TaxTMI 
TaxTMI 
1986 (7) TMI 258
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....ribunal, the revision application was transferred to it in terms of Section 35P(2) of the Central Excises and Salt Act, 1944, to be disposed of as if it were an appeal filed before the Tribunal. 2. The facts of the case material and relevant for our purpose may be briefly stated. M/s. Bata India Limited (hereinafter, for brevity's sake, "Bata") had manufactured during the period 1975-78, 70 shoe-making machines classifiable and chargeable to excise duty, under item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 (the "CET" and the "Act" respectively). Some of these machines were cleared from the factory for sale to other parties and some were used within the appellant's factory for shoe-making. They were clear....
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....nded from Bata under rule 9(2). Bata replied on 8-7-1980 on the same lines as they had done with reference to the Superintendent's notice, on 12-8-1980, the Collector issued a corrigendum to the show cause notice clarifying the amount of duty was amended to Rs. 1,65,834.22 at 8% ad valorem. Bata replied on 3-10-1980 contending that duty could be levied only at the rate prevalent on the date of manufacture and/or clearance and not at a rate in force on the date of payment of duty. They pleaded that the duty already paid by them should be deemed to be the correct amount of duty payable. In due course, the Collector passed an order on 3-10-1980, holding the charges against Bata as established. He imposed a penalty of Rs. 1,25,000/- on Bata and....
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.... warrant to support the Board's view that "cleared" would mean only clearance on payment of duty and after compliance with the formalities under the Rules. If the Board's view was correct, the term "removal" could not be used for removal on payment of duty (it would be "clearance", as per the Board's view). However, several sections of the Act and the Rules [e.g. Section 11A(3)(ii), 11B explanation B, Rules 9(1), 9A(1) 2nd proviso, 14A (proviso a), 14B(i), 49(1), 53(1 )(a)] used the term "removal" for clearance on payment of duty. There was, therefore, no distinction between "cleared" and "removed". If this be so, Rule 9A(1) (ii) clearly applied to the present case. The amendment to Rule 9A by the notification No.101/81 was only by way of c....
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....h goods from such factory or warehouse." The term "cleared" was substituted by the term "removed" by notification No. 101/81. 8. In re : Bharat Metal Industries, Batala, 1981 E.L.T. 503 the Board (as appellate authority) had held that when the dates of clearances of the goods was ascertained from the books of accounts maintained by the appellants, duty was chargeable in terms of Rule 9A(1)(ii) and not Rule 9A(5). 9. In re : Mining & Allied Machinery Corporation, Durgapur, 1982-ELT-517, the Central Government, acting as revision authority, held that it was not the intention (of the rule) to invoke Rule 9A(5) when the date of removal of the goods from the factory was known to the department. The absence of the word "on paym....
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....Tribunal to the contrary were also cited before us. The first is R. Subbiah Gounder v. Collector of Central Excise, Coimbatore, 1985 (21) E.L.T. 618. In this case, the allegation was that the tobacco warehouse licence had illicitly removed non-duty paid tobacco from his bonded warehouse in contravention of Rule 151(c) and (d). Duty on the resultant shortage was demanded under rule 160. We find that the Bench noted that according to the view taken by the highest authorities in the department on the advice of the Ministry of Law, Rule 9A(5) was applicable to cases of this type. The Bench further noted that neither side was able to say as to why rule 9A(5) should not apply to cases of such illicit removals. No authorities were cited before the....
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....en the dates of actual removal of the goods are ascertainable, as is the case in the present matter, rule 9A(1)(ii) and not rule 9A(5) would apply during the period in dispute. We, therefore, set aside this part of the Board's order and restore the demand for duty to that applicable in terms of Rule 9A(1)(ii). 15. As regards penalty, it is apparent from the record that the goods had been cleared without payment of duty. It was only during audit check that it was detected that Bata was manufacturing the machines and using them within the factory without payment of duty. It appeared that a spot memo was issued on 28-12-1976 to which Bata sent a reply on 18-4-77. The Range Superintendent called for full particulars of such machines on ....