TMI Blog2001 (1) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... under : 3. The appellants are engaged in the manufacture of pan masala classifiable under T.I. 68 of the erstwhile Tariff. They initially disputed the excisability of their product pan masala by filing writ petition in the Honourable Allahabad High Court but did not succeed as the High Court vide order dated 27-9-1995 dismissed the same holding that the product pan masala was not food or food preparation article under Notification No. 55/75-C.E. dated 1-3-1975 as amended from time to time. The factory of the appellants was firstly visited by the official of the Excise Department on 6-10-1980 and pan masala valued at Rs. 1,73,846.60 was seized and they were issued show cause notice dated 3-4-81 for payment of duty on the value of the clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile tariff in/or in relation to the manufacture of which no process was ordinarily carried on with the aid of power, as they intimated to the Excise Department vide letter dated 14-11-1980 that they were not using power at any stage in the manufacture or packing of pan masala and even in their declarations filed on 1-12-1980 and other on 27-5-1981 they mentioned so and those were duly acknowledged by the Excise Department. 6. The Commissioner, who adjudicated the matter, did not accept the version of the appellants and confirmed the duty demand as indicated in the above referred show cause notices on them and imposed penalty of Rs. 50,00,000/- also through the impugned order. 7. The appellants have come up in appeal before this Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Notification No. 179/77-C.E., dated 18-6-1977 as after 17-11-1980 they did not use power at any stage in the manufacture or packing of pan masala. 10. However so far as demand for the period 1-4-1980 to 16-11-1980 is concerned, the same on the face of it cannot be said to be time barred as even fairly conceded by the Counsel at the Bar because show cause notice dated 3-4-1981 for this period was issued within time. 12. Regarding the demand of duty from 17-11-1980 to 31-3-1985 on the clearance of pan masala, raised by the revenue, from the appellants, the Counsel has raised two-fold contention. Firstly, it is time barred. Secondly, the appellants during this period were entitled to the benefit of the Notification No. 179/77-C.E., dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed injunction against the Excise Department for interfering in the working of their factory. But no interim order staying the collection of the duty or issuance of show cause notice for recovery of the duty amount from the appellants, was ever passed by the Honourable High Court. The interim order dated 24-11-1980 passed by the Honourable High Court was only regarding the release of the seized goods and that too on furnishing of the bond/guarantee by the appellants, undertaking to pay the duty in case their writ petition was ultimately dismissed. No injunction was also issued by the Honourable High Court restraining the Excise Department from intermeddling with the manufacture of the pan masala by the appellants. Mere pendency of the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period 17-11-1980 onwards to 31-3-1985 within the specified period under Section 11A of the Act. But having not so done, the demand must be held to be time barred. 18. Apart from this, even on merits, there is overwhelming evidence to prove the entitlement of the appellants, to the benefit of Notification No. 179/77-C.E., dated 18-6-1977. They vide letter dated 14-11-1980 gave intimation to the Excise Department that they would not be using any power at any stage in the manufacture of pan masala. The acknowledgement of this letter had not been denied by the department. Again in the declarations filed by them on 1-12-1980 and 27-5-1981 they again specifically mentioned they were manufacturing and packing the pan masala without the aid of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is nothing on the record that any official of the Excise Department ever visited the factory premises of the appellants after receipt of that letter and found that they were manufacturing their product pan masala with the aid of power and that the intimation given by them to the contrary was false. The correctness of their declarations referred to above, wherein they specified that they were manufacturing the product without the aid of power, was also not questioned by the department at any time. The Commissioner had wrongly ignored all these facts while disallowing the benefit of the abovesaid notification to them, on the strength of the statement of Raja Ram Shukla, Managing Director of the appellants, dated 6-10-1980 wherein he on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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