COLLECTOR OF CENTRAL EXCISE Vs. DHAR CEMENTS LTD.

JUDGEMENT

(1.) THE respondents were engaged in the manufacture of cement, falling under Sub -heading 2502.20 of the Schedule to the Central Excise Tariff Act, 1985, in their mini -plant of licensed capacity of 200 TPD (tonnes per day). They filed classification list No. 1/89 -90 effective from 27 -4 -1989 claiming therein the benefit of concessional duty under Notification No. 23/89 -C.E., dated 1 -3 -1989 as amended by Notification No. 123/89 -CE., dated 27 -4 -1989. The classification list was approved by the jurisdictional Assistant Collector provisionally and the party was asked to produce the licensed capacity certificate as required under Notification 23/89 -G.E. as amended. The respondents could not produce the certificate at that time. Department, therefore, by show cause notice dated 16 -7 -1990 proposed to deny the benefit of concessional duty for the period 1 -5 -1989 to 31 -12 -1989 and recover the differential duty for the said period under Section 11A of the Central Excises and Salt Act (CESA), 1944. In their reply to the show cause notice, the respondents submitted that they had already produced the required certificate. They also cited an earlier order of the jurisdictional Collector of Central Excise on the same issue, which was in their favour, and contended that the said order was binding on the Assistant Collector. They also raised the plea of time -bar against the show cause notice. The Assistant Collector, who adjudicated the dispute, confirmed the demand of differential duty to the extent of Rs. 21,55,645.80 on the clearances of cement for the period, 1 -5 -1989 to 31 -8 -1989. This order of adjudication was set aside by the Collector (Appeals) in the appeal filed by the party against the said order. Hence the Revenue's appeal now before the Tribunal.

(2.) HEARD both sides. Shri Ravinder Babu, JDR, reiterated the findings recorded by the adjudicating authority and prayed for setting aside the order of the lower appellate authority. Shri A. Upadhyay, Advocate who argued for the respondents, submitted that the Assistant Collector had gone beyond the scope of the show cause notice by relying on the respondents' letter to the P.W.D. Superintending Engineer (National Highways) as well as the affidavit alleged to have had been sworn by them before the Superintending Engineer, both of which had not been relied on in the show cause notice. Ld. advocate added that the respondents had not at all filed any affidavit with the Superintending Engineer. He defended the order of the Collector (Appeals) by relying on case law on interpretation of fiscal statutes and Exemption Notifications. Counsel also submitted that the demand of duty as raised in the show cause notice dated 16 -7 -1990 for the period May -August 1989 was time -barred. He urged us to reject the appeal.

(3.) THE issue before us is whether the benefit of Notification No. 23/89 -C.E., dated 1 -3 -1989 as amended was available to the respondents for the period 1 -5 -1989 - 31 -8 -1989.