9911796707
TMI Blog1991 (2) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter called "the Act"). However, this inter-mediatory product was considered both by the assessee as well as by the Department for a long time, to be not exigible to Central Excise duty. Therefore, duty was neither demanded nor paid by the 1st petitioner for the relevant period, i.e., 23-10-1977 to 22-10-1982. However, in June, 1983 the respondents drew certain samples of the LDPE lay-flat tubings and films, and sent them to the Government Test House at Alipore, Calcutta, for ascertaining the thickness of the goods. A report was received from the said Test House on 25-3-1983 by the department, and thereafter a copy of the same was sent to the 1st petitioner. Sometime thereafter the Superintendent of Central Excise, Visakhapatnam, issued a show-cause notice dated 17-11-1983, in exercise of his powers under Section 11A of the Act, calling upon the 1st petitioner to show cause why an amount of Rs. 33,87,138.13 should not be collected from the 1st petitioner towards the basic excise duty, and 5% of special excise duty on the basic excise duty, for the period 23-10-1977 to 22-10-1982. The 1st petitioner sent a reply to the said show-cause notice in writing, and thereafter a personal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department. With regard to Section 11C of the Act and the notification issued thereunder, they stated as follows :- "This is a case where a duty was levied as is evidenced by the order of the Asst. Collector of Central Excise dated 12-11-1984 in accordance with law and that order also has been allowed to become final by reason of the appellants admittedly not having appealed against the same. In such a situation, a creature of the statute like the Tribunal would not have jurisdiction to sit in judgment over the validity of the said order not appealed against and grant a relief, which is declaratory in nature, as prayed for by the appellants ... Since we have already found that the appellants would not be entitled prima facie to seek waiver of pre-deposit by virtue of Notification issued under Section 11C and since the appellants have categorically stated that they are not putting forth any other plea, we dismiss the application as well as the appeal....". Thereafter, it appears, the Superintendent of Central Excise sent a communication dated 25-1-1990 to the petitioner-company stating that if the amount is not paid within 15 days, coercive steps will be taken. It is at that jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general practice : Notwithstanding anything contained in this Act, if the Central Government is satisfied - (a) that a practice was, or is, generally prevalent regarding levy of duty of excise (including non-levy thereof) on any excisable goods; and (b) that such goods were, or are, liable - (i) to duty of excise, in cases where according to the said practice the duty was not, or is not being, levied, or (ii) to a higher amount of duty of excise than what was, or is being levied, according to the said practice, then the Central Government may, by notification in the Official Gazette, direct that the whole of the duty of excise payable on such goods, or as the case may be, the duty of excise in excess of that payable on such goods, but for the said practice shall not be required to be paid in respect of the goods on which the duty of excise was not, or is not being, levied, or was, or is being, short-levied, in accordance with the said practice." It is under this provision that the Central Government had issued the Notification dated 16-10-1984, relied upon by the petitioners. That notification reads as follows :- "....In exercise of the powers conferred by Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the goods on which the duty of excise was not, or is not being, levied, or was, or is being, short-levied, in accordance with the said practice. 8. In our view the question of "recovery" of duty of excise, which Section 11-C intends to stop, would arise only if a levy has been made by the authorities contrary to the generally prevalent practice regarding levy of duty, including non-levy thereof, on any excisable goods. In other words, whenever there was, or is, such a generally prevalent practice, and for some reason or other it has been deviated from by the authorities and a levy is made under the Act, the Central Government may, by notification, stop recovery of duty under such levy, if it is satisfied that there was a general practice as mentioned in the said Section. It is pursuant to the exercise of these powers under Section 11-C of the Act that the Government of India had issued the Notification dated 16-10-1984, covering the period 25-11-1978 to 22-10-1982 in respect of the goods in question. In view of the said notification it is, therefore, clear that notwithstanding the levy, or the order of assessment, recovery of duty in respect of the said period is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "duty of excise was not, or is not being, levied" do not describe the actual action of the assessing authority in the particular case, but refer to the general practice under which duty was not, or is not being levied. It is, therefore, clear that, if duty was not being levied under a general practice prevalent and the Central Government recognized the existence of such a practice, it can stop the recovery of duty by issuing a Notification under Section 11-C, notwithstanding anything contained in the Act, i.e., notwithstanding the existence of an order levying duty, already passed by the authorities. We, therefore, reject the above said contention raised by the learned Standing Counsel for the Central Government. 11. It is, however, to be noted that the period covered by the aforesaid notification is 25-11-1978 to 22-10-1982, whereas the period covered by the demand in question is 23-10-1977 to 22-10-1982. It is clear that the notification does not cover the period from 23-10-1977 to 24-11-1978. We, accordingly, clarify that it is open to the respondents to issue a revised demand to the petitioners in respect of duty payable for the goods in question, for the period from 23-10-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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