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TMI Blog1997 (2) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... ice No. 6/85 adverted to all relevant aspects or deviated from 1981 tariff advice and if so, to what extent, are not detailedly stated in the order of the Tribunal. The Appellate Tribunal casually referred to a later tariff advice No. 6/85, without fully and effectively appreciating its contents, its scope and the impact of the earlier tariff advice No. 83/81. The above aspect is vital and fundamental to the basis of which the Appellate Collector granted relief to the appellant. We are of the view that the Appellate Tribunal has failed to consider the matter according to law and the order appealed against should be set aside and we hereby do so. Appeal allowed and restore the order of the Appellate Collector of Central Excise. - 2344 of 1986 - - - Dated:- 4-2-1997 - S.P. Bharucha and K.S. Paripoornan, JJ. [Judgment per : Paripoornan, J.]. - The appellant is a small scale industry. It carries on the business of manufacture of liquid Carbon Dioxide (CO2) conforming to ISI Grades. The factory is situated at Kalamassery in Ernakulam District, Kerala State. The first respondent in this appeal is the Collector of Central Excise, Cochin. The second respondent is the Fertiliser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -waste gas) in case it was subsequently decided that they were not entitled to receive the said carbon dioxide free of duty under Notification No. 7/65. 4.The appellants were served with a show cause notice dated 20-11-1978 to explain why L 6 licence granted to them (to receive impure carbon dioxide gas (waste gas) by pipe line from M/s. FACT.) and also L 4 licence for the manufacture of carbon dioxide (or liquid carbonic acid) should not be revoked and why duty of Rs. 8,92,695.60 along with SED Rs. 19,823.10 should not be demanded from them for the period from March 1977 to September, 1978 under Rule 10 of the Central Excise Rules, 1944. 5.The plea of the Revenue was that the appellant was not entitled to receive CO2 gas (raw carbon dioxide) free of duty under Notification No. 7/65 as they are not using the same for any "industrial purposes" involving any product other than the self-sale of CO2 which was received by them. 6.After hearing the appellant, the Assistant Collector of Central Excise passed an order on 2-2-1982 holding that the appellants are not eligible for the benefit of the Notification No. 7/65, dated 30-1-1965 and in consequence the Superintendent of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of Trade Notice. (The Appellate Collector also found that the carbon dioxide produced by M/s. FACT will fall outside the purview of Item No. 14H of the Central Excise Tariff, since the gas did not conform to the "marketable grade" as prescribed in the ISI specification). Regarding the applicability of trade notice dated September, 1981, the Appellate Tribunal observed, in Paragraph 51 of its order, thus : "The Trade Notice on which the respondents seek to rely was issued nearly 3 years later. In these circumstances the trade notice has no relevance to what happened earlier. Shri Tripathi had filed before us a copy of the Tariff Advice No. 6/85, dated 6-2-1985 of the CBEC along with a model trade notice, to the effect that impure carbon dioxide not conforming to I.S.I. specifications produced by distilleries and fertilizer units, was correctly classifiable under Item 14H. It may be presumed that the Collectorates, or at least some of them duly issued trade notices to this effect in early 1985. If the trade notice of 1981 could be considered as relevant to matters occurring 3 or more years earlier, we see no reason why a trade notice of 1985, to the contrary effect, should n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GOVERNMENT OF INDIA CENTRAL BOARD OF EXCISE CUSTOMS NEW DELHI , THE 24TH AUGUST, 1981 . To, All Collectors of Central Excise All Collector of Customs All Appellate Collectors of Customs Central Excise All Deputy Collectors of Central Excise. Sir, Sub : GASES - Carbon Dioxide gas emanating from distillery portion of Sugar factories and Fertiliser factories - Whether classifiable under T.I. 14H or T.I. 68 - Question regarding. ..................... I am directed to say that a question has been raised whether raw carbon dioxide gas emanating from distilleries attached to sugar factories is classifiable under Item 14H or Item 68 of C.E.T. The matter was discussed in the 15th South Zone2. Tariff-cum-General Conference held on the 19th and 20th May, 1981 at Bangalore. The conference noted that certain gases arise in3. distilleries. These are described as raw carbon dioxide, or waste gases and are similar to kiln gas generated in sugar factories. Such waste gases have carbon dioxide only to the extent of about 50%. However, in so far as fertiliser factories are concerned, it was noted that the purity of Carbon Dioxide gas produced in the factories ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t dated 4-5-1983 has levied the duty for a longer period, from March 1977 to February, 1982. The show cause notice served for a shorter period cannot be relied on for the purpose of levy for a much longer period. We should say that the appellant was not served with a proper notice before saddling the liability for a period beyond September, 1978. This is unfair and vitiates the proceedings. 13.The Tribunal has stated that the trade notice issued in September, 1981 based on Trade Advice of the Board dated 24-8-1981 was issued three years later than the relevant period. The Tribunal refers to Trade Advice No. 6/85, dated 6-2-1985 of the Central Board of Excise and Customs along with "a model trade notice" wherein it seems to have been stated that carbon dioxide not conforming to I.S.I. specifications produced by distilleries and fertilizer units was correctly classifiable under Item 14H. The Appellate Tribunal was of the view "that it may be presumed" that the Collectorates, or "at least some of them" duly issued trade notices to this effect in early 1985, and so a later trade notice could also be taken into account. 14.We hold that the reasoning and conclusion of the Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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