TMI Blog1984 (1) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... filed this appeal, dated 9-7-1979 against that order-in-appeal. 2. On 5-12-1983, the learned counsel for the Sundaram submitted before the Tribunal that one of the members of the Bench before which his appeal was to be heard had been a member of another Bench that had given a decision in a similar case that was unfavourable to his present appeal. He cited 1983 (1) ETR 307 as the decision he had in his mind, He, therefore, submitted that his appeal should be heard by another Bench in which that member would not sit. The learned counsel for the department resisted this demand. 3. The appellants counsel was told he should, if he so desired, move the President for suitable direction in the matter. The hearing was then adjourned to 16-1-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants and all the details in respect thereof were in the possession of the Central Excise authorities from the very beginning. The appellants stated that with the promulgation of Notification No. 208 of 1972, dated 14-10-1972 cushion compound used within the factory in the production of other rubber products falling under the same item became exempted from the whole of the duty of excise. This would show that cushion compound enjoyed immunity from excise duty if used in captive consumption. They also said that the Superintendent who called for details from the applicants on 13-12-1972 in respect of backing materials or cushion compound or cushion mixture had mistaken backing material for cushion compound. However all the details requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants from which it can be seen clearly that the backing material was a definite product in the process of making the finished product camelback/slab. He also submitted that the plea of the appellants that they had informed the central excise about this product is not correct. They were required not only to give the process of manufacture and technique of production etc. etc., but were also required specifically to declare to any excisable product that may have emerged during the process of production and to ask for a clarification or ruling or to apply for a licence therefor. None of these things was done and it is evident that the factory had not made a full and correct declaration about the products in manufacture and this caused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants, M/s. Sundaram Industries Pvt. Ltd. wrote a letter, dated 4-9-1973 asking for a personal hearing; that personal hearing was granted 4 years later on 21-7-1977. We can find no explanation of any kind for this extraordinary dereliction. We have also seen that the corrigendum to the show cause notice was issued on 7-9-1973, whereby, as per the correction, duty of Rs. 8,539.60 was demanded under Rule 9(2) read with Rule 10A for the period 1-4-1968 to 31-5-1968 and Rs. 415,060.92 for the period 1-6-1968 to 13-10-1972 under Rule 173Q read with Rule 10, 10A as the case may be . There can be little doubt that these events were set in motion by Notification 208 of 1972, dated 14-10-1972, which exempted cushion compound used captively in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the 10 long years that they were in control of the factory. We are satisfied that it was due to the Central Excise belief that the backing material was not excisable because it was being used in captive consumption that no action was taken to assess it and levy it to duty, and not because the factory had suppressed the fact of its production. 8. The attempt to use the unlimited demand period is clearly a cover up by the Central Excise of its own failure; and if the truth is to be told Rule 9(2) itself has been much misued as can be seen from this case. We cannot support the use of Rule 9(2) in a case like this one. It is practically impossible for the Central Excise not to know what was being done, what was being produced etc. etc. in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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