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TMI Blog2005 (1) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... st all of them by issuing Show Cause Notices. The demand in respect of each unit of the Respondent covered the period from 1-8-95 to 4-8-99. Penal provisions and proviso to Section 11A of the Central Excise Act, 1944 were invoked in the show cause notices. However the adjudicating authority in his orders held the following :- (1) Drawal of water, using power to overhead tanks could not be treated as use of power in the processing of fabrics and hence entitled for exemption under Notifications 48/90-C.E., 28/94-C.E. and 41/95-C.E. dated 16-3-95. (2) Bleaching dyeing and printing carried out without aid of power eligible for exemption under Notification No. 40/95-C.E. dated 16-3-95. (3) Silicate colour fixation is a curing process not integral to manufacture and eligible for exemption under Notifications 48/90-C.E. and 41/95-C.E. (4) Stentering, padding, pressing etc. not entitled for exemption as they are carried out with the aid of power under Sl. No. 9 of Notification No 9/96-C.E. dated 16-3-95. (5) However, the exemption under Sl. No. 13 of the Notification No. 9/96-C.E. is eligible, since the bleaching, dyeing, printing processes are carried on without the aid of power thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period from 1-8-95 to 4-8-99 under Notification No. 41/95 dated 16-3-95 (Sl. No. 5 (ii) and 9/96 (Sl. No.12) and B.E.D. is leviable from 23-7-96 to 4-8-99 under Notification 8/96 C.E dated 23-7-96 (Sl. No. 52.14). (b) M/s. Shri Dhanalakshmi Cloth Dyeing & Printing Works It is felt that A.E.D. is leviable on the cotton fabrics processed by M/s. DTDW at the appropriate rates for the period from 1-8-95 to 4-8-99 under Notification No. 41/95 dated 16-3-95 Sl. No. 5 (ii) and 9/96 (Sl. No. 12) and B.E.D. is leviable from 23-7-96 to 4-8-99 under Notification 8/96-C.E. dated 23-7-96 (Sl. No. 52.14). (c) M/s. Dhanalakshmi Textile Industries It is felt that A.E.D. is leviable on the cotton fabrics processed by M/s. DTI at the appropriate rates for the period from 1-8-95 to 4-8-99 under Notification No. 41/95 dated 16-3-95 Sl. No. 5 (ii) and 9/96 (SI No. 12) and B.E.D. is leviable from 23-7-96 to 4-8-99 under Notification 8/96-C.E. dated 23-7-96 (Sl. No. 52.14). (7) The Respondents were engaged in the business of manufacturing process cotton fabrics since 91/92. Even earlier the Revenue took action against them for using power and claiming exemption wrongly and adjudication order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri.). (vii) National Dyers - 1996 (85) E.L.T. 83 (Tri.). He said that the authorisation to file the application under Section 35E has not been signed by the concerned Member of the CBEC, but has been merely attested by a Superintendent. As the Member has not signed the authorisation, the application filed pursuant to the said order of the Board is non est, illegal and improper in law. In the case of CCE v. Tetragon Chemie (P) Ltd. - 2001 (135) E.L.T. 1435 (T) it has been held that the order of the Board containing extrapolations by hand, of a typed order, not signed by the Board Member is not acceptable. The decision is squarely applicable to the facts of the present case and the appeal is liable to be summarily rejected. As per Section 35E of the Act, the Board should apply for determination of such points arising out of the decision or order as may be specified by the Board in its letter. But the Board has not specified any point for determination by the Tribunal but has abdicated its responsibility, by asking the Tribunal to determine whether the order impugned is legal or proper. The following case law was relied on :- (i) CCE v. Rohit Pulp and Paper Mills - 1998 (101) E.L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -C.E. as far as the Respondents are concerned. It is incorrect on the part of the appellant alleging that the diesel engine was removed at the time of visit of the officer but to put operation even during earlier period. The correct position is that when the Notification 40/95-C.E. dated 16-3-95 was rescinded, the diesel engine was removed and the fact of removal was informed to the jurisdictional officers. The diesel engine was purchased and installed on 1-4-95 and removed after Notification 40/95 was rescinded but diesel engine was used after Notification 9/96 was brought in force. 5. Shri L. Narasimha Murthy, learned SDR reiterated the contentions of the Revenue in the appeals memo. 6. We have gone through the records of the case carefully. The case of the Revenue is that the Respondents' units carried out certain processes with the aid of power and therefore, they are not entitled for exemption from basic and additional duty of Excise despite the fact that the process of bleaching, dyeing and printing are done without the aid of power or steam and also that the Respondents do not have facilities for carrying out the above-mentioned processes with the aid of power or steam. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to say, applying starch or fatty material on one or both sides of the fabric. 11. Expanding 12. Hydro-extraction with the aid of power, that is to say, mechanically extracting or mechanically squeezing out water from the fabric. Explanation - For the purposes of this notification, "calendaring" shall include processing of cotton fabrics with the aid of zero-zero machine without a stenter attachment. The relevant portion of the Notification 9/96-C.E. dated 23-7-96 is as under :- Effective rates of additional duty on certain specified goods of Chapter 24 and textiles. - In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excises and Salt Act, 1944 (1 of 1944), read with sub-Section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods specified in column (3) of the Table below and falling within the chapter or heading No. or sub-heading No. of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), as are specified in the corresponding entry in column (2) of the said Tabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r anyone or more of these processes with the aid of power or steam. xxxx xxxx 7. Both the above notifications are similarly worded, hence the Commissioner has carried out the detailed analysis of Sl. No. 13 of Notification 9/96. He has given a finding that the Respondents' units carried out only some of the 12 processes which are specified thereon. He has also given a finding that the Explanation-II in Sl. No. 13 would not come in the way of the Respondents' units as they do not process "denim fabrics" or other fabrics mentioned therein. He has also given a finding that the Respondents' units do not have facilities for carrying out bleaching, dyeing and printing with the aid of power or steam. Hence in his view all the conditions relating to Sl. No. 13 in Notification 9/96 are satisfied. In view of this finding for the entire period of dispute according to the Commissioner, the Respondents' units are exempted from both basic and additional duty of Excise. While interpreting the notification, the Commissioner is of the view that if any of the specified 12 processes are carried out with the aid of power, it doesn't matter and still the Respondents would be entitled for the exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities could be gathered from the subsequent notification. The ratio of the above case is squarely applicable to the present case. Hence the amending Notification 35/99-C.E., dated 4-8-99 and 43/99 dated 24-12-99 would have retrospective effect. 9. As regards the contention of the Revenue that the Commissioner has ignored the fact that "mercerizing" is one of the processes which is not listed in the 12 specified processes and as one of the Respondents carried out mercerizing process also, they would not be entitled for the exemption, we observe that the show cause notice has not raised this issue. Hence even the Commissioner could not have decided against the Respondents as doing so would be going beyond the scope of the show cause notice. In these circumstances, we are not able to reverse his findings. Finally we affirm the findings of the Commissioner that the Respondents' units are covered under the relevant exemption notifications for the entire period of dispute. As the department had full knowledge of the activities of the Respondents in view of the earlier proceedings against them, we agree with the contention of the learned Advocate that there is no justification for invoki ..... 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