Customs, Excise and Gold Tribunal - Mumbai
H & R Johnson (India) Ltd. vs Commissioner Of Central Excise, ... on 30 July, 2001
ORDER
1. The question for consideration in this appeal is the eligibility to the benefit of notification 118/75 of the refractory materials manufactured by the appellant in its factory at Taloja and not found to have been used in that factory. The notification exempts from for whole of the duty goods falling under item 68 of the Tariff, manufactured in a factory and intended for use in the factory of manufacture or any other factory of the same manufacturer. It provides that where the goods are used in a factory of the Collector of Central Excise in which he has stated that the benefit of the notification would be available to the refractories used at Dewas and Thane. However that was not the issue before the Collector. The notice upon which he was adjudicating proposed penalty on the manufacturer for removing goods from the Taloja factory for manufacturing goods without a licence and not maintaining the prescribed records. The notice did not call upon the appellant to pay duty. The observations of the Collector with regard to the availability of the exemption are in the nature of obiter and not binding.
2. The counsel for the appellant is not doubt right that the decision of the Tribunal have held that the omission to comply with the condition is no ground for denying the benefit of notification. This is the view taken by the Tribunal in Hiranyakeshi Sahakari Sakkare Karkhane Niyamit vs. CCE 1989 (39) ELT 658. However, the department representative points out that the condition in the notification that the goods must have been used in the other factory of the same manufacturer has not been complied with. The point that he makes, that the explanation that the appellant offered, the it had to get the refractories manufactured at the Taloja factory because of labour trouble in other two factories would itself show that no goods could have been manufactured in the other two factories with the use of these refractories. Counsel for the appellant cites the order dated 19.8.88 of the Collector of Central Excise in which he has stated that the benefit of the notification would be available to the refractories used at Dewas and Thane. However that was not the issue before the Collector. The notice upon which he was adjudicating proposed penalty on the manufacturer for removing goods from the Taloja factory for manufacturing goods without a licence and not maintaining the prescribed records. The notice did not call upon the appellant to pay duty. The observations of the Collector with regard to the availability of the exemption are in the nature of obiter and not binding.
3. The appeal does not say or attempt to say, that the refractories which the appellant manufactured at Taloja and removed from there were used in the other two factories. There is no ground in the appeal to this effect either. On being asked, the counsel for the appellant says that he has no information in this regard. In these circumstances, we are not satisfied that a case exists for remanding the matter. For fact, it must be shown that the matter involved verification of facts which it is not possible, or reasonably practicable, for the appellate authority to carry out. The net result is that there is insufficient material to interfere with the impugned order.
4. Appeal dismissed.