TMI Blog1997 (8) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 1-3-1975 to 14-7-1975. Appellants were also asked to show cause why effective rate of duty on the said Properzi rods should not be demanded since the benefit of the Notification No. 42/75 claimed by appellants was not applicable in their case as Notification No. 42/75 applied only to primary manufacturers and not to Appellants, who were secondary manufacturers. The show cause notice also alleged that the Appellants had failed to file a revised classification list from 1-3-1975 when the rate of duty had been revised. It was also alleged that they had not fulfilled the conditions laid down in the proviso to Notification No. 111/75 because of which the concession of duty claimed by them had ceased to be available to them. By Order-in-Original Asstt. Collector confirmed the demand rejecting the present Appellants plea of time bar. On merits he held that Notification No. 42/75 did not apply to them. In appeal Collector (Appeals) confirmed the Asstt. Collector s order on time bar by holding that the question of time bar did not arises as the original assessment was only a provisional assessment. He also confirmed the Asstt. Collector s order as regards demand for the period 1-3-1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants had requested for provisional assessment under Rule 9B which was rejected by the Superintendent on 26-5-1972. After this Appellants had further requested the Collector on 1-6-1972 for grant of provisional assessment under Rule 9B which was not accepted. On 12-6-1972 the Superintendent allowed `NIL assessment under Rule 9B and stayed the enforcement of the demand for the earlier consignment till the disposal of the Appeal by the Appellate Collector. On 7-9-1972 the Appellate Collector rejected the Appeal and on 22-9-1972 the Superintendent directed the Appellants to clear aluminium wire rods after payment of duty. Direction was also given for compliance of demand in respect of aluminium wire rods already cleared at Nil rate of duty under Rule 9B. Further, on 27-9-1972 the Collector had ordered that the goods cannot be allowed to be assessed provisionally as provided under Rule 9B in view of the Order in Appeal passed of the Collector (Appeals). The Appellants had again filed Writ Petition before the Delhi High Court on 4-10-1972 seeking the quashing of earlier orders of the Excise Authorities. However, the High Court by order dated 5-10-1972 granted only stay of recovery proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he setting aside of the impugned order. 10. Appearing for the Department Shri M. Jayaraman, ld. JDR referred to the order of the Collector (Appeals) and stated that the Collector (Appeals) has given detailed findings on each of the points raised by the present Appellants. On the question of time bar, the relevant Rule that was in force during the period of demand, namely 1-3-1975 to 14-7-1975 was Rule 10 of the Central Excise Rules and under Rule 10, limitation period for raising the demand expired on 14-7-1976. It was contended by the appellants that since the Show Cause Notice did not refer to any specific provision under which demand was proposed to be raised, the demand could not be sustained even otherwise as the demand could not be considered as provisional assessment. The Departmental Representative stated that according to the Section 11A where the duty of Excise was provisionally assessed, the date of adjustment of duty after the final assessment should be the relevant date for calculation of limitation period. However, for purposes of invoking Section 11A, it was essential that the provisional assessment should have been on account of the dispute in question. He relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 117/75, categorically stated that the exemption under the said Notification would apply only in respect of electrical grade aluminium required to be supplied by the Central Government to be distributed in accordance with the Aluminium (Control) Order, and Paragraph 4(1) of the Order provided that the Central Government might issue directions to any producer to supply aluminium to different agencies subject to certain conditions and since a producer under the Order is a person registered under the IDR Act who produces aluminium rod from Bauxite/Alumina, a producer to come within the definition of `producer under the said Order has to be primary producer of aluminium and not a manufacturer of aluminium products from primary aluminium produced by the first producer. The appellants had not been able to show that they were primary producers of aluminium as contemplated in the Aluminium (Control) Order. Further, even the allocation order dated 12-5-1975 which has been relied upon by the appellants by which certain electrical grade aluminium was allocated to the appellants for manufacture of electrical conductors did not show that the aluminium rods manufactured by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1970 had held that the appellants who are manufacturers of secondary aluminium would not come whether that definition and, therefore, not eligible for the benefit. However, we observe that appellants are covered within the definition of `manufacturers under Para 2(d) of the said Order and by Para 5A thereof the Government is empowered to regulate production, supply and distribution of aluminium. Further, Aluminium (Control) Order also applies to producers, manufacturers and dealers insofar as production, supply, distribution etc. of aluminium is concerned. It is also seen that Notification No. 42/75 clearly mentions `manufacturers . Therefore, we find that the finding of the lower authorities to the effect that Notification No. 42/75 applies only to `producers of primary aluminium and not to `manufacturers of aluminium is not correct. Further, we also find from the record (pages 109 to 119 of the Appellants Paper Book) that the appellants had been allotted aluminium of E.C. grade by DGTD for manufacture of conductors for transmission lines to be supplied to various State Electricity Boards. There can therefore be no dispute on the question whether the appellants were manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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