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TMI Blog1980 (11) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay Soap Factory in respect of this duty on soap. 2. It is the petitioners' case that by a notice dated 23rd May, 1973, issued by the Superintendent of Central Excise, the petitioners were informed that they had become liable to pay the duty on these goods in view of Notification No. 33/63, as amended by Notification No. 181/71, dated 9-10-1971. By the said notice the petitioners were also called upon to show cause why duty should not be recovered from them. Thereupon the petitioners by their statement dated 24th July, 1973 informed the Assistant Collector of Central Excise that they had wrongly classified the goods under item 13. That as a matter of fact, the tallow was not fit for human consumption. That this being so, the question of application of proviso 2 of the said Notification bearing No. 33/63, as amended by Notification No. 181/71, dated 9-10-1971, to the petitioners' case did not arise and, in any event, the petitioners were not liable to pay duty on these goods. By an order dated 17th December, 1975 the Assistant Collector of Central Excise negatived the petitioners' contentions and went on to hold that in view of the second proviso of the said Notifications, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods produced by the manufacturer are exempted from the whole of the duty of excitse leviable thereon or are chargeable to nil rate of duty ... ... ... ... .. ... ... ... .. ... ... ... 7. However, by Notification No. 33/63, dated 1st March, 1963, the petitioners could claim exemption from the payment of duty provided they separately fell within the said Notification. The relevant portion of the said Notification reads as follows : "(6) Under Government of India, Ministry of Finance (Department of Revenue), Notification No. 33/63-Central Excises, dated the 1st March, 1963. as subsequently amended by Notification No. 50/63-Central Excises, dated the 7th March, 1963, No. 14/64-Central Excises, dated the 15th February, 1964, No. 110/65-Central Excises, dated the 16th July, 1965 and No. 181/71-Central Excises, dated the 9th October, 1971, the following vegetable non-essential oils falling under. this Item are exempt from the payment of the whole of the excise duty leviable thereon : (a) xxx xxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f excise leviable thereon or are chargeable to nil rate of duty. Explanation - For the purpose of this notification processed vegetable non-essential oil means a vegetable non-essential oil which has undergone subsequent to its extraction any one or more of the following processes, namely: (i) Treatment with an alkali or acid (ii) Bleaching (iii) Deodorization." It is in the light of this that the Department seems to have issued a show cause notice dated the 23rd May, 1973 contending therein that the petitioners fell within the second proviso and were liable to pay duty on the V.N. E. oil. In reply to this show cause notice, the petitioners took up the position that (a) the vegetable tallow was an intermediary product, (b) in any event, it was not a finished product, (c) in any event, it was not fit for human consumption inasmuch as this oil was hardened so that its melting point was 43C., whilst if it was for human consumption, its melting point ought to have been 330 to 370C. The petitioners urged that in view of this the tallow did not fall within item No. 13 and that the second proviso has no application and no duty could be levied under the second proviso. 10. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Item 13 and there would be no question of the Department invoking the second proviso and claiming duty on the said product. In view of this, the ratio laid down in the said judgment would not be of any application whatsoever. 14. The respondents contended that at one stage the petitioners had classified this tallow as falling under Item 13, and proceeding on this footing had claimed the benefit of Notification No. 8(3)56, dated 14th January, 1956. That it was not open to the petitioners now to turn round and say that this tallow was not covered by Item 13. The petitioners were estopped from doing so. Now, in this context it may be stated that it is well settled law that in the case of taxation there can be no question of estoppel and in view of this the contention of the respondents must fail. 15. Mr. Manjrekar, the learned Counsel for the respondents, then argued that, in any event, V.N.E. oil fell under Item No. 12 and since they did not convert this oil into soap in their factory but at a place other than where this oil was manufactured, the petitioners were not entitled to an exemption under the Notification No. 33 of 1963 and the duty was clearly payable in respect thereof. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to introduce a new ground by coming to the conclusion that the manufacturers were different. This was never the case of the Department at any stage ever since the enquiry took place. If the petitioners were sought to be made liable on such a ground, then the proper course for the Department would have been either to furnish additional grounds to the petitioners and call upon them to meet the same, or, in any event, afford them an opportunity to meet such a case. It would not be open to the Department to go on changing their rounds from stage to stage with a view to fix the liability on an assessee without giving him an opportunity to meet the ground on which he is sought to be made liable. In view of this, Mr. Manjrekar's contention must now be negatived. 18. As earlier stated one of the grounds canvassed by the respondents "It is in the direct use of the vegetable non-essential oil in items 13, l4. and 15 that exemption is granted." That this being so, the petitioners were not entitled to any exemption. Now, in so far as this point is concerned, Mr. Taraporwala, the learned counsel for the petitioners, pointed out that this point had been taken, for the first time by the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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