2003 (12) TMI 60

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..... , the Appellate Collector left this question open. Merely because the appellants had claimed exemption from duty also on the ground that they were entitled to the benefit of Notification would not entitle them to avail of such benefit unless the question was specifically decided in those proceedings. As the question was left open the Department could continue to contend that what was being manufactured was sheets and not tapes - No infirmity in order passed - Decided against assessee.
S.N. Variava and H.K. Sema, JJ. [Order]. - This appeal is against an order of the Central Excise Gold (Control) Appellate Tribunal (for short "CEGAT") dated 25th November, 1997. 2.Briefly stated the facts are as follows :- The appellants applied for exem .....

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..... nts' contention. It was held that the tapes were used within the factory i.e. for captive consumption and therefore duty was not leviable. On the question whether the appellants were entitled to the benefit of the above said Notification, it was held as follows :- "The question of application of exemption notification cited by the appellants would arise only if any quantity of tape is cleared as such and not otherwise." 5.It is thus to be seen that the Appellate Collector specifically did not go into the question as to whether or not appellants were entitled to the benefit of the Notification. This question was left open on the basis that such exemption would only be available if tapes were being cleared. This indicates that the Appellate .....

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..... he ground that they were entitled to the benefit of Notification would not entitle them to avail of such benefit unless the question was specifically decided in those proceedings. As the question was left open the Department could continue to contend that what was being manufactured was sheets and not tapes. 8.We also see no substance in the submission that the show cause notice was restricted to retrospective applicability of Rules 9 and 49 and that it was therefore not open to the Department to contend that the benefit of Notification was not available. In reply to this show cause notice the appellants contended that they were entitled to the benefit of the aforementioned Notification. This contention had to be answered. If it was found .....

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