9911796707
TMI Blog1990 (1) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... at the procedure mentioned by the respondent no. 1 the Assistant Collector of Central Excise, Calcutta-I Division in the order dated July 28, 1978 is not at all in accordance with the procedure laid down in the Notification No. 198 dated June 16, 1976. It is stated that in terms of the said Notification base periods and base clearances for each of the three categories of factories have to be determined separately in accordance with the procedure specified therein. It is further stated that there is no provision in the said Notification for fixing up the base clearances of those manufacturers who are having factories under different categories in a different way or by taking the total base clearances fixed up for categories 'B' and 'C' of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levying and collecting central excise duty without granting the exemption conferred by the said Notification, the respondents are depriving the petitioner of its benefits without the authority of law. 2. The writ petition is contested by the respondents by filing affidavit-in-opposition. It is disclosed inter alia that in the year 1972-73 the petitioner entered into six separate agreements with Sterling Tea Companies for purchase of tea gardens including land, building, tea bushes, structures, including godowns, factory, Bungalow, plant and machinery except all dues, accruals, claims of realisation upto 31-12-1972 and all export rights relating thereto and all stocks and stores and all cash in hand and outstanding advances on December 31, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned it related only to the specified goods cleared from a factory/factories during the specified period over the base clearances determined by the competent officer the duty exemption under the Scheme is available in respect of those clearances only from whatever factory, which are in excess of the base clearances, was arrived at. In cases where such factories fall under different categories for the purpose of calculating base clearances depending upon the time when the specified goods were (or deemed to be) cleared for the first time, such manufacturer, is not entitled to the exemption unless he exceeds his base clearances. It is asserted that the impugned orders of the Trade Notice are legal and valid and the allegations made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from all such factories during such base period shall be the base clearances. The Trade Notice was issued on 1st of July, 1976 and the petitioner is challenging the same on the ground that the expression "new factory" does not appear in the Notification, on the other hand, the Notification postulates that the goods which are being cleared by or on behalf of the manufacturer will be entitled to exemption under the Notifiction in excess of the base clearances. If there has been any change of the ownership of the factory, then the predecessor-in-interest of that factory was a different manufacturer and the successor manufacturer is not entitled to get the benefit of the exemption on the basis of the base clearances made by the predecessor man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition that its benefit should be passed on to the consumer the manufacturer can retain the benefit of exemption Notification. It is neither intended by notification nor is practical that the assessable value should be redetermined, to include in it the benefit of exemption Notification because the same has not been passed on to the consumer. Conditions for the availment of the exemption notification, should be a part of that notification. Conditions cannot be imposed by administrative directions, guidelines or press notes. Any Administrative action which is contrary to the fundamental provisions of the Constitution or a law would be without jurisdiction and a suit to invalidate such administrative action would not be barred because the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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