9911796707
TMI Blog1983 (10) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... within its scope. The appellants paid duty on two consignments of such containers cleared on 10-3-1970. On 21-4-1970, Central Excise Officer informed them by a letter that since flattened cans were treated non-excisable at that time, the payment of duty by the appellants was not in order and that they should, therefore, apply for refund of the same. Then came Notification No. 96/70-C.E., dated 1-5-1970 which fully exempted metal containers re-formed out of duty-paid flattened containers or folded containers. This seems to have set the central excise authorities to reconsider their earlier view. On 18-12-1970, they collected particulars of flattened or folded containers cleared by the appellants without payment of duty and on 22-2-1971 12 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dutiable at their end. The appellants thereupon filed an Original Petition in Kerala High Court. The High Court observed that the possibility of the Central Government having made a mistake in considering the matter in the light of Tariff Item 46 as amended in 1971 (when flattened or folded containers were specifically included therein) could not be ruled out. The High Court directed that the appellants should be given another opportunity to argue their case with reference to the right tariff item and the relevant evidence which they may want to adduce and for this purpose remanded the matter back to the Central Government. The said proceedings, on transfer to this Tribunal, have been taken up as the present appeal. 3. During the heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a regular trade practice to supply metal containers in flattened or folded condition with a view to facilitating their transport; such containers were re-formed in the customer s factory before use. 5. Availing their right of reply, the appellants stated that they had a right to raise the plea of time-bar at any stage of the proceedings as it was only a legal argument and at least in this case did not require verification of any facts. For this they relied on this Tribunal s earlier order reported at 1983 ECR 1193D. 6. The Bench observed that during March and April 1970, to which period the impugned demands pertained, the commodity metal containers was under physical type of control and the self removal procedure to this commodity w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item as originally introduced in 1970 could have included flattened or folded containers. So much so, that when during March, 1970 the appellants themselves volunteered to pay duty on flattened or folded containers, the Central Excise authorities told them in writing not to do so as the goods were considered non-excisable and even asked the appellants to apply for refund of the duty already paid. In the facts and circumstances of this case, we hold that Item 46, as in force during March and April, 1970, did not cover flattened or folded containers. We also find force in the appellants second argument that no proper show cause notice, as specifically required by Rule 10, was served on them within the time-limit laid down in that rule. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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