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TaxTMI 
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2000 (8) TMI 232
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....st under Rule 173B of Central Excise Rules, 1944. The demands were raised with regard to the clearances from 14-8-1996 to 21-11-1996 and 7-12-1996 and 19-12-1996 in respect of 51,718.60 MTs of cement cleared during this period which was in terms of the show cause notice beyond the limits of 99,000 MTs in terms of the amended notification in existence. The appellants have contended that Notification No. 8/96-C.E., dated 23-7-96 and also Notification No. 33/96-C.E., dated 16-12-96 cannot be given retrospective operation. They had also argued that they were originally availing concessional rate of duty in respect of 99,000 Tonnes of cement cleared prior to 23-7-96 in the financial year 1996-97 and in addition would also be entitled to avail co....
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....d 5/94-C.E. shall also be included in the aggregate clearances of cement effected during a financial year. However, the fact of the matter is that mention of Notification No. 5/94-C.E. in Notification No. 8/96-C.E. was redundant because the former had already become otiose. Its incorporation in Notification No. 8/96-C.E. was an inadvertent act on the part of the Central Government. In fact, the more appropriate notification that should have found place in the said brackets was Notification No. 12/95-C.E. However, neither the mention of the otiose Notification (No. 5/94-C.E.), nor non-mention of Notification No. 12/95-C.E. did not materially after the spirit of the Notification No. 8/96-C.E. Nevertheless, the Central Government in its wisdom....
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....tion No. 12/95-C.E., is not to be reckoned for taking the total clearances for the financial year. 4. The plea is opposed by learned JDR on the ground that the combined reading of all the notifications does hot give a clue that the assessee operating under any of the notifications would be entitled to benefit beyond the limit of 99,000 MTs in a financial year. It is his contention that although in Notification No. 8/96-C.E., mention about Notification No. 12/95-C.E., was not there, but however, the said error was rectified by issuing Notification No. 33/96-C.E., which substitutes the words 5/94 by the word 12/95-C.E. Therefore, the mistake which was inherent in Notification No. 8/96-C.E., has been made apparent. What was implicitly implied....
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....) has been mentioned. Therefore, cumulatively the effect of Notification No. 8/96 is only to grant benefit to an extent of 99000 MTs to clearances in a financial year. He submits that the appellants while trying to argue that Notification No. 1/95-C.E., having not been mentioned in parenthesis to Notification No. 8/96-C.E., are trying to take advantage of taking benefit beyond 99000 MTs which does not flow from the intention of Notification No. 8/96-C.E. He submits that a plain reading of a notification has to be given and the legislature's intention to grant benefit to an extent of 99000 Tonnes of clearances in a financial year is very clear by amending the Notification No. 8/96-C.E. Hence, he submits that there is no error in the order. ....
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....ioned instead of Notification No. 12/95-C.E. The intention not to give benefit beyond 99000 Tonnes of clearances is very implicit in the reading of Notification No. 8/96-C.E., and the same had been made very clear by clarifying the same by issue of Notification No. 33/96-C.E. Therefore, the reasons given by the ld. Commissioner in the impugned order is acceptable. Further, the appellants have also not shown that legislature had an intention to give benefit beyond 99000 Tonnes of clearances in a financial year. It is now well settled that a notification should not be read in a way as to give an unintended benefit to an assessee as held by the Apex Court in the case of Mangalore Chemicals & Fertilisers Ltd. reported in 1991 (55) E.L.T. 437. W....
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....onclusion that there was no clandestine removal in the case and his subsequent order confirming demand under Rule 9(2) is incongruous with the findings arrived by him. We are not impressed with this submission of the learned Counsel, the reason being that the reading of the entire show cause notice clearly shows that the proceedings are not based on clandestine removal. The terms of the show cause notice explicitly brings out about the appellant wrongly availing the benefit of the notification. The show cause notice also brings out about the appellants having filed a classification list which had been wrongly approved. In that view of the matter, the Commissioner clearly held that the clearances were not of clandestine removal. We notice th....