TMI Blog1989 (3) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... From January 1977 it availed of exemption from duty on the ground that the total number of workers employed by it was less than 50. Since the basis .of exemption underwent a change in Notification 176/77-C.E., dated 18-6-1977 to the aggregate clearances of a factory during the preceding financial year, the company submitted an application to the jurisdictional Assistant Collector of Central Excise claiming exemption from duty for its product under the said notification. Declaration was made to the effect that since their clearances during the preceding financial year 1976-77 did not exceed Rs. 30 lakhs and that the value of its capital investment on plant and machinery did not exceed Rs. 10 lakhs, they were entitled to the exemption under Notification No. 176/77-C.E. The Assistant Collector granted exemption under his letter dated 14-7-1978. In addition another application was made by the company and its L-4 licence was also cancelled on 21-12-1977. 1.3. As a result of the scrutiny of the company invoices, the officers observed that the invoice value of the goods removed by the appellants from their factory during the financial year 1976-77 was in excess of Rs. 30 lakhs. This scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he material before the Collector was totally different from that available with the Assistant Collector. The data before the Assistant Collector was on the basis of a certificate given by a Chartered Accountant whereas the data before the Collector was on the basis of appellant company s own R.T. 12 returns and sale invoices. In these circumstances, there could be no objection to the reopening of the matter by the Collector. Besides, he submits that proceedings under Section 11A or 11B can be re-opened without challenging classification list and price list as has been held by Calcutta High Court in the case of ITC Company Ltd., reported in 1988 (34) E.L.T. 473 Cal. - Paras 18 and 29. He also relies on Supreme Court s judgment in the case of Elson Machine Pvt. Ltd. [1988 (38) E.L.T. 571 (S.C.)]. Hon ble Supreme Court in that case repelled a submission on behalf of the assessee that the classification list having been approved earlier, the excise authority was estopped from taking a different view. The Supreme Court observed that plainly there could be no estoppel against the law. The claim raised before the Supreme Court was based on the legal effect of a provision of law. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns on which the department bases its case was also available with the department. They could not be said to have been concealed by the assessee. The certificate of the Chartered Accountant given to the Assistant Collector in the proceedings before that officer was also based on the sale invoices. If the Assistant Collector had any doubt about the certificate submitted by the Chartered Accountant, he could make his enquiry, consult the R.T. 12 returns already submitted by the appellants and come to his own conclusion. In these circumstances, there is no justification whatsoever for invoking the larger period of 5 years in demand of duty. Learned DR, on the other hand, urges that the material before the Collector is different from what was before the Assistant Collector of Central Excise since the declaration given by the appellants before the Assistant Collector was wrong, larger period of five years has been rightly invoked by the Collector. On a careful consideration of the pleas advanced on both sides we are inclined to agree with the appellants learned Advocate. No doubt, the material before the Collector is different; nevertheless whatever material is there before the Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the appellant company is also not correct. The notification is applicable only in respect of the goods manufactured by the appellant company. The excise duty is also leviable only on the goods manufactured by that company. It is not duty on the trade activity of the company. Accordingly, the value of such goods has to be excluded from computation of the value of aggregate clearances and the benefit of the trade discount has also to be extended to the appellant company. We do not know whether by giving relief on these two counts the appellants value of total clearances come down below the exempted limit of Rs. 30 lakhs or not. Accordingly, the matter is remanded for determining the clearances of the appellant in the light of above findings. (5) Next point raised by the learned Advocate for the appellants is that there was no justification for seizure of the goods and confiscation thereof inasmuch as the appellants were working under exemption from licensing control on the authority of the department as mentioned earlier. The seizure has been made in July 1978 i.e. during the financial year 1977-78. These could not be the goods of the period 1976-77 for which the allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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