1997 (10) TMI 410

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....ith Rule 173Q of Central Excise Rules, 1944. It is alleged in the show cause notice dt. 11/13.11.1991 that the appellants have contravened the provisions of Rule 9(1), 52A, 173B, 173G, 174 and 226 of the Central Excise Rules, 1944 inasmuch as that they had manufactured and cleared dolomite powder falling under Chapter heading 25.05 of the Schedule to the Central Excise Tariff Act, 1985, without obtaining Central Excise Licence and without payment of Central Excise duty. It is also alleged that the noticee have also failed to file any classification list and price list with the proper officer in respect of the manufacture of dolomite powder at their factory and removed the same without payment of appropriate Central Excise duty due thereon a....

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....ribunal's judgment dt. 1.9.1988 passed in the case of Mahavir and Mahavir Minerals Khani Udyog; Ambica Minerals and Stone Supplier Co., wherein similar decision had been taken. They enclosed the copies of the said order and pleaded that as there was no manufacture, the question of excisability and payment of duty did not arise. The Learned Additional Collector without affording any opportunity of hearing has passed the impugned order confirming the demand without even stating as to how there is suppression or clandestine removal to attract the provisions of Rule 9(2) read with proviso to Section 11A of the Act. The Additional Collector relied on the judgment rendered by Tribunal in the case of Ajanta Marble and Chemical Industries v. Co....

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....Section 11A has also been not invoked. He has only invoked Section 11A(1) which refers to clandestine removal. There has been no clandestine removal as the appellants had filed the declaration and thereafter, they had obtained the licence. In the present case, the appellants have also taken a stand that they were not under bona fide belief that the item is not dutiable in view of the M.P. High Court judgment in the case of Mahavir Minerals holding that the item has to be nondurable. The M.P. High Court in the case of S.N. Sunderson (Minerals) Ltd. v. suptd. (Preventive) Central Excise as reported in 1995 (75) ELT 273, wherein the question of confirmation of larger period was considerable. The MP High Court held that in view of the contrary ....