1989 (11) TMI 191

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.... that the appellants have a good case on merits and in this connection he drew our attention to the show cause notice dated 14-4-1988. He has pleaded that duty has been demanded from the appellants in respect of clearances of fents, rags and chindies in excess of 8% of the total quantity of clearances of low price fabrics falling under Chapter 5501.20 of the Central Excise Tariff Act, 1985 without payment of Central Excise duty and without following the Central Excise procedure by suppressing the fact of excess clearances. He pleaded that the appellants were manufacturing fabrics after obtaining the polyester yarn in terms of Notification 191/85 at concessional rate of duty and were manufacturing low price polyester cotton fabrics in pursua....

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....not below the rank of a Joint Secretary in the Ministry of Supply and Textiles, for the manufacture of low price fabrics containing more than 40 per cent but less than 70 per cent by weight of the said polyester fibre; (iii) the manufacturer shall, within such period as the Assistant Collector of Central Excise may specify in this behalf, produce a certificate :- (a) in the case of fabrics woven on handlooms, from the Director in charge of textiles and handlooms in the Government of a State or the Chief Executive Officer in the Khadi and Village Industries Commission or a State Khadi and Village Industries Board; (b) in the case of other fabrics, from the Textile Commissioner, to the effect that the said polyester fibre has been used for....

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....istant Collector was the proper authority and not the Collector of Central Excise and hence the show cause notice issued by the Collector of Central Excise was not maintainable." He has pleaded that the learned lower authority has given no finding in regard to this plea. He further pleaded that the limit of 8% in regard to the fents, rags and chindies as set out in the notification has to be related to the quantity of clearance of the low price fabrics. He has pleaded that no norm as to the period over which the clearances have to be taken into reckoning has been fixed and in any case it is the Textile Commissioner who has to certify the use of the fabric for the purpose for which it has been permitted by the notification. 3. The learned ....

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.... first time and there are no findings by the lower authority, he would request the matter be decided by the Collector de novo taking into consideration this plea and he made no pleadings in this regard. The learned Collector has also not set out as to which period he has taken into reckoning for working out the percentage of rags, etc. cleared vis-a-vis the total clearances of the low price fabrics. The correlation has to be with reference to the lot of the fabric cleared. Further, the notification envisages that the suppliers are required to produce a certificate from the Textile Commissioner to the effect that the polyester fibre cleared under concessional rate has been used for the purpose set out in the notification. This is a statutory....