9911796707
TMI Blog1998 (9) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... erned has been functioning since 1984. On the basis of a Circular No. SSI(I)30(102)/79, dated 25-10-1979 from the Ministry of Industry (Department of Industrial Development) to all the State Leather Corporations through the Under Secretary to that Department, the appellant was of the view and held a belief that all State Leather Corporations were to be treated at par with all State Industrial Corporations registered either with DGS & D or National Small Scale Industries Corporation (NSIC) under the Single Point Registration Scheme and will be eligible to all the concessions and facilities which are admissible to all such units. 1.3 On 29-9-1986 the unit as usual has sent 435 pairs of footwears in hand driven cart accompanied by a pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty denying the benefit of the aforesaid two notifications as mentioned above. He has also confiscated the goods again imposing redemption fine of Rs. 10,000/-. However, he has imposed a penalty of Rs. 30,000/- as against the penalty of Rs. 20,000/- imposed earlier by him. Hence this appeal before the Tribunal. 2.1 Learned Advocate, Shri J.P. Kaushik for the appellant has submitted that the impugned order is bad in law in the first instance inasmuch as the adjudicating authority has relied upon his own earlier order which stood duly set aside by the Tribunal and on the basis of which he has now passed the de novo order. He submits that in view of Tribunal's judgment in the case of Pankaj Dial Industries reported in 1997 (96) E.L.T. 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of the workers employed by the unit will be far less than 49 as stipulated in Notification No. 88/77-C.E. He has also submitted that the benefit of Notification 88/77-C.E. would be available to the appellants as long as one of the two conditions, namely, the number of workers of the quantum of Horse Power used in manufacture of footwear is satisfied. He, therefore, submits that since the condition of number of workers stands satisfied, as mentioned above, therefore, the benefit of Notification No. 88/77 should not be denied to the appellants. Although the learned advocate had made some plea regarding the quantum of Horse Power used in making a distinction between the Horse Power installed and the Horse Power used but we do not find much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of penalty does not arise inasmuch as the appellant had always been working under a bona fide belief that they are a small scale industry's unit as good as registered with the Directorate of Industries on the strength of the circular of the Ministry of Industry, mentioned supra. Therefore, no mala fides can be attributed to the appellants and the penalty of Rs. 30,000/- imposed by the adjudicating authority is not warranted in the facts and circumstances of this case. For the same reason, he submits that confiscation of the goods should not have been made in the instant case because of the bona fide belief of the appellants. As regards the demand, learned Advocate further submits that bulk of the demand will be barred by time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein cannot be extended to the duty concession under Central Excise law, as rightly held by the adjudicating authority. He submits that Notification No. 175/86 envisages registration with definite authorities; as mentioned in the said notification as also said registration of the unit under consideration was not available with the said authorities, the benefit of the notification cannot be extended. 2.4 Once the benefit of notification is not available to the appellants' unit, submits the learned JDR the plea of confiscation and penalty automatically will fail. On the question of limitation of demand, he submits that subsequent registration by the appellant w.e.f. 18-12-1986 clearly proves that the appellants were not entertaining any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Golden Press (supra). Therefore, if we exclude 34 persons the number of workers employed will be less than 49 and therefore, the appellants would be entitled to the benefit of Notification 88/77. Consequently, demand of duty for the period 6-6-1985 to 31-3-1986 is not sustainable. 3.2 As regards the plea of applicability of Notification 175/86-C.E., no doubt, the said notification stipulates the condition of registration with the authorities mentioned therein but we observe that the reliance placed by the learned Advocate on Ministry of Industry's circular dated 25-10-1979 is quite apposite and this plea cannot be lightly discarded. This circular emanates from the department of the Central Government. The notification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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