TaxTMI 
TaxTMI 
1997 (7) TMI 424
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....tion after obtaining the requisite permission from the Commissioner of Central Excise, Calcutta-II in terms of the provisions of Rule 191B of the Central Excise Rules, 1944. The requisite formalities i.e. filing of price-list etc., were observed by the appellant company on such diversion of paraffin wax to home consumption. The permission was granted by the Commissioner vide his Communication No. B-11A(7)-3-CE/WB/75/21944-D, dated 5-9-1977. As the slack wax was received by the appellant company without payment of duty under the provisions of Rule 191B for the purpose of export and as the final product manufactured out of the said slack wax, was not exported, but was cleared for home consumption, a show cause notice, dated 3-9-1977 was issued to the appellants proposing to confirm the demand of duty of Rs. 2,30,563.03 under the provisions of Rule 9(2) read with para 10 of the Notification No. 53/59-CE., dated 9-5-1959, as amended from time to time issued under Rule 191B of the Central Excise Rules, 1944. The said show cause notice was subsequently amended by the Assistant Commissioner on 6-3-1979. 2.2. During pendency of the adjudication on the said show cause notice, the ap....
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....ourt also observed that the matter cannot be answered in a Writ Jurisdiction since the same involved disputed question of fact. The High Court also observed that there was no requirement to interfere into the Order passed by the learned Single Judge as regards the issue of additional Excise Duty, as the Department had not suffered or would not suffer, since every opportunity to have the due tax realised or to take necessary steps in accordance with law, had been kept open (Emphasis provided). 5. In pursuance of the Orders passed by the Honourable High Court, a fresh show cause notice dated 16-5-1989 subsequently amended vide Corrigendum dated 4-10-1993, was issued by the Assistant Commissioner of Central Excise, Chandannagore Division. During the proceedings before the Assistant Commissioner, appellant raised various points namely, that the demand was barred by limitation of six months as provided under Section 11A of the Act; that all types of wax were covered during the relevant period under Tariff Item 11A(3) and as such the duty paid on the paraffin wax should be adjusted towards the duty sought to be recovered on the slack wax; that the duty paid by them on 110 M.T. of....
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....edings afresh. The said Order of the Division Bench of the High Court was not appealed against by the Department. We, as a Tribunal, do not have any powers and jurisdiction to question the correctness or otherwise, of the Orders passed by the Honourable High Court of Calcutta. As such, the decision relied upon by the learned Advocate is not applicable as there were clear directions by the High Court to start the proceedings afresh on quashing of the earlier show cause notice dated 16-12-1977, we hold that the subsequent show cause notice dated 16-5-1989 cannot be said to be barred by limitation. 9. Slack wax was procured by the appellants without payment of duty under the provisions of Rule 191B. However, the paraffin wax having been manufactured out of the said wax instead of being exported in terms of AR-3A Bond, the same was diverted for home consumption. As such, the exemption under which the slack wax was obtained without duty, was not available to the appellants. The duty has been rightly demanded on the said slack wax. 10. The findings of the Single Judge of the Calcutta High Court that the appellants were not required to pay any additional Excise Duty on par....
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....y 110 M.T. of paraffin wax and the rest is a waste for which they had applied to the proper authorities for destruction and disposal. Accordingly, they contend that the duty-demand should be restricted to 110 M.T. only. We do not find any force in the said plea of the appellants herein. The duty having been confirmed on the slack wax, there is no warrant for restricting the same on 110 M.T. of paraffin wax manufactured out of the said slack wax. The appellants' request to the Assistant Commissioner for destruction of the residue of slack wax after processing, is required to be dealt with by the Assistant Commissioner separately and is, in fact, not an issue before us. 13. The appellants have also contended forcefully that the slack wax and paraffin wax - both being classifiable under Tariff Heading 11A(3) of the erstwhile Tariff Act, duty was not payable twice on the said excisable item. In support of this, they have referred to decisions and judgments in the case of Swastic Packaging, Bombay v. Collector of Central Excise, Bombay reported in 1986 (23) E.L.T. 217 (T) and in the case of Collector of Central Excise, Calcutta v. Andhra Industrial Works reported in 1991 (56) E.....