9911796707
TMI Blog1979 (2) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The effective argument of Mr. Dolia which merits acceptance in my view is when there is total lack of jurisdiction there is no reason why the petitioner should be called upon to answer a show cause notice, which on the face of it shows lack of jurisdiction. What he means by this argument is, originally levy was sought to be made under Rule 10 A. But that levy was set aside by the Collector on appeal. However, strangely he directed proceedings to be taken under Rule 9(2) to collect the differential levy, Rule 9(2) cannot be invoked in cases where the removal was with the consent and knowledge of the department. In the instant case, it is not denied that there was no clandestine removal. On the contrary the removal was after filing A.R.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed internally at the same rate as was applicable to the packed contents of paper. 2. As this procedure was considered to be incorrect the Inspector of Central Excise Komarapalayam issued show cause notices No. 1/72, dated 4-5-1972 and No. 3/72, dated 10-7-1972, calling upon them to show cause why the packing and wrapping paper cleared for packing, printing and writing paper not exceeding 75 GSM, viz., 407698 Kg. during the period from 27-7-1970 to 31-3-1972, and 53033 Kg. during the period from 1-4-1972 to 31-5-1972 should not be assessed at 45 paise per Kg. as applicable to packing and wrapping paper instead of at the rate of 15 paise less 3.3 paise as applicable to printing and writing paper. They were asked to show cause why the diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contents are to be assessed separately as they fall under different sub-items of the Tariff, but involving Rule 10A in demanding the differential duty amount by the lower authority is not valid. As such the Appellate Collector vacated the orders passed and directed for taking fresh action under appropriate rules. 5. Messrs. Seshasayee Paper and Boards Ltd, Pallipalaym, are hereby required to show cause to the Assistant Collector of Central Excise IDO Salem (1) why the differential duty of Rs. 1,00,043.99 and 14.080.26 involved during the period from 27-7-1970 to 31-3-1972, and 1-4-1972 to 31-5-1972 should not be demanded under rule 9(2) of Central Excise Rules 1944, vide classification lists, dated 27-10-1969 and 20-3-1972, covering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravention of sub-rule (1) would mean payment of duty in case of self removal or even otherwise. In this case, one fact is clearly admitted by the department and that is the earlier removal was after filing necessary A.R.I. forms and therefore excise duty was collected. What is sought to be collected now is differential duty. Such duty is not contemplated anywhere under Rule 9(2). This is the reason why I characterised the show cause notice shows total lack of elementary knowledge of law relating to excise. Therefore, the petitioner cannot be called upon to show cause against the action proposed when there was total lack of jurisdiction under Rule 9(2). In as much as the lack, of jurisdiction has been fully established there could be no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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