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TMI Blog2001 (12) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... tification M.S. round bars were eligible for clearance at nil rate of duty if the same were manufactured out of rollable/re-rollable materials which are clearly recognizable as duty paid. The petitioners were served with a notice of demand-cum-show cause as contained in Annexure-2 to each writ petitions on the ground that the petitioners have cleared their end-products at nil rate during the period of August, 1992 to February, 1994 by availing the benefit of notification as aforesaid though the said notification was not applicable in their case. The petitioners were required to show cause to the Commissioner Central Excise, respondent no. 2 as to why the amount as mentioned in the show cause be not recovered from them towards duty and as to why they may not be penalized for contravening the various provisions of the Central Excise Act and Rules framed thereunder. The petitioners filed show cause reiterating that they were entitled to the benefit of Notification No. 202 of 1988-C.E., dated 20-5-88 as amended by subsequent Notification No. 33 of 1992-C.E., dated 1-3-92 as they were using unserviceable rails, fishplates etc. classifiable under Chapter 73 of the Central Excise Tariff A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liminary objection raised on behalf of the respondents is that since the goods were purchased by the petitioners during auction sale at Barabanki which falls within the jurisdiction of Lucknow Bench of Allahabad High Court, the Principal Bench at Allahabad has no jurisdiction to hear and decide the writ petitions. Shri Mathur, on the other hand, has submitted that since the cause of action for the petitioners arose with the passing of the order by respondent no. 2 at Kanpur which is within the jurisdiction of Allahabad High Court (the Principal Bench at Allahabad), this Court has jurisdiction to hear and decide the writ petitions. There is no dispute as to the fact that the discarded rails etc. which have been used as inputs by the petitioners in manufacture of their end-products were auctioned at Barabanki which falls within the jurisdiction of the Lucknow Bench of the Allahabad High Court but the cause of action certainly arose by passing of the order by respondent no. 2 at Kanpur which was affirmed by respondent no. 1 and the same are sought to be quashed. The demand raised by the Department was in pursuance of the orders passed by respondent no. 2 at Kanpur. Therefore, in my v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cause of action would arise for the petitioners at Kanpur, which is within the jurisdiction of the Principal Bench at Allahabad (Allahabad High Court). Therefore, the preliminary objection raised on behalf of the respondents is not sustainable. 7.Now comes to the question whether the petitioners were entitled to the benefit of the Notification No. 202 of 1988-C.E., dated 20-5-88 as amended by Notification No. 33 of 1992-C.E., dated 1-3-92. It is undisputed that the aforesaid Notification exempts goods of the description specified in column no. 3 of the table annexed, which was referred to as final products and which fell within the Chapters 72 and 73 or Heading No. 84.54 of the Schedule of Central Excise Tariff Act, 1985. The question is whether the petitioners were entitled to the benefit of this Notification. The submission of Shri A.P. Mathur, learned Counsel for the petitioners is that there is nothing on record or in the orders passed by the authorities below nor it is the case of the Department that the railway is manufacturer, producer, curer of any excisable goods or stores such goods in warehouse. His submission is that under Section 3 of the Central Excise Act the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold in India, shall be an amount equal to the aggregate of the duties of customs which would be leviable under section 12 of the Customs Act, 1962 (52 of 1962), on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provisions of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975). Explanation 1 x x x x x Explanation 2 x x x x x The provisions of (1A) sub-section (1) shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of, Government, as they apply in respect of goods which are not produced or manufactured by Government." Rules 7 and 9 of the Central Excise Rules read as follows : "Rule-7. Recovery of Duty. - Every person who produces, cures or manufactures any excisable goods, or who stores such goods in a warehouse, shall pay the duty or duties leviable on such goods, at such time and pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent sake it is assumed that the goods were manufactured by railway the same could not have been cleared for consumption by themselves without payment of excise duty as is evident from reading of Rule 9. In the circumstances and in view of the aforesaid provisions of law there was no occasion for the authorities below to presume that the goods were non-duty paid. They shall have to be deemed duty paid at the time when the same were used by the railway or when the same were auctioned. No duty is leviable at the time of sale of excisable goods after the same have been used by the party concerned. Entry No. 73.02 of Chapter 73 of the Central Excise Tariff Act, 1985 reads as follows : "Railway or tramway track construction material of iron or steel, the following: Rails, check-rails and rack rails, switch blades, crossing frees, point rods and other crossing pieces, sleepers (cross-ties), fishplates, chairs, chair wedges, sole plates (base plates), rail clips, bedplates, ties and other material specialized for jointing or fixing rails." 10.The aforementioned materials are used in construction of railway track, which are excisable goods and cannot be cleared without payment of excis ..... 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