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TMI Blog1987 (6) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... of Extra Hard Oil, which the Collector (Appeals) called processed VNE Oil being used in the manufacture of Extra Hard, Hydrogenated Oil in a continuous integrated process. 2.Four Show Cause Notices demanding duty as detailed below were served on the appellants :- Date of Show Cause Notice Period covered by the Show Cause Notice Amount of duty demanded 1. 12-08-1975 1-04-1973 to 31-10-1974 Rs. 37,238.00 2. 30-09-1975 1-10-1974 to 31-08-1975 Rs. 30,150.00 3. 21-04-1976 1-09-1975 to 31-03-1976 Rs. 19,465.00 4. 06-10-1980 1-04-1976 to 31-3-1980 Rs. 89,946.55 The first three Show Cause Notices alleged that Extra Hard Oil fell under Item 12 of the Tariff whereas the appellant had cleared this oil under Item 13. The last S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his, he submitted was wholly illegal. For this submission, he relied on a decision of the Delhi High Court in Bharat Commerce of Industries Ltd. v. Union of India and Others 1979 E.L.T. (J527). In this decision, it was held that if the levy and assessment of goods under one particular Tariff Item is held to be illegal, the department cannot refuse to refund the amount on the ground that duty could have been levied under any other Tariff Item because on that basis, the department has to issue an appropriate demand within the time limit of Rule 10 (as it then stood) and the decision of the Tribunal in the case of Asapcs (India) Pvt. Ltd. v. Collector of Central Excise, Calcutta - 1984(18) E.L.T. 3 (Tribunal). Assailing the finding of the Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment only created a fiction otherwise at all material times, later the better principle i.e. collecting duty at final stage was being observed and followed and at the final stage, the appellants were availing of exemption in respect of Extra Hard Oil which was treated as falling under Tariff Item 12 of the Central Excise Tariff. In this connection, he referred to a decision of Gujarat High Court in the case of Vallabh Glass Works Co. Ltd. v. Union of India and Others - 1980 E.L.T. 437. 4. On these grounds he urged that the demand of duty confirmed against the appellants by the lower authorities was not at all justified and deserved to be set aside. He submitted that the same should be set aside. 5. Smt. J.K. Chander for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Item 12, the last decision on the point being a five Member Bench decision in Tata Oil Mills Co. Ltd. case - 1986 (24) E.L.T. 290 (Tribunal). In view of this decision, the premise on which the Show Cause Notices were issued against the appellants stand on sound legal foundation. The lower authorities may have wrongly confirmed the demand relating to these Show Cause Notices using the Show Cause Notices in respect of processed oil at an intermediate stage in an integrated and continuous process. But that would not mean that when the matter comes up before the Tribunal and the legal position has become clearer, it should decide the legality or otherwise of the demand on the same premise as done by the lower authorities. The demand could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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