9911796707
TMI Blog2000 (8) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, 1944. The demands were raised with regard to the clearances from 14-8-1996 to 21-11-1996 and 7-12-1996 and 19-12-1996 in respect of 51,718.60 MTs of cement cleared during this period which was in terms of the show cause notice beyond the limits of 99,000 MTs in terms of the amended notification in existence. The appellants have contended that Notification No. 8/96-C.E., dated 23-7-96 and also Notification No. 33/96-C.E., dated 16-12-96 cannot be given retrospective operation. They had also argued that they were originally availing concessional rate of duty in respect of 99,000 Tonnes of cement cleared prior to 23-7-96 in the financial year 1996-97 and in addition would also be entitled to avail concessional rate of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 5/94-C.E. in Notification No. 8/96-C.E. was redundant because the former had already become otiose. Its incorporation in Notification No. 8/96-C.E. was an inadvertent act on the part of the Central Government. In fact, the more appropriate notification that should have found place in the said brackets was Notification No. 12/95-C.E. However, neither the mention of the otiose Notification (No. 5/94-C.E.), nor non-mention of Notification No. 12/95-C.E. did not materially after the spirit of the Notification No. 8/96-C.E. Nevertheless, the Central Government in its wisdom, presumably with an intention to clear off the lurking doubts, if any, on the part of the manufacturers, had chosen to amend Notification No. 8/96-C.E. by Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned reading of all the notifications does hot give a clue that the assessee operating under any of the notifications would be entitled to benefit beyond the limit of 99,000 MTs in a financial year. It is his contention that although in Notification No. 8/96-C.E., mention about Notification No. 12/95-C.E., was not there, but however, the said error was rectified by issuing Notification No. 33/96-C.E., which substitutes the words 5/94 by the word 12/95-C.E. Therefore, the mistake which was inherent in Notification No. 8/96-C.E., has been made apparent. What was implicitly implied in the notification has been made explicit by bringing in Notification No. 12/95-C.E., by amending Notification No. 33/96-C.E., and hence this Notification No. 33/96 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He submits that the appellants while trying to argue that Notification No. 1/95-C.E., having not been mentioned in parenthesis to Notification No. 8/96-C.E., are trying to take advantage of taking benefit beyond 99000 MTs which does not flow from the intention of Notification No. 8/96-C.E. He submits that a plain reading of a notification has to be given and the legislature's intention to grant benefit to an extent of 99000 Tonnes of clearances in a financial year is very clear by amending the Notification No. 8/96-C.E. Hence, he submits that there is no error in the order. 5. On a careful consideration of the submissions and perusal of Notification No. 8/96-C.E. it is seen that clause (c) of the said notification intended to grant bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/96-C.E., and the same had been made very clear by clarifying the same by issue of Notification No. 33/96-C.E. Therefore, the reasons given by the ld. Commissioner in the impugned order is acceptable. Further, the appellants have also not shown that legislature had an intention to give benefit beyond 99000 Tonnes of clearances in a financial year. It is now well settled that a notification should not be read in a way as to give an unintended benefit to an assessee as held by the Apex Court in the case of Mangalore Chemicals Fertilisers Ltd. reported in 1991 (55) E.L.T. 437. We also see the judgment of the Tribunal in the case of CC v. Shaw Wallace Co. Ltd. supra, wherein also the Tribunal clarified that subsequent amendment which was bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im. We are not impressed with this submission of the learned Counsel, the reason being that the reading of the entire show cause notice clearly shows that the proceedings are not based on clandestine removal. The terms of the show cause notice explicitly brings out about the appellant wrongly availing the benefit of the notification. The show cause notice also brings out about the appellants having filed a classification list which had been wrongly approved. In that view of the matter, the Commissioner clearly held that the clearances were not of clandestine removal. We notice that the Commissioner while confirming the demand has quoted Rule 9(2) instead of mentioning Section 11A. The reason being in para 8.7 the Commissioner has also held ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
