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TMI Blog1984 (2) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... amboo pulp. The appellants sent a reply alleging that the show cause notice was time barred. They also urged that the classification lists had been approved by the departmental authorities and, at any rate, they could not be revised retrospectively. They also pointed out that if the department was aggrieved, their remedy was to take appropriate proceedings under Section 35A and that the show cause notice was not justified. The Asstt. Collector by his order No. C. No. V (17) 3/5/74, dated 16-1-1975, held that the demand was not barred under Rule 10A read with Section 9(2) of the Central Excises and Salt Act, 1944, and that the appellants did not mention the existence of the Bamboo Plant in the factory which amounted to a suppression on the basis of which they have availed concessional rate of duty. He, therefore, confirmed the demand set out in the show cause notice. On appeal, the Appellate Collector, Central Excise, New Delhi, in his Order C. No. 24-C.E./Appl./CHG/75, dated 16-7-1976, confirmed the order of the Assistant Collector and rejected the appeal. The Appellate Collector held that it was not a question of classification list but it was a matter which involved short levy du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 4. The following questions arise for determination :- (i) Whether the classification lists, approved in accordance with Rule 173B (2) by the Assistant Collector, can at all be revised by another Assistant Collector having regard to Section 35A. Whether revision alone lies. (ii) Whether the demand is not time barred. (iii) Whether the appellants are entitled to the benefit of the Notification No. 208/67, dated 8-9-1967. 5. Shri Narasimhan argued that the classification lists having been approved by the Assistant Collector, it was not open to his successor to issue a show cause notice which would virtually result in modification of the quasi-judicial orders passed on the classification lists. In other words, he urged that there was an absolute bar against revision of a quasi-judicial decision after one year, and unless the powers of revision are exercised by the appropriate authorities, the show cause notice will not be valid. He relied in support of his contention on the decision of the Tribunal in Order No. 584/83, dated 20-9-1983 (M/s. Nuchem Plastics Ltd. v. Collector of Central Excise, New Delhi) and also the decision reported in 1984 (15) E.L.T. p. 260 (Rish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to have been issued does not stand to reason. 6. We have then to consider whether the Notice as issued is not time-barred. Admittedly, the notice was issued in respect of removal of goods from 1-4-1972 to 10-4-1972. The notice was issued on 19-7-1974. On behalf of the Department, it is pointed out that under Rule 10A, the notice would be valid. Shri Narasimhan, learned Counsel for the appellants, relied on the rulings reported in 1977 E.L.T. p. 193 and 1981 E.L.T. p. 738 (Light Roofings Ltd. v. Supdt. of Central Excise, Kancheepuram and two others), and urged that Rule 10A had been held ultra vires. The learned Counsel pointed out that the show cause notice should have been issued only under Rule 10 if the facts amounted to a mis-statement and Rule 10A would not be applicable. We are of the view that the contention of the learned Counsel for the appellants should be accepted. Rule 10- Recovery of duties or charges short-levied, or erroneously refunded:- (i) When duties or charges have been short-levied, through inadvertence, error, collusion or mis-construction on the part of an officer, or through mis-statement as to the quantity, description or value of such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. In this case, it is urged that there was a short levy due to a mis-statement by the party in respect of the description of the goods. There has been a short levy because it is alleged that the appellants did not make mention of the existence of a plant for making bamboo pulp. If that fact had been disclosed, the assessment would have been totally different and the exemption claimed under the Notification would not have been accorded to him. Assuming for the purpose of argument that the appellants had not disclosed the existence of the plant, the notice should have been issued under Rule 10 within a period of one year. In 1981 E.L.T. p. 114, it had been held that Rule 10 permitted a review of an assessment or a revision of the order, if the appropriate authority comes to a conclusion that the earlier decision was erroneous. On the facts of the present case, even if there had been mis-construction of law, a notice is covered under Rule 10 and not under Rule 10A. The department cannot also rely on Section 9(2) because there is no allegation in the show cause notice to that effect. The learned Counsel for the department urged that the question of ultra vires of Section 10A would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not apply to the present facts. The decision is to the effect that the statutory authorities passing an order based on certain grounds, should not supplement it by fresh reasons in the shape of affidavit or otherwise. It was a case of election petition and has no relevance to the present facts. The affidavit of the Assistant Collector refers to the present position in the factory. That will not help us to decide the matter in issue which relates to the period long anterior. The affidavit of Shri M.H. Pandey, Superintendent, Ballarpur Industries Ltd., indicates that right from the inception this plant had not been used for making bamboo pulp. It is manifest from the particulars furnished by the Institute of Paper Technology that though bamboo and wood are primarily raw materials for making pulp, they differ significantly in their physical and morphological characteristics. Different types of chippers are therefore required for their use. The feed system for wood and bamboo are totally distinct. The energy for chipping and the location of the knives are also different. So it is clear that even though the plant is capable of making bamboo pulp, it was not designed for such a purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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