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2014 (6) TMI 919 - HC - Central ExciseDenial of concessional rate of duty - Notification No. 28/96, dated 11-9-1996 - Held that:- Impugned orders are based on either ignorance of the directives of the C.B.E. & C. and the Commissioner of Central Excise, Nagpur or without correctly interpreting the same. In that view of the matter, we are not inclined to accept the contention of the learned ASGI, insofar as the non-exercise of the jurisdiction on the ground of alternative remedy is concerned. For the same reason, we are not inclined to accept the contention of the learned ASGI that since the complete machinery is provided under the statute, we should throw away the petition after having entertained the petition for last 16 years. The contention of Mr. Mishra that if this is permitted every person will rush to this Court, is heard only to be rejected. The learned ASGI is himself aware of various petitions wherein he has appeared and which have been dismissed by the Benches to which either of us are party, on the ground of availability of alternative remedy. However, that has been done at the threshold. The same analogy cannot be applied to the petition which is pending before this Court for last 16 years. If a waste paper is used as a raw material and if such waste paper itself contains the conventional material, then the resultant product may contain the conventional material more than the permissible limit. As such the method that is adopted by the respondent-Authority would not truly depict as to whether the use of the material at the stage of preparation of pulp was within the permissible limit or not. No doubt that we do not possess any expertise in such matters. However, the Commissioner of Central Excise , Nagpur on the basis of the communication of the C.B.E. & C. has itself now clarified the entire procedure which should be gone into while considering as to whether the assessee is entitled to exemption or not. Communication of the C.B.E. & C. and the subsequent trade notice only clarify as to what is provided under the notification. The said trade notice or the communication do not have effect of either substituting or replacing as to what is provided under the notification. The said communication and the trade notice are only clarificatory in nature and provide for the manner in which the procedure has to be followed for determining as to whether an assessee is entitled to exemption or not. In any case though the period for which the show cause notices were issued to the petitioner, are prior to the communication of the C.B.E. & C. and the trade notice issued by the Commissioner and the impugned orders are passed much thereafter. The communication of the C.B.E. & C. is dated 24-9-1997 whereas the trade notice is dated 29-10-1997. The impugned orders are passed on 4-12-1997. The Assistant Commissioner of Central Excise who is undoubtedly an Authority inferior to the Commissioner of Central Excise and the C.B.E. & C. ought to have taken into consideration the said communication and the trade notice. In the light of the communication of the Central Board of Excise & Customs dated 24-9-1997 and the trade notice dated 29-10-1997 issued by the Customs & Central Excise, Nagpur. Insofar as the challenge to the show cause notice dated 2-11-1998 is concerned, we dismiss the petition and direct the petitioner to submit to the authority of the respondent No. 1. - Decided against assessee.
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