Per G.A. Brahma Deva:

This is an appeal filed by the assessee against the impugned order dated 20.9.91 passed by the Collector of Customs & Central Excise (Appeals), Tiruchirapalli.

2. Appellants engaged in the manufacture of fire works manufactured without the aid of power, are exempt from whole of duty of excise thereon in terms of Notification 167/86 dt. 1.3.86. The said exemption notification was withdrawn w.e.f. 17.9.87 by a Notification No. 222/87. On 24.8.87, the appellants' goods, ready for clearance, were detained by the Central Excise officers on the suspicion that they had been manufactured with the aid of power and, therefore, were not eligible for exemption under Notification No. 167/86. Subsequently, the appellants obtained an order from the High Court of Madras for release of the detained fire works without payment of central excise duty without prejudice to further investigation, whether power was used or not in their manufacture. Accordingly, appellants cleared the detained fire works subsequent to 17.9.87 i.e. after the withdrawal of the aforesaid exemption notification. In view of the withdrawal of the said exemption notification, the Assistant Collector demanded a duty of Rs. 20,80,416.35 in respect of the detained fire works cleared subsequent to 17.9.87. The appellants have become unsuccessful even before the Collector (Appeals). Hence this appeal.

3. Shri Tyagrajan, ld. Sr. Advocate appearing for the appellants, submitted that the fire works manufactured by various assessees were detained prior to 17.9.87 and the respective assessees had gone to the High Court and got order from the High Court for release of the detained fire works without payment of central excise duty. The duty had been demanded in all the cases and they had filed the appeal before the Collector (Appeals). He submitted that one of them M/s. Kuil Fire Works Industries have since become unsuccessful like the assessee before, the Collector (Appeals) has filed the appeal before the Tribunal. Tribunal also dismissed the appeal confirming the demand. Aggrieved by the order passed by the Tribunal, the party i.e. Kuil Fire Works Industries have gone to Supreme Court on an appeal and the Supreme Court has clearly held that an assessee cannot be made to suffer on account of illegal act of departmental authorities as reported in 1997 (22) RLT (S.C.) =1997 (95) E.L.T. 3 (S.C.). He submitted that in the instant case also sufficient evidence was brought on record by the assessee that the assessee has not used power in manufacturing fire works and same was not rebutted by the department. In fact though the Collector (Appeals) has confirmed the demand, but still, observed that no evidence was brought on record by the Assistant Collector to show that the assessee has used the power for manufacture the fire works during the relevant period.

4. Shri Kannan, ld. D.R. appearing for the revenue, reiterated the grounds and fairly conceded that the facts of this case are identical to that of Kuil Fire Works Industries (supra) decided by the Supreme Court.

5. We have carefully considered the matter. The case are identical to that of Kuil Fire Works Industries (supra) decided by the Supreme Court.

6. We have carefully considered the matter. The Supreme Court in para 3 of the said order in the case of Kuil Fire Works Industries after taking into consideration of the ratio of the decision in the case of Priyanka Overseas Pvt. Ltd. Vs. Union of India reported in 1991 (51) E.L.T. 185 (S.C.) observed that the appellants cannot be made to suffer on account of illegal action by the Excise authorities and the principle laid down in Wallace Flour Mills Company Ltd. reported in 1989 (44) E.L.T. 598 (S.C.) will have no application in the facts of this case. Para 5 of the judgement is also relevant and same is reproduced as under :

5. We are unable to accept the said contention of the learned Additional Solicitor General for the reason that the Assistant Collector of Central