2010 (7) TMI 757 - HC - Central Excise

Credit of duty on goods brought to the factory - with the repeal for the old rules and enacting these two new rules, the legal position has not changed. In view of Rule 33, the notification issued under earlier Rules, is deemed to be valid and issued under the Rule 16 of the present Rules, as the same is relevant and consistent with the present Rule. A perusal of the aforesaid rule makes it clear that even if duty is paid, it is refundable. Earlier, no duty was leviable. Therefore, the notification issued earlier cannot be said to be in contravention of any of the rules and the authority to pass such notification could be traced to this rule. In that view of the matter, the Tribunal was justified in holding that assessee is not liable to pay any duty on the naphtha as it was brought back to the crude tank of the refinery for further processing in the production of petroleum products, the substantial questions of law framed by the revenue do not arise for consideration. Even if they arise for consideration, they are answered against the revenue and in favour of the assessee, appeal is rejected.

Summary

Issues:
1. Appeal against Tribunal's order setting aside duty levied on the assessee.
2. Interpretation of Notification No. 218/1984 under Section 143-A of the Central Excise Rules, 1944 after its repeal in the absence of a specific provision in the new Rules 2000.

Analysis:
1. The appellant, the revenue, appealed against the Tribunal's decision setting aside duty levied on the assessee, M/s. MRPL, for moving and removing petroleum products outside the factory premises without payment of duty. The Tribunal relied on a judgment in a similar case and held that the Notification issued under the old Rules is deemed valid under the new Rules, thus exempting the assessee from duty payment. The revenue contended that the petroleum products removed from the Jetty are liable for excise duty under Section 3 of the Act as the old Rule 143-A, which provided the exemption, is repealed without a corresponding provision in the new Rules. The appellant argued that the Tribunal erred in granting relief to the assessee based on the old Notification.

2. The key issue was whether the assessee is entitled to the benefit of Notification No. 218/1984 under Section 143-A of the Central Excise Rules, 1944 even after its repeal, in the absence of a specific provision in the new Rules 2000. The Notification exempted raw naphtha used for flushing pipelines from excise duty if received back in the refinery's crude tank for further processing. The Tribunal's decision was based on the continuity of benefits under the old Notification to the new Rules. The assessee argued that Rule 33 of the new Rules deems old Notifications valid unless inconsistent with the new Rules, and Rule 16 allows for duty refunds, supporting their entitlement to the exemption.

3. The judgment analyzed the legal framework, including Rule 143-A of the old Rules, the Notification exempting raw naphtha, and the transitional provisions in the new Rules. Rule 32 of the Central Excise (No. 2) Rules, 2001 and Rule 33 of the 2002 Rules addressed the continuity of old circulars and notifications under the new Rules. Rule 16 provided for duty credit on goods brought back to the factory for further processing, indicating a refund mechanism. The court interpreted these rules to conclude that the old Notification exempting raw naphtha from duty remained valid under the new Rules, allowing the assessee to claim the exemption.

4. The court rejected the revenue's appeal, stating that the legal position remained unchanged with the repeal of old Rules and enactment of new Rules. The Tribunal's decision granting relief to the assessee was upheld, emphasizing the validity of the old Notification under the new legal framework. The court found no merit in the revenue's arguments and dismissed the appeal, affirming the assessee's entitlement to the duty exemption under the old Notification.