TMI Blog1986 (7) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 35P(2) of the Central Excises and Salt Act, 1944, to be disposed of as if it were an appeal filed before the Tribunal. 2. The facts of the case material and relevant for our purpose may be briefly stated. M/s. Bata India Limited (hereinafter, for brevity s sake, Bata ) had manufactured during the period 1975-78, 70 shoe-making machines classifiable and chargeable to excise duty, under item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 (the CET and the Act respectively). Some of these machines were cleared from the factory for sale to other parties and some were used within the appellant s factory for shoe-making. They were cleared, or used, in the manner aforesaid, without payment of the excise dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes as they had done with reference to the Superintendent s notice, on 12-8-1980, the Collector issued a corrigendum to the show cause notice clarifying the amount of duty was amended to Rs. 1,65,834.22 at 8% ad valorem. Bata replied on 3-10-1980 contending that duty could be levied only at the rate prevalent on the date of manufacture and/or clearance and not at a rate in force on the date of payment of duty. They pleaded that the duty already paid by them should be deemed to be the correct amount of duty payable. In due course, the Collector passed an order on 3-10-1980, holding the charges against Bata as established. He imposed a penalty of Rs. 1,25,000/- on Bata and ordered that they should pay duty of Rs. 1,65,834.72 minus the duty al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of duty and after compliance with the formalities under the Rules. If the Board s view was correct, the term removal could not be used for removal on payment of duty (it would be clearance , as per the Board s view). However, several sections of the Act and the Rules [e.g. Section 11A(3)(ii), 11B explanation B, Rules 9(1), 9A(1) 2nd proviso, 14A (proviso a), 14B(i), 49(1), 53(1 )(a)] used the term removal for clearance on payment of duty. There was, therefore, no distinction between cleared and removed . If this be so, Rule 9A(1) (ii) clearly applied to the present case. The amendment to Rule 9A by the notification No.101/81 was only by way of clarification. Otherwise, it would conflict with the scheme of the Act and the Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by notification No. 101/81. 8. In re : Bharat Metal Industries, Batala, 1981 E.L.T. 503 the Board (as appellate authority) had held that when the dates of clearances of the goods was ascertained from the books of accounts maintained by the appellants, duty was chargeable in terms of Rule 9A(1)(ii) and not Rule 9A(5). 9. In re : Mining Allied Machinery Corporation, Durgapur, 1982-ELT-517, the Central Government, acting as revision authority, held that it was not the intention (of the rule) to invoke Rule 9A(5) when the date of removal of the goods from the factory was known to the department. The absence of the word on payment of duty in clause (ii) was significant. Clause (ii) dealt with clearances from the factory or warehouse, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 (21) E.L.T. 618. In this case, the allegation was that the tobacco warehouse licence had illicitly removed non-duty paid tobacco from his bonded warehouse in contravention of Rule 151(c) and (d). Duty on the resultant shortage was demanded under rule 160. We find that the Bench noted that according to the view taken by the highest authorities in the department on the advice of the Ministry of Law, Rule 9A(5) was applicable to cases of this type. The Bench further noted that neither side was able to say as to why rule 9A(5) should not apply to cases of such illicit removals. No authorities were cited before the Bench as has been done before us. It was in these circumstances that the Bench approved the view taken by the Board that rule 9A(5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply during the period in dispute. We, therefore, set aside this part of the Board s order and restore the demand for duty to that applicable in terms of Rule 9A(1)(ii). 15. As regards penalty, it is apparent from the record that the goods had been cleared without payment of duty. It was only during audit check that it was detected that Bata was manufacturing the machines and using them within the factory without payment of duty. It appeared that a spot memo was issued on 28-12-1976 to which Bata sent a reply on 18-4-77. The Range Superintendent called for full particulars of such machines on 22-7-1978 and it was only after a series of reminders that the full data was forwarded by Bata who also paid the duty. These findings of the Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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