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TMI Blog1990 (10) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the drill manufactured which was allowed concessional rate of duty was not drill specified in the notifications. As a result of such show cause notices and the cause shown by the petitioner, orders came to be passed on various dates commencing from 24-2-1981 and 10-4-1981. The appeals preferred against those orders of the Assistant Collector of Central Excise, Mysore - 1st respondent herein came to be allowed by the Appellate Collector at Madras by his order dated 25-9-1981. He, however, remanded the matter to the lower authority, namely, 1st respondent, to start proceedings afresh and determine the question whether the controlled drill or drill manufactured by the textile mill in the periods in question was entitled to the concessional rate in the two notifications of the Central Government referred to earlier by us. On such remand, fresh notice as at Annexure-L to the petition dated 4-1-1982 came to be issued by the 1st respondent-Assistant Collector, Mysore. It will be useful to extract portions of that show cause, as that clearly sets out the facts of the case which we may not repeat. 'And whereas, on the basis of an appeal filed by the assessees against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act (See W.P.No. 5892/1986 dated 30th August, 1990). 4. He has drawn our attention to Rule 173B of the Central Excise Rules, 1944 (hereinafter referred to as the Rules) which reads as follows: "RULE 173B. Assessee to file list of goods for approval of the proper officer. -(1) Every assessee shall file with the proper officer for approval a list in such form as the Collector may direct (in quintuplicate) showing - (a) the full description of (i) all excisable goods produced or manufactured by him, (ii) all other goods produced or manufactured by him and intended to be removed from his factory, and (iii) all the excisable goods already deposited or likely to be deposited from time to time without payment of duty in his warehouse; (b) the Chapter, Heading No. and sub-heading No., if any, of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) under which each goods fall; (c) the rate of duty leviable on each such goods; and (d) such other particulars as the Collector may direct. (2) The proper officer shall, after such inquiry as he deems fit, approve the list with such modifications as are considered necessary and return one copy of the approved list to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if such assessee executes a bond in the proper form with such surety or sufficient security in such amount, or under such conditions as the proper officer deems fit, binding himself for payment of the difference between the amount of duty as provisionally assessed and as finally assessed. (2) **** ** ** (3) The Collector may permit the assessee to enter into a general bond in the proper Form with such surety or sufficient security in such amount or under such conditions as the Collector approves for assessment of any goods provisionally from time to time: Provided that, in the event of death, insolvency or insufficiency of the surety or where the amount of the bond is inadequate, the Collector may, in his discretion, demand a fresh bond and may, if the security furnished for a bond is not adequate, demand additional security." That the list submitted in accordance with Rule 173B of the Rules must be deemed to have been approved or the assessee was permitted to avail himself of the procedure under Rule 9B of the Rules cannot be disputed, as duty has been collected on the drill at concessional rate during the periods in question. It is that fact which provoked the 1st respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn in February, 1980. Therefore, Additional Collector at Madras - Appeal was justified in finding fault with the officer-Assistant Collector at Mysore for sending the sample for test out-side the department. We have noticed in the show cause notice of January, 1982 the basis for the entire period in question was the report of the Textile Commissioner dated 24-10-1980 in regard to the sample drawn in February, 1980. Therefore, the case which the assessee-textile mill was to meet was founded on a report which could not have been acted upon by the 1st respondent-Assistant Collector, as the Textile Commissioner was not the proper officer in terms of Section 12A of the Act. Though there is a reference to the report of the Chemical Examiner at Madras, that reference is only by way of sending a copy of such a report and no reference to it is made in body of the show cause notice, most of which we have extracted earlier in the course of this order. Therefore, not only was the assessee-textile mill not called upon to show cause notice against any other Chemical Examiner's report specified, it was directed to show cause only against that which had already been urged by the assessee to be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Law Times, the Supreme Court has ruled as follows: "8. The next submission on behalf of the appellant is that the Classification Lists had been approved earlier and the Excise Authority was estopped from taking a different view. Plainly there can be no estoppel against the law. The claim raised before us is a claim based on the legal effect of a provision of law and, therefore, this contention must be rejected." With that proposition none can have any quarrel. But, that is not the same as stating that the approval of the list can be reviewed by the department. The facts of the case were wholly different and they were as follows: "For the financial year 1 April 1980 to 31 March, 1981 the appellant had disclosed a clearance value of Rs. 13,43,443.55 on account of electric motors for home consumption and a clearance value of Rs. 6,51,138.50 on account of electric motors "for captive consumption" in the manufacture of mono block pumps. It was contended by the appellant that the electric motors used for making mono pumps could not be taken into consideration when calculating the clearances eligible under the Notification. According to the appellant the captive consumption did not a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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