TMI Blog1995 (12) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings by setting aside the orders passed by the Assistant Collector confirming the demand and imposing penalties and directed the Assistant Collector to put up the papers to the jurisdictional Collector for such action as deemed fit by him. The aforesaid order was passed holding the view that the show cause notices allege that the Respondents have wilfully availed of wrong notional higher credit and the Assistant Collector has imposed penalties on the Respondents and hence proviso to Section 11A of the Act is attracted, wherein suppression or wilful mis-statement is alleged in the notice and the competent authority to adjudicate the case is the jurisdictional Collector. The jurisdictional Collector has authorised to file the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs initiated by the Assistant Collector on the basis of the show cause notice alleging wilful availment of wrong notional higher credit have been rightly vacated. He also refers to the findings given by the Assistant Collector indicating that the Respondents are reputed concern manufacturing drugs and they know that bulk drugs attract effective rate of duty at 5%, irrespective of Small Scale exemption and hence they had wrongly availed higher notional credit knowing fully well that they are not entitled to same. Hence, viewed in the context of the findings and the allegations made in the show cause notice, the ratio of the judgment of the Tribunal in the case of Pratap Rajasthan Copper Foils Laminates Ltd. would be applicable. He also poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 30 of CETA 1985, have contravened the provisions of Notification No. 31/88, dated 1-3-1988, in as much as they have wilfully availed of wrong notional higher credit amounting to Rs. 10,240/- (Rupees Ten thousand two hundred forty only) on 14-10-1989 on the inputs procured by them viz. Benzyl Benseete I.P. which are bulk drugs attracting effecting rate of duty @ 5$ adv details of which are set out in Annexure A appended hereto. From the above the only objectional word used in the aforesaid para wilfully availed of wrong notional higher credit. There is no allegation of wilful misstatement. There is no allegation of suppression. There is no allegation of fraud. As per the ingredients contained in the proviso to Section 11A, the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approvingly quoting the decision of Pratap Rajasthan Copper Foils Laminates Ltd. has been made. However, in the case of the Supreme Court decision in M/s. Safari Industries v. CCE, Baroda, [1993 (64) E.L.T. A197] on an appeal filed against the order of the Tribunal bearing No. 22/89D, dated 17-1-1989 the Supreme Court ordered as below : The show cause notice was issued on 22-1-1987 for the period covering 5-7-1986 to 10-9-1986. If the period of 6 months is counted from backwards, it goes to 22-7-1986. Therefore, the show cause notice may be treated as valid under Section 11A for the period 22-7-1986 to 10-9-1986 and the judgment of the Tribunal may be set aside, and fresh order may be passed by the appropriate officer of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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