9911796707
TMI Blog1988 (8) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... 12/79. (2) Order in Original C.No. IV/1/160/79 dated 9-1-1981. (3) Order in appeal C.No.V/30-6-1981 dated 8-6-1981. Please take notice that you will have to pay duty of Rs. 39,249.60 (Rs. Thirty-nine thousand two hundred and forty nine and paise sixty only) being the duty on electric motors cleared from 8-6-1979 to 19-7-1979 calculated on the directions received in reference No. 3 out of Rs. 99,971.20p demanded and confirmed in reference Nos. 1 and 2. PARTICULARS OF DUTY TO BE PAID June 1979 : Rs.21,170-40 July (19-7-79) : Rs.18,079-20 Total Rs.39,249-60 You are hereby instructed to pay the amount within ten days from the date of receipt of this letter and paid up challan produced before the undersigned failing which appropriate action will be taken to realise the amount as per Rules." 4. The impugned notice in the writ petition No. 6072 of 1981 is O.C No. 1096/81 dated 14-7-1981 from the office of the Superintendent of Central Excise, Coimbatore II C Range, 6/7, Race Course, Coimbatore. It is to the following effect: To M/s. Meenakshi Foundry, 14 No.8/EM/76, Singanallur, Coimbatore - 5. Gentleman, Sub: Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e upon the same in his show cause notice. On 6-12-1979, the 1st respondent has already included the said sum of Rs. 21,763.20 in his show cause notice which is for a total sum of Rs.99,971.20 for the period 1-4-1979 to 19-7-1979. The third respondent, by his order in appeal No. 439.80 dated 8-6-1981 has disallowed the claim of the 1st respondent to the tune of Rs. 60,721.60 as time barred. As such the aforesaid sum of Rs. 21,763.20 was included and to be treated as time barred. 8. It is submitted on behalf of the petitioners herein that the first respondent has issued again a notice under OC1096/81 dated 14-7-1981 demanding the payment of the said amount of Rs. 21,763.20 within 10 days failing which appropriate action would be taken against the petitioners. The action of the first respondent in issuing the said notice is illegal and unconstitutional. 9. In other words, the case put forward by the petitioners is that the first respondent had already issued a demand notice on 6-12-1979 for a sum of Rs. 99,971.20 inclusive of the aforesaid sum of Rs. 21,763.20, that the issuance of two notices for the same dues is illegal and unconstitutional and that when the 3rd respondent has d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Electric Motors and the power driven pumps under Small Scale Sector. The value of clearance of Electric Motors from the factory during 78-79 is Rs. 18,37,652/-. 14. According to the condition (ii) of the Notification No. 71/78, the manufacturer of the specified goods are not entitled to the exemption if the clearances during the preceding financial year had exceeded Rs. 15 lakhs. Therefore the petitioner is not entitled to the exemption since the value of clearances during the preceding financial year (i.e. 1978-79) is more than Rs. 15 lakhs (i.e. Rs. 18,37,652/-). 15. It is seen that by misinterpreting 71/78 notification applying the condition a(iii) of the Notification which is applicable for the factory manufacturing more than one tariff item and by taking that even in respect of factory manufacturing one tariff item, the limit of the clearances should be Rs. 20 lakhs, the Assistant Collector has wrongly extended the benefit of the exemption to the petitioner and he has also sanctioned the refund of Rs. 21,763.20 paid by the petitioner during the period 1-4-1979 to 30-4-1979. 16. Notification 71/78 of the C.B.E. C. Bulletin reads as follows : - "In exercise of the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Collector of Central Excise, Madras had taken up the review of the refund of Rs. 21,763.20 made erroneously by the Assistant Collector and issued a show cause notice in this regard on 19-1-1980 under Section 35A(b) of the Central Excise Act. After hearing the representation of the petitioner, the Collector of Central Excise, Madras has set aside the Assistant Collector's order sanctioning the refund of Rs. 21,763.20 on 17-10-1980. The petitioner has filed a revision petition before the Govt. of India and also requested for the stay of the Collector's orders but the stay was refused by the Government of India. 19. It is contended on behalf of the petitioners that since the revision is pending before the Govt. coercive steps should not be taken against the petitioners. 20. It is also mentioned in the counter filed on behalf of the respondents in both the petitions that pursuant to the show cause notice dated 6-12-1979 issued to the petitioner, after hearing the petitioner, the Assistant Collector of Central Excise, Coimbatore has decided the case and demanded the duty amount of Rs. 99,971.20 show in the show cause notice. The order of the Assistant Collector was passed on 9-1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they are entitled to the exemption only when the clearance from the factory does not exceed Rs 15 lakhs in the preceding financial year, but by mistake the Assistant Collector has extended the exemption from 1-4-1979 even though their clearances in the preceding financial year (i.e. 1978-79) was more than Rs. 15 lakhs and also granted the refund of duty paid from 1-4-1979 to 30-4-1979 to the tune of Rs. 21,763.20. 27. On review, in terms of Section 35A(2), the Collector of Central Excise, Madras set aside the order of the Assistant Collector granting refund. Though the Assistant Collector has included the amount in question in his order, the Appellate Collector (3rd respondent herein) has specifically stated that this amount was included in the Assistant Collector's order and therefore restricted demand to the six months time limit from the date of receipt of the show cause notice issued by the Assistant Collector. Therefore the Appellate Collector has neither excluded this amount under dispute nor specified the amount to be disallowed. Therefore the allegation that the said sum of Rs. 21,763.20 is time barred cannot be upheld. 28. It is stressed by Mr. V. Natarajan, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
