ORDER
J.N. Srinivasa Murthy, Member (J)
This appeal is filed by the above Industries against the Order in Appeal No. PPM-1244/NG.197/87 of 04.12.1987 passed by Collector of Central Excise, Nagpur, praying for quashing and setting aside the same, and for refund of Rs. 14,454.30 deposited on 20.03.1986 under P.L.A. Entry No. 2886.
1. The brief facts of the case are that appellant manufacture vegetable products falling under Tariff Item 13 of Central Excise Tariff, made from mixture of indigenous rice bran oil of edible grade and other oils. As per Notification No. 99/84, dated 30.04.1984, the above product is exempted from so much duty of excise leviable thereon as is equivalent to the amount calculated at the rate of Rs. 30/- per quintal on the quantity of rice bran oil used in the manufacture of the said vegetable products provided the content of indigenous rice bran oil is such mixture is in excess of 3% of products (vegetable) prepared at a particular batch of such mixtures. Appellant had cleared the vegetable products under GP1 Nos. 1999, 2000, 2002, 2003, 2005, 2007 and 2008 all dated 30.04.1984, wherein % of rice bran oils used in the manufacture of vegetable products so cleared is only 1% as against required 3%. Superintendent issued show cause notice on 18.08.1984 under Section 11A of Central Excises and Salt Act to appellant to show cause to Assistant Collector, Central Excise, Amravati Division as to why duty of Rs. 14,454.30 should not be recovered from it. Appellant filed reply on 26-12-1984. On 09.12.1985 personal hearing was held. Appellant produced a notification published in Gazette on 22.05.1984 in support of the reply 23.07.1985 of letter of Asstt Collector (Periodicals) was also produced. Arguments were made. On considering the same, Assistant Collector of C. Ex. Akola, passed order-in-original, confirmed the demand and directed to pay within 10 days from the date of receipt of order dated 28.01.1986. Appeal by the appellant against it was dismissed under impugned order which is now challenged.
2. Before the Collector (Appeals) also party was heard. Now written submission is made on 02.02.1995 along with PLA Extract, 19.03.1984 letter to Assistant Collector and Gazette Notification regarding Notification dated 30.04.1984, with covering letter dated 23.07.1985 of Asstt. Collector (Periodicals), Department of Publication, Govt. of India, New Delhi. JDR was heard. From the above, the stand of the appellant in this appeal is that the appellant received the Notification No. 99/84 dated 30.04.1984 very late, and soon it was received, they have informed the Jurisdictional Central Excise Office, and there is no fault on them and excess rebate availed is correct. Refund claim of Rs. 756267.75 is pending in Divisional Office. Recovery of demand should not be pressed. On 30.04.1984 earlier Notification No. 259/83 was in force and rebate claimed thereunder is right. The appellant has sent a separate notice of intention to Asstt. Collector, Central Excise, Amravati, informing that it would manufacture vegetable products as per condition (B) of the Notification No. 259/83 dated 14-10-1989 under Registered Letter dated 19.03.1994 No. GO/1836/84 for the period from 01.04.1984 to 31-12-1984 (financial year 84-85), which was received by the Office of the Assistant Collector, Central Excise, Amravati, as per the acknowledgement, copies of which are produced. Thereafter appellant availed the exemption of duty of Rs. 14,454.30, after fulfilling the terms of conditions of Notification No. 259/83 dated 14-10-1983 on 30.04.1984. Later on 22.05.1984 appellant learnt that Notification No. 99/84, dated 30.04.1984 rescinded notification No. 259/83 dated 14-10-1983, as per the letter of Assistant Collector (Periodicals) No. Gazette/82374/85 dated 23.07.1985. Till 22.05.1984, Notification No. 259/83 dated 14-10-1983 was in effect and exemption claimed thereunder is proper, legal and valid, as the new notification was made available to public only from 22.05.1984, when it was published in the gazette notification withdrawing concession could be enforced only from which date it was made public, till then earlier notification continue to operate, as per 1990 (50) E.L.T. 29 (Madras High Court) by Union of India v. Asia Tobacco, 1993 (64) E.L.T. 23 (Delhi High Court) in Universal Cans and Containers Ltd. v. Union of India and 1994 (72) E.L.T. 805 (S.C.) in the case of Pankaj Jain Agencies. In view of the impugned order cannot stand and requires to be set aside. J.M. George, learned JDR for Respondent has argued that under GPS, vegetable products manufactured the contents of rice bran and other oils was 1.4%, less than 3% prescribed unit under the Notification 99/84, dated 30.04.1984 to deprive exemption to the appellant, which is correctly held in the Impugned Order and also in order-in-original.
3. Point for consideration is whether the order of Lower Authorities can be maintained, without interference? My answer is in the affirmative.
4. Perused the orders of Lower Authorities, appeal memorandum and written submission and documents produced. The crux of the case is what was the Notification prevailing on 30.04.1984, when exemption was availed by the appellant. As per order-in-original it was the notification bearing same date? Even if appellant’s detention accepted, appellant has given intention of availing benefit, on 14-11-1983, last date of giving it, which was received in Asstt. Collector office on 02.12.1983. There was no request of extension of period. Non-compliance of condition of Notification No. 259/83 is not challenged in arguments, and so appellant was liable to pay duty. As per the Impugned Order any notification under rule 8 (1) of Central Excise Rules are effective from the date of issue, unless specified otherwise. In the case of notification No. 99/94 it is 30.04.1984. There were no arguments on merits of the case, and no declaration was filed fulfilling the condition of notification 99/84.
5. So from the above material it is seen that the main contention of appellant in Notification No. 99/84 dated 30.04.1984, comes into force only from 22.05.1984, when it was published in official gazette, and the knowledge of it came to appellant only on 23.07.1984 as per the communication by Asstt. Collector (Periodicals). In view of this, compliance of conditions in Notification No. 99/84 does not apply. The contention of the appellant is supported by the judgment of High Courts of Madras and Delhi and Supreme Court. This is not rebutted or negatived by Respondent. Date of notification is the date of enforcement is not supported by any legal provision or case of law. Normally, the notification issued should reach the party to be effected, for its enforcement. More so when it is adversely affected like in this case. As per show cause, enforcement of notification No. 99/84 is concentrated, and its effect. Evidently as per Gazette Notification and the clarification in that regard by Assistant Collector (Periodicals), on 22.05.1984 it was published. As contended by the appellant that should be the date of application. Its life is limited in notification by clause (2) that it remains in force up to and inclusive of 31-12-1984. If really it was to be implemented on the date of notification, it would have been mentioned specifically. In the absence of it, in view of case laws supporting the ground of appellant, it is to be upheld that on 30.04.1984 Notification No. 259/83 was in force.
6. Regarding availment of benefit under Notification No. 259/83/14-10-1983, Appellant had to give declaration its intention to avail benefit within 14-11-1983, or to seek extension of period to Asstt. Collector of Central Excise. As per order-in-original, appellant gave his intention on 14-11-1983, which has reached the Asstt. Collector office on 02.12.1983, and there was no request for extending the period. Even according to appellant’s case he should have done so, when he is sending on last date by which time it should have reached. Annexure ‘B’ is the letter dated 19.03.1984 with respect to Notification No 259/83, dated 15-10-1983. It is sent by Registered Post A.D. Thereunder intent to avail benefit of exemption granted under the above notification, during the period 01.04.1984 to 31-12-1984 (BDI) is given. It is acknowledged in Asstt. Collectors office on 30.05.1984. In this case it is not shown when Notification No. 259/83 dated 15-10-1983 was published in the Gazette to comply the conditions. In the absence of it, appellant has not complied the requirement Asstt. Collector’s finding and discussion given clear picture about the date of declaration by appellant and its receipt in Asstt. Collector’s office on 03.12.1983, which is nearly 18 days after the period fixed, from the date of notification. The case of the appellant in that regard cannot be upheld and it is rejected. Point raised is answered in the affirmative. Hence the following order :
ORDER
For the reasons discussed above, appeal cannot be allowed. It is rejected.