Full Judgment
2. It was observed that this order-in-appeal covers two orders-in-original namely Order Nos. 143/93 and 144/93. However, the department had filed only one appeal and therefore, after we had heard the matter for some time a question arose as to which order-in-original was required to be taken into consideration for the purpose of this appeal.
3. Ld. D.R. clarified that in this matter two show cause notices were issued, one dated 1-7-1992 which is a demand-cum-show cause notice and another dated 5-11-1992; and the demand of Rs. 5,97,966/- has been raised in the notice dated 1-7-1992 and in the Grounds of Appeal, the Collector has referred to this amount and to the Notification No. 24/91 alone and therefore, at this stage when the matter has been heard for quite some time, he will opt for consideration of this demand notice and consequential adjudication Order No. 144/93 which confirms this demand, if such an option was necessary and he was required to choose now.
4. We observe that actually since the order of the Collector (Appeals) referred to two adjudication orders, in the normal course the department should have filed two appeals if it was aggrieved against both the orders-in-original. But since the matter has been already heard with reference to Notification No. 24/91 and the above demand, we intend to proceed with this matter.
5. In this respect Ld. D.R. has drawn our attention to Notification No.24/91 as amended by 8/92.
6. He stated that the appellants are manufacturers of cement falling under Heading No. 2502.29 and had availed benefit of this notification, but they had not satisfied the condition of the notification indicated in Serial No. 1 of the table incorporated therein. This serial number shows that the benefit is available to the "factory not required to obtain an industrial licence and using vertical shaft kiln". The appellants have purchased the clinker from outside and used it for manufacture of the quantity of cement in question i.e. in respect of this quantity they have not used vertical shaft kiln of their factory.
Hence, they were not eligible for the benefit.
7. In response to queries, he clarified that there was no dispute that the factory had a vertical shaft kiln but the point is that merely having it was not sufficient; it was required to be used and such a use could be only for production of clinker to be converted subsequently into cement. Hence, the demand.
8. Ld. Counsel stated that they had rightly availed the benefit of this notification as they had fully satisfied the conditions inasmuch as admittedly they have a vertical shaft kiln in their factory and the wordings in Serial No. 1 Col. 2 have to be seen in the light of the condition under Col. 3 which refers to the installed capacity and this condition has been satisfied.
9. It was also his submission that this notification was subsequently amended in 1994 by Notification No. 5/94 as further amended by 82/94 and by these amendments under second proviso Clause (a) was introduced and this clause made the notification inapplicable in respect of clinker not manufactured within the same factory. It was therefore, his contention that the benefit could be denied only after this amendment and not before for the amendment could not be applied retrospectively.
10. In the alternative, it was also his contention that A.C. by his Order No. 143/93 had already allowed the benefit with reference to Notification No. 175/86 for the financial year 1992-93 and therefore, in any eventuality the demand could not survive for the period of April, 1992. In this connection, he would draw attention to paragraph 2 of the order-in-appeal read with penultimate paragraph of the order of Collector (Appeals). These paragraphs clearly refer to the benefit of Notification No. 175/86 to which they were entitled for the month of April, 1992. Hence, the demand was in any case required to be modified.
11. Ld. D.R. stated that in the impugned order, the Asstt. Collector has confirmed the entire demand. Therefore, if it is held in the departments favour that the benefit of Notification No. 24/91 was not available to the respondents, in that case it cannot be said at this stage whether they would be still entitled to the benefit of 175/86 for the month of April, 1992. However, if the Deparment's plea is accepted the consequential amount demandable has to be in accordance with the law and therefore he has no serious objection if the other side was given liberty to show to the A.C. the exact amount demandable from them in case they were held as not entitled to the benefit of Notification No. 24/91.
12. Ld. Counsel stated that he has no objection, if it was left to the A.C. to recheck and work out the correct figure of demand in terms of the existing orders which may remain in force after the Tribunal's order.
13. We have considered the above submissions. We observe that it would have been better if the department had filed two appeals. However, as the matter stands at the moment, we find that in so far as the Notification No. 24/91 as amended by 8/92 is concerned, we have to go by the language of the notification as it stood during the relevant period. During this period in the Table incorporated in the notification against Sr. No. 1, the words quoted above by the Ld. D.R.clearly show that the words 'and using vertical shaft kiln' are crucial. Since the emphasis is on the word 'using' therefore merely having a vertical shaft kiln was not sufficient.
14. At the same time it is true that this notification was subsequently amended in 1994 and Clause (a) of second proviso explicitly stated that the benefit will not be available to the cement manufactured in the factory from clinker not manufactured within same factory and in the normal course such amendments are prospective and not retrospective.
15. All the same in the present case, we are faced with a phraseology which was clear and explicit by itself and therefore, we will have to go by the language and wordings as they stood during the relevant period. In the circumstances, if the intention of the legislature was to allow this benefit to a factory which simply had a vertical shaft kiln and the exemption was not related to the use thereof, then the wordings would have been 'and having vertical shaft kiln' but the words here are 'and using vertical shaft kiln'. Therefore, in view of the admitted position that the quantity in question was not manufactured out of clinker made by use of vertical shaft kiln, the department's contentions have a strong force. Since the quantity of cement in question was not made by use of shaft kiln (for production of clinker), the benefit of this notification was not available during the relevant period. As a result of acceptance of the department's plea on this point, the amount consequentially demandable could be realised.
16. Hence in view of the observations of the Collector (Appeals), which refers to the perspective of 175/86 the exact amount due may be determined by the A.C., if necessary.
18. Before parting, it is clarified that in terms of the above order, it will be open to the Assistant Collector to re-calculate the exact amount, if called for, and for this purpose, if necessary, he may allow the respondents an opportunity of making their submissions before realising the demand.