Collr. of C. Ex. Vs. Shivalik Agro Poly Products Ltd. - Court Judgment

Excerpt:

.....the department.3. notification no. 208/84 was issued under section 11c of the central excise act, 1944 in respect of polyethelene films of all sorts of thickness not exceeding 0.25 mm falling under t.i. 15a of the first schedule to the act. the notification stated that in practice duty was not being levied on the item and as such duty shall not be required to be paid. this notification covers films of all sorts and is not restricted to film of flexible variety. there is no averment in the memorandum of appeal that the film manufactured by the respondent was of thickness exceeding 0.25 mm. in these circumstances, it must follow that by virtue of notification no. 208/84 respondent was not really required to pay excise duty. in this view, it is unnecessary for us to consider the plea relating to limitation.

Judgment:

1. Respondent is absent in spite of notice of hearing, but has sent a request for disposal of the appeal on merits. We have heard Shri M.Ali, JDR and perused the papers.

2. Respondent, engaged in the manufacture of LDPE Films [erstwhile T.I.15A(2)], had not filed classification list and had not obtained excise licence and was clearing the goods without payment of Central Excise duty. Samples were taken on two occasions by the Preventive Staff of the Department and the report of the National Test House, Calcutta showed samples to be of flexible quality. Respondent had not paid duty apparently under the belief that there was full exemption under Notification No. 68/71. It was found that the notification covered only Film of rigid variety and since the Film produced by the respondent was of flexible variety, it was not covered by the notification.

Accordingly, notice was issued to the respondent proposing demand of duty in respect of clearances during the period from 1-1-1981 to 3-11-1981. Respondent resisted the notice. However, the Assistant Collector confirmed the demand. Collector (Appeals) set aside the order on the ground that the notice was barred by limitation and that respondent had the benefit of full exemption under Notification No.208/84. This order is now being challenged by the Department.

3. Notification No. 208/84 was issued under Section 11C of the Central Excise Act, 1944 in respect of Polyethelene Films of all sorts of thickness not exceeding 0.25 mm falling under T.I. 15A of the First Schedule to the Act. The notification stated that in practice duty was not being levied on the item and as such duty shall not be required to be paid. This notification covers Films of all sorts and is not restricted to Film of flexible variety. There is no averment in the memorandum of appeal that the Film manufactured by the respondent was of thickness exceeding 0.25 mm. In these circumstances, it must follow that by virtue of Notification No. 208/84 respondent was not really required to pay excise duty. In this view, it is unnecessary for us to consider the plea relating to limitation.