TMI Blog2002 (7) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... s attracting tariff classification under Chapter 40 of Central Excise Tariff Act, 1985 (in short "CETA 1985") in their factory situated in SIPCOT complex, Gummidipoondi. It has its administrative Office at Madras. The factory premises is licensed under the Rules of Central Excise. The physical control of Excise authorities over the removal of goods under Chapter V of Central Excise Rules became operative. According to the rules for physical control of licensed manufacturer of excisable goods, the manufacturer is required to give notice of manufacture before intending to manufacture; prior declaration of factory premises and equipment has to be filed before the Collector; the alteration or movement of factory equipment in the licensed area w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is even ex facie unacceptable in law. The notice has been issued in an arbitrary fashion which cannot per se be the basis for demanding duty alleging any evasion of payment of duty. Since the Apex Tribunal has taken a view that the Central Excise authorities required the manufacturer/assessee to prove the negative, it would be futile for the petitioner to pursue the departmental remedies at this stage. Since all the forums including the Apex Tribunal would be following the same ruling of the Tribunal and the petitioner's pursuit of remedy in the departmental forums would therefore be illusory and ineffective; hence the present writ petition before this Court. 3.Assistant Collector of Central Excise (Legal) in the Office of the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved for clearance of goods or in the maintenance of statutory records or in the submission of the returns and other formalities, and that the petitioner-company is functioning under the control of Excise Department, the impugned show cause notice cannot be sustained. In the earlier part of my order, I have already referred to the relevant provisions/procedure to be followed and the definite case of the petitioner-company that they are observing all the rules and there has not been any serious irregularity at any point of time. In such a circumstance, Mr. Aravind Dattar, learned Senior Counsel for the petitioner has contended that if the show cause notice itself is not in accordance with the statutory provisions, even at this stage, this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearances of excisable goods to that extent and in this case, the same procedure has been followed as applied for by the petitioner in the AR 1s and hence, the question of allowing excess clearances of goods does not arise. It is further submitted that there is no dispute in the clearances of goods allowed by the department and no differential duty has been demanded from the petitioner on those goods...." It is clear that as and when the petitioner-company files AR 1 applications with the proper Officer, the proper Officer allows the clearances of excisable goods to that extent and the same procedure has been followed in the case of the petitioner. In the light of the admitted factual position, as rightly argued by Mr. P. Aravind Dattar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Para 15 of the counter affidavit, there is no clandestine removal without assessment. On the other hand, it is clear that goods had been removed with the express permission of the Excise authorities. Further, the argument against the impugned demand on grounds of limitation has a lot of force because when the unit was also under physical control of the Excise Department, the show cause notice issued on 30-8-93 for the period 1989-90 to 1992-93 being beyond six months' period under Section 11A of the Act is squarely time-barred because the charge of clandestine removal is incongruous in a unit under physical control of the Excise Department. By applying the principle laid down in the above decision and in the light of the admitted factual p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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