SURI INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE, BANGALORE

JUDGEMENT

(1.) THE appellants were visited by Headquarters, Preventive officers and consequent to the search, a show cause notice, dated 26 -6 -1990 demanding the duty of Rs. 93,800/ - under Rule 9(2) of the Central Excise Rules read with provisions of Section 11A(1) of the Central Excise Act, 1944 was issued and it was also alleged why the amount should not be adjusted from the amounts of Rs. 1 lakh as BED and Rs. 1800/ - as SED paid by them during the course of investigation on 15 -5 -1989 and 6 -8 -1989 and a penalty not be imposed on them under Rule 173Q(1) in the contravention of Rules 9(2), 52A, 173F, 173G and 226 of Central Excise Rules. The Collector vide his order, dated 16 -11 -1993 on a contest made of this show cause notice, found as follows - Another question before me is whether the said concession can be extended to the party without claiming it in the classification list. It is seen from the classification list filed by the party that the said concession under Notification 175/86 were not claimed by them. The question of dutiability of body built vehicles was a point of dispute during the relevant time and probably at that time as expressed by M/s. Suri Industries in their reply, the question of excisability of vehicular body built on duty paid chassis was not free from doubt even from the Departments angle. This being so, the Department cannot take a stand that the party has not claimed and hence the concession cannot be extended. According to the principles of equity, even if it is not claimed in the classification list, M/s. Suri Industries are rightly eligible for availing the exemption as discussed above. As held by the following judicial pronouncements (1) 1990 (48) E.L.T. 569 (T), (2) 1991 (56) E.L.T. 470 (T), (3) 1991 (53) E.L.T. 347 (T), (4) 1990 (49) E.L.T. 190 (Bom.), (5) 1989 (41) E.L.T. 613 (T), the concession/exemption cannot be claimed in the classification list. Hence I extend the benefit of exemption under Notification 175/86 dated 1 -3 -1986 to M/s. Suri Industries. The party has paid certain duty amount as mentioned in paragraph 1 of this order. Since no duty was payable, they are entitled for a refund, subject to satisfying the provisions of Section 11B of Central Excises & Salt Act, 1944. It has not been argued before us that this order is not final. Revenue has not filed any challenge of this order.

(2.) CONSEQUENTLY , the appellants filed a refund application for an amount of Rs. 1,01,800/ - vide refund claim dated 15 -12 -1993. The Assistant Commissioner issued a show cause notice to them to show cause as to why : -

(3.) THE Commissioner (Appeals) vide his order now impugned found -