TMI Blog1987 (6) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... e by order-in-appeal No. 591/80, dated 8-9-1980 passed by the Central Board of Excise and Customs should not be set aside, restoring the order No. C.Ex/Review/1/80, dated 21.2.1980 passed by the Collector of Central Excise, Nagpur, denying them the benefit of Central Excise notification No. 265/77, dated 3-8-1977. 2. The respondent is a manufacturer of glassware falling under Item No. 23A of the First Schedule to the Central Excises and Salt Act, 1944 ( CET for short). Notification No. 265/77, dated 3-8-1977 issued by the Central Government under Central Excise Rule 8(1) exempted, glass the glassware, falling under Item No. 23A, CET and manufactured by a unit by mouth blowing or hand or foot pressing, from the excise duty leviable thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist No. 86/77 effective from 3-8-1977 should not be modified as mentioned in the notice. In reply, the respondent submitted that, as required by notification No. 265/77, the process of manufacture was mouth blowing/manual processing. After the glass article is given a shape by mouth blowing, it was taken to a second mould. Here, compressed air was let in by release of a lever by hand. The compressed air served to expand the hollow of the glass article and bring it to the size and shape of the mould. The release of the compressed air into the mould was not by a mechanical device but by a hand-operated lever. It was further contended that the respondent s unit was not a semi-automatic unit as defined in notification No. 266/77, dated 3.8.1977 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not correct, legal and proper was set out in para 2 of the show cause notice, dated 3-3-1981. It reads as follows :- 2. It has come to the notice of the Government that in the unit of M/s. S. G. Glass Works Pvt. Ltd., Molten Glass is removed . from the tank furnace manually with the help of rods and is placed in the first mould which is operated by hand pressing machine and the semi-shaped article is removed to a second mould which is connected with a compressor by means of a pipe and air from the compressor is blown in this mould which is pressed by hand press simultaneously to get the final article, i.e., Glass Jar. This use of compressed air falls within the ambit of paragraph 2 of Notification No. 265/77, dated 3.8.1977 because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s appellate powers and passed the impugned order-in-appeal. The remedy against the Collector s order was only a revision under Section 36 of the Act. In response to a query from the Bench, it was submitted by Shri Sundera Rajan that the mention of Rule 10 in the show cause notice, dated 21-8-1978 was incorrect since the Collector had no power under this rule but this would not make any difference to the order since the Collector had powers under Section 35A(2) and non-mention of this provision was not fatal to the order. 10. In reply, the counsel for the respondents submitted that the show cause notice, dated 21-8-1978 was issued by the A.C. under Rule 10 in terms of which he alone could adjudicate. If it was meant to be a review notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.Ex/Revision/1/1980", despite the title Order-in-Original" given to the Collector s order. This inference also gains support from the fact that the Collector has passed another purported Order-in-Original (numbered as 2/Glass-Review/80), dated 5-1-1981 though it was, in fact, an order under Section 35A(2), as seen from the Tribunal s order No. D.444/85-D, dated 6-12-1985 in Excise Appeal No. 1700/81-D filed by the same assessee who is the present respondent. There is yet another piece of evidence. In his letter dated, 28-1-1981 to the Additional Secretary to the Government proposing review under Section 36(2) of the Board s order dated 8-9-1980 (copy available on record), the Collector says that the A.C. issued a notice for revision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is on record, has been issued by the Assistant Collector at the instance of the Collector, though the notice was directed to show cause to the Collector. The notice no doubt cites Rule 10, but, if the Collector was acting under Section 35A(2), the erroneous citation of the rule would not have the effect of vitiating the proceedings. The second show cause notice proposing revision of the classification list approved by the A.C. was also issued by the A.C. as seen from para 5 of the Collector s letter, dated 28-1-1981 to the Additional Secretary to the Government of India. There is nothing to show whether or not this notice was also issued at the instance of the Collector since it was the Collector, and the Collector alone, who under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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