ORDER
T.P. Nambiar, Member (J)
1. This is an appeal filed by the department against the orders passed by the Collector (Appeals). In Para 7 of the impugned order the learned Collector (Appeals) held as follows :
7. “Where a similar question arose where proportionate money credit in respect of Ethyl Alcohol in terms of the same Notification No. 231/87 was sought to be denied on the ground that it contained 1% denaturant in the case of Chemicals & Plastics Ltd., Mettur Dam, I have allowed the party’s appeal vide my Order-in-Appeal No. 23/95(CBE) with the following observations.
“I find that Ethyl Alcohol issued for industrial use is required to be denatured using denaturant to prevent its misuse. But despite such denaturing of Ethyl Alcohol it continues to be classified under Heading 22.04 of the Central Excise Tariff Act, 1985. Therefore the use of the term ‘Ethyl Alcohol’ in the Notification No. 231/87 has to be understood as per the Tariff description and since there is no difference between pure Ethyl Alcohol and denatured Ethyl Alcohol for the purpose of classification, there is no warrant to deny the proportionate money credit to the extent of denaturant content”.
Further even according to the description given in the Tariff Ethyl Alcohol of any strength is classifiable under Heading 22.04 only, and as rightly pointed out by the respondent there is no reference in Notification No. 231 /87-Central Excise, dated 1-10-1987 as to the strength of the Ethyl Alcohol to determine the eligibility for the benefit of money credit.”
2. In the appeal grounds the department has contended that Notification No. 231/87 refers to Ethyl Alcohol only and the money credit scheme can be extended only to the Ethyl Alcohol content and the Methyl Alcohol content. Therefore, it was pointed out that the orders passed by the Collector (Appeals) is not in accordance with law.
3. The learned JDR for the department Shri Murugandy stated that this issue is covered by our Order No. 2572/96, dated 2-12-1996 -1997 (92) E.L.T. 187 (Tribunal). In this order, he invited our attention to para 7 which reads as follows:
7. “We have considered the submissions. We find that Notification No. 231/87 refers to ethyl alcohol only. There is no reference to ethyl alcohol falling under Heading 22.04 of the tariff. The money credit is made available at the rate of Rs. 520 per KL of ethyl alcohol. It is therefore seen that in 100 litres of denatured ethyl alcohol only 99 litres of ethyl alcohol is present and the rest 1 litre is methyl alcohol. The notification has to be construed strictly. Even otherwise it is now a well settled principle that in the case of any ambiguity in the notification, the benefit of doubt has to go to the Govt. In these circumstances, we are of the view that the contrary findings of the Collectors is not in accordance with law and we accordingly set aside the impugned order and restore the findings passed by the Assistant Collector holding that money credit is available only for the ethyl alcohol content which is 99% and not to methyl alcohol which is 1%.”
4. The learned Chartered Accountant stated before us that while interpreting the notification, the meaning given in the Tariff is to be taken into consideration and in this connection he relied on the following decisions of the Hon’ble Supreme Court :-
1997 (91) E.L.T. 529
1994 (73) E.L.T. 497
He, therefore, stated that in the tariff entry Ethyl Alcohol includes denatured as well as un-denatured and that for the purpose of Rule 57K for money credit scheme also the same should be adopted. It was also pointed out that at the relevant time the Assistant Collector was designated by the Board to adjudicate all the cases within Rs. 50,000/- except approval of price list and classification. He, therefore, pointed out that in the present case the amount involved is more than Rs. 50,000/- and, therefore, the Assistant Collector had no jurisdiction to adjudicate the matter. He, therefore, pointed out that this being a point of law can be urged even at this stage in the appeal filed by the department. He also pointed out that the question of jurisdiction goes to the deep root of the matter and, therefore, the order passed without jurisdiction is nullity which can be challenged at any stage of the proceedings. He, therefore, stated that since this question relates to jurisdiction, even though the respondents have not filed cross appeal, still the same is required to be considered. He pointed out that there are rulings to the effect, that Division Bench of the Andhra Pradesh High Court has held that the Assistant Commissioner has no jurisdiction to adjudicate cases beyond Rs. 50,000/-. He, therefore, pointed out that this question should also be decided in the appeal filed by the department.
5. We have considered the submissions of both the sides. The first question for determination is whether the money credit scheme is to be given to the full Ethyl Alcohol including the Methyl Alcohol. The above issue is squarely covered by our decision which is relied on by the learned JDR. But it is stated that the Supreme Court while interpretation of notifications held that the expression used in the Act as well as in the Tariff has to be given weight and the same meaning should be adopted for interpreting the notification. But in this case we observe that Modvat scheme is a self-contained scheme and in this case we are not interpreting a notification which is issued under the tariff. It is only when the Tribunal is required to interpret a notification which is issued under the Tariff the above Principles laid down by the Supreme Court will apply. But since in this case we are dealing with Rule 57K of the Modvat scheme and notification issued thereunder, it is clear that this notification having been issued under Rule 57K of the Modvat Rules and not under the Tariff, the Principles laid down in the above decisions do not apply to the facts of this case.
6. Therefore, the above cited decisions of the Supreme Court will not apply to the facts of this case. That being so, in terms of our earlier order following the same, we allow the appeal of the department with consequential relief.
7. The second point to be determined is whether the question of jurisdiction can be entertained at this stage. The Assistant Collector has already adjudicated the case. This decision of the Assistant Collector was taken up in appeal by the respondent before us, before the Collector (Appeals). The learned Advocate stated that this question of jurisdiction was raised before the Assistant Collector and he stated that this plea of the appellant is not valid and he has rejected the plea. Therefore, it is seen that when this plea was rejected it was for them to have contended about the same before the Collector (Appeals) by filing a cross objection, but that was not done. Even in the appeal before us the respondents did not challenge the same. It is now a well settled principle that all points which ought to have been raised at the proper time, if not raised, they are barred by principles of res judicata and, therefore, cannot be allowed to be raised before us in the appeal filed by the department.
8. In this view of the matter that the above plea cannot be entertained at this stage and accordingly, the appeal is allowed in the above terms, with consequential reliefs.