9911796707
TMI Blog1987 (6) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Rules, 1944, the Government had exempted pipes and tubes of copper and copper alloys falling under sub-item (3) i.e. pipes and tubes of Item 26A of the Schedule to the said Act in the manufacture of which duty-paid copper and/or copper alloys in any crude form or manufactures thereof are used. The relevant portion of the said Notification as amended from time to time is as follows : "In exercise of the powers conferred by Rule 8(1) of the Central Excise Rules, 1944, the Central Government hereby exempts pipes and tubes of copper or copper alloys, falling under sub-item (3) of Item No. 26A of the Central Excises and Salt Act, 1944 (1 of 1944) in the manufacture of which duty paid copper or copper alloys in any crude f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laiming of set off of Rs. 53,840.41 and, therefore, there was a short-levying of the excise duty to the extent specified in the said notice. The said notice related to the period from 24th February 1971 to 28th February 1972. The petitioners by their reply dated 9th June 1972 submitted that they had properly claimed the set-off and that they had not violated any of the rules. After considering the reply and after hearing the petitioners, the Assistant Collector by his order dated 24th May 1974 dropped the proceedings as against the petitioners. Ordinarily, the matter should have rested at that stage. 3. However, after about 10 months, once again the Office of the Superintendent of the Central Excise thought of issuing another notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 36(2) of the said Act proposing to set aside the order passed by the Appellate Collector of the Central Excise and to restore the order of the Assistant Collector of Excise. The petitioners by their reply dated 4th August 1976 explained the entire circumstances and pointed out that the action was against law, equity and fair play and, therefore, they submitted that no such review or revision was possible. The Government by its order dated 18th January 1978 negatived the contention of the petitioners and set aside the order of the Appellate Collector and restored the order of the Assistant Collector. The petitioners have challenged in this petition under Article 226 of the Constitution of India the said two orders of the Assistant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have called upon the petitioners to pay the amount claimed by them by way of set-off under the said notification. 7. But it is unfortunate that the Government has persisted in their action. Earlier on 3rd May 1972 they thought of taking action against the petitioners and that is how the first show cause notice was issued. When the petitioners submitted their case and explained all the facts, the Assistant Collector by his order dated 24th May 1974 dropped the entire action against petitioners. Therefore, no second notice could have been issued by the Department for the same period and on the same facts. The Government tried to justify it on the basis that the earlier notice was with regard to the penal action while the latter notice wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the date when the duty paid or such other date when the duty has been short levied or has not been paid in full, or the date on which the duty was required to be paid under these Rules. The notices themselves show the relevant dates when the duty was paid or was not paid by claiming the benefit of the said notification and the exemption claimed was in the years 1971 and 1972. If that is so, the Government could have taken action as against the petitioners under Rule 10 of the said Rules within one year from the said date when the duty was paid or was required to be paid. The contention of the respondents that the limitation would start from the date when the Department makes an endorsement on the assessment memorandum of R.T. 12 returns, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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