effected as proposed by these show cause notices. He stressed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards suppression he mentioned that the declaration in the classification list filed which read burnt lime as filler materials and precipitated calcium carbonate was admittedly misleading declaration amounting to misdeclaration which goes to support invocation of the provisions of Section 11A proviso. 6. The learned Consultant in the rejoinder submitted that classification list will reveal that they had declared only calcium carbonate and the interpolations in the present classification list of the words filler material relevant Notifications are written by the officer who applied his mind. There is no allegation of collusion in the show cause notice. 7. We have considered the submissions and the material on record and we find that : (a) In the facts of this case, no reason could have been arrived at for invoking the proviso to Section 11A(1). Appellants had filed classification list, obtained licence, got it extended from time to time for four years and thereafter did not renew it and the classification lists were approved. The classification fully exempts the goods from duty. In the classification list filed by them they have declared the product as calcium carbona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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