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TMI Blog1988 (8) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the said period as had been manufactured prior to 1-3-1982. This was on the basis that prior to 1-3-1982 these goods were exempted from payment of duty and hence goods manufactured during the said period would not become liable for duty though removed subsequent to 1-3-1982. However, the Collector (Appeals) further held that the refund claim could be allowed only in respect of duty paid during the period of 6 months before 22-10-1982. 3. Excise Appeal No. 1465 of 1986 is by the Revenue against the said order with reference to the part of the order under which the refund claim had been allowed in part. Excise Appeal No. 2859 of 1986 is by the assessees against that part of the order which rejected part of the refund claim as barred by limitation. It is in these circumstances that the two appeals have been heard together. 4. We have heard Shri L.C. Chakraborty for the department and Shri Daya Sagar, Conslt. for the assessees. 5. In the appeal by the department, as originally filed, only two grounds had been raised. Both of them were on the basis that even before 1-3-1982, when the subject goods were classifiable under Item 68 CET, they were not unconditionally a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision to the same effect is in the case of the Andhra Sugar Ltd. [1987 (31) E.L.T. 563]. 8. However, it is contended by the department in these appeals that the goods were not unconditionally exempted, but only subject to a condition. The exemption had been claimed and granted in terms of notification No. 118 of 1975. The exemption would be available under the Notification if the goods were intended to be used in the same factory or another factory of the same manufacturer. Therefore, it is not as if the exemption was to be with reference to a future use of which proof has to be given. In these circumstances, it would be wrong to claim that the exemption was conditional and was not available at the time of manufacture. 9. In the circumstances we hold that the conclusion of the Collector (Appeals) as to the entitlement for refund in respect of duty paid on the pre-budget wholly exempt stock was correct. 10. The question then is whether the Collector (Appeals) was correct in limiting the relief in respect of duty paid in the period of 6 months preceding the refund claim. In the appeal by the assessee it is contended that the Collector ought not to have looked i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment having been made under protest and pass suitable orders thereafter. Sd/-(V.T. Raghavachari)Member (J) 13. [Order per : D.C. Mandal, Member (T)]. - I have read the Order written by Shri Raghavachari, Member (Judicial) and I agree with his conclusion in para 6 of his order regarding additional ground raised by the assessee by the Misc. Application, but I could not persuade myself to share his views on the main issue as to whether the stock of the finished goods lying on 28-2-1982 was subject to Central Excise duty. Prior to 1-3-1982, the goods were classifiable under Item 68 of the Central Excise Tariff. Under Notification No 118/75-C.E., dated 30-4-1975, the goods falling under Tariff Item 68, manufactured in a factory and intended for use in the factory in which they were manufactured, or in any other factory of the same manufacturer, were exempted from the whole of excise duty leviable thereon, provided that where such use was in a factory of a manufacturer, different from the factory where the goods had been manufactured, the exemption contained in the notification was admissible subject to the proper officer being satisfied that the goods were intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 13-4-1975, the goods falling under Tariff Item 68 manufactured in a factory and intended for use in the factory of manufacture or any other factory of the same manufacturer, were exempted from the whole of Excise duty leviable thereon provided that where such use was in a factory of a manufacturer different from the factory where the goods had been manufactured, exemption contained in the notification was admissible subject to the proper officer being satisfied that the goods were intended for such use. A reading of this notification clearly shows that the goods did not stand exempted as soon as these were manufactured but no duty was required to be collected in respect of the same in case these were cleared for the intended use of captive consumption in the same factory or for the intended use in the factory of the same manufacturer subject to the compliance by the assessee of the provisions of the notification in this regard. What the notification says is that the duty should not be collected if the goods are cleared for the intended use in the same factory in which these are produced or in the factory of the same manufacturer. The benefit of the notification is, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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