COLLECTOR OF CENTRAL EXCISE Vs. NEW SHORROCK MILLS

JUDGEMENT

(1.) THE Assistant Collector (Technical) of the office of the Collector of Central Excise Baroda has filed this appeal under Section 35B of the Central Excises and Salt Act, 1944, against the order No. V -2(19)1172/82 dated 22 -6 -1982 of the Appellate Collector of Central Excise, Bombay. The Collector of Central Excise of Baroda has authorised the Assistant Collector concerned to file this appeal. The respondent in the appeal M/s. New Shorrock Mills, Nadiad have filed a cross objection in this case also. Therefore, both the appeals and cross -objections are being considered and decided simultaneously.

(2.) THE main point taken up in the appeal by the Assistant Collector of Central Excise is that Notification No. 7/78 dated 17 -1 -1978 which added Explanation III to Notification No. 226/77, dated 15 -7 -1977 should have the effect from the date of the issue and not retrospectively. The effect of the Notification No. 7/78, dated 17 -1 -1978 was that it permitted the department to calculate the average count of yarn in the cotton fabrics were yarns of different counts had been used as warp and weft in the manufacture of the fabrics. The Appellate Collector of Central Excise, Bombay while allowing the appeals of the respondents had held that this Notification No. 7/78, dated 17 -1 -1978 was clarificatory in nature and therefore the past cases should also be governed by the same. The reasons for the Appellate Collector in making the aforesaid observation was that this notification added an explanation to Notification No. 226/77, dated 15 -7 -1977. The Appellate Collector inter alia, therefore, decided that the provisions of Notification No. 7/78, dated 17 -1 -1978 were also available in determining the average count of such fabrics manufactured earlier. This finding has not been acceptable to the Collector of Central Excise, Baroda and therefore he has authorised Assistant Collector to file the appeal. Therefore, the short point to decide in the appeal is whether the Notification No. 7/78, dated 17 -1 -1978 has retrospective effect or not.

(3.) THE departmental representative on behalf of the appellants has argued that the notification does not have retrospective effect and therefore the order of the Appellate Collector of Central Excise is wrong and that it should be set aside.