TMI Blog1997 (9) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice dated February 16, 1988 is quashed. - 12873 of 1996 - - - Dated:- 12-9-1997 - S.C. Agrawal and G.T. Nanavati, JJ. [Judgment per : S.C. Agrawal, J.]. - This appeal is directed against the judgment of the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as `the Tribunal') dated July 2, 1976 in Appeal No. E/SB/1395/91/MAS. The appellant, Kuil Fireworks Industries, manufactures fireworks which fall under Heading 3604.10 of the Central Excise Tariff. By Notification No. 167/86, dated March 1, 1986 exemption from excise duty was granted in respect of various goods including goods falling under Heading 3604.10 provided that no process in or in relation to the manufacture of the said goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods detained on September 2, 1987 valued at Rs. 39,83,698.50 on the ground that the said goods were cleared after September 1, 1987 when the exemption [from] duty was not available. The appellant submitted their reply to the said show cause notice wherein it was submitted that the goods were detained by detention order dated September 2, 1987 by the department and could be cleared only in pursuance of the interim order dated September 29, 1987 passed by the High Court and that no duty was payable in respect of the said goods. The Assistant Collector of Central Excise by order dated December 18, 1990 confirmed the demand of duty of Rs. 5,97,555/- made in the show cause notice dated February 16, 1987 in view of the decision of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Flour Mills Company (supra) and Collector of Central Excise, Hyderabad Ors. v. Vazir Sultan Tobacco Co. Ltd., Hyderabad Ors. - 1996 (83) E.L.T. 3 (S.C.) = 1996 (3) SCC 434, wherein it has been laid down that the rate of duty applicable will be the one applicable on the date of clearance of the goods. Before the Tribunal the appellant also sought to place reliance on the exemption granted under Notification No. 175/86, dated March 1, 1986 on the ground that the appellant is a small scale industry. The said contention was, however, not entertained by the Tribunal on the view that it was not raised before the lower authority and it could not be urged at the appellate stage. 2.Shri S. Muralidhar, the learned counsel appearing for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw the same result would have followed as had been done on December 17, 1987............. There is no valid reason as to why the same procedure should not have been followed in respect of the remaining goods in respect of which the bills of entry were filed on January 28, 1988 for debonding and clearance of goods. Merely because the officer failed to discharge his duties by making illegal demand for deposit of redemption fine, the appellant could not be held liable to pay duty. The appellant is therefore entitled to the delivery of goods without paying any duty as on January 28, 1988 no duty was payable on the goods." [p. 124] 3.The submission of Shri Muralidhar is that the principle laid down in the aforesaid decision of this Court in Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Standard Fireworks Industries Ors. v. Collector of Central Excise - 1987 (28) E.L.T. 56 5.We are unable to accept the said contention of the learned Additional Solicitor General for the reason that the Assistant Collector of Central Excise had issued a show cause notice dated November 29, 1987 demanding central excise duty of Rs. 11,94,122.94 on the fireworks cleared from the factory of the appellant for the period from August 1, 1981 to September 16, 1987 on the ground that certain operations were carried on with the aid of power outside the premises of the factory by outsiders and hence exemption under Notification No. 167/88, dated March 1, 1986 could not be available. In their reply to the said show cause notice the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption and suspicion." "In view of the foregoing there is no evidence at all in the available records to the effect that power had been used in or in relation to the manufacture of fireworks by the appellants rendering them ineligible for exemption under Notification No. 167/86, dated March 1, 1986." 6.The said order of the Collector (Appeals) was not challenged by the department and has become final. In view of the order of the Collector (Appeals) dated August 29, 1991, it cannot be said that in respect of goods which were detained on the basis of order dated September 2, 1987 exemption was not available under Notification No. 167/86, dated March 1, 1986. 7.The appeal is, therefore, allowed, the impugned judgment of the Tribunal is se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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