ASSOCIATED CEMENT COMPANIES LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) The main question of law in this writ petition relates to the proper construction of the third proviso to sub -section (2) of Sec. 36 of the Central Excises and Salt Act, 1944 as amended on 1 -7 -1978. The petitioner manufactures 'portland cement' and also 'pozzolana cement'.

(2.) The cement of all varieties is charged to excise duty under Item 23 of the Central Excise Tariff read with Sec. 3 of the Act. By Notification No. 89/76 -C.E. of 16th March, 1976 certain exemptions from payment of duty in respect of certain types of cement were granted as follows : -

(3.) The Superintendent of Central Excise M. O. R. Peddapalli by demand orders O.C. No. 859 dated 23 -10 -1976 and No. 96/77 dated 27 -8 -1977 called upon the petitioner to pay duty at Rs. 91/ - per metric tonne on 'pozzolana cement' manufactured by the petitioner under Tariff Item 23 read with Item No. 2 of the exemption notification. In the appeals preferred by the petitioner to the Appellate Collector, Central Excise the said demands were ordered to be withdrawn and the Superintendent of Central Excise was directed that even though the specific surface may be not less then 3500 Cm 2 all such cement should be assessed under Item No. 3 of the exemption notification at the rate of Rs. 82/ - per metric tonne only. Thereupon the two impugned notices were issued by the Central Government on 12th November, 1979 and 17th November, 1979 under Sec. 36(2) of the Act calling upon the petitioner to show cause why the orders of the Appellate Collector should not be reviewed and set aside and the demands made by the Superintendent should not be restored. These notices were issued after the expiry of six months but within the period of one year after the orders of the Appellate Collectors were passed. These notices have been challenged by the present writ petition as being ultra virus of the third proviso to Sec. 36(2) being barred by limitation there under.