2001 (7) TMI 141 - HC - Central Excise

Issues Involved:
1. Validity of Circular dated 19-10-2000 issued by the Central Board of Excise and Customs.
2. Applicability of Additional Excise Duty (AED) on yarns manufactured by 100% Export Oriented Undertakings (EOUs) from indigenous raw material and cleared into Domestic Tariff Area (DTA).
3. Whether the circular deprives petitioners of the benefit of exemptions under Notification 8/97-C.E., dated 1-3-1997 and Notification 55/91-C.E., dated 25-7-1991.
4. Maintainability of writ petitions challenging the circular.
5. Whether the circular is ultra vires to the provisions of the Central Excise Act, 1944 and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978.

Detailed Analysis:

1. Validity of Circular dated 19-10-2000:
The petitioners challenged the circular issued by the Central Board of Excise and Customs, arguing that it was ultra vires to the provisions of the Central Excise Act, 1944, and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. The circular clarified that AED would be levied on yarns manufactured by 100% EOUs from indigenous raw materials and cleared into DTA, in addition to Basic Excise Duty (BED).

2. Applicability of AED on Yarns by 100% EOUs:
The petitioners, registered as 100% EOUs, contended that the circular deprived them of the exemptions available under Notification 8/97-C.E., dated 1-3-1997, read with Notification 55/91-C.E., dated 25-7-1991. They argued that the amendments made to Notification 8/97-C.E. by Notification 11/2000-C.E., dated 1-3-2000, did not affect the exemptions granted under Notification 55/91-C.E. The respondents countered that the circular was merely clarificatory and did not create any new duty liability.

3. Exemptions Under Notification 8/97-C.E. and 55/91-C.E.:
The petitioners argued that Notification 55/91-C.E. exempted goods exported by EOUs from AED, while Notification 8/97-C.E. (unamended) covered DTA clearances. They contended that the amendment to Notification 8/97-C.E. did not impact the exemptions under Notification 55/91-C.E. The respondents clarified that Notification 55/91-C.E. did not exempt DTA clearances from AED, which was addressed by Notification 8/97-C.E. before its amendment on 1-3-2000. The amendment brought parity in excise duties payable by 100% EOUs and domestic manufacturers.

4. Maintainability of Writ Petitions:
The respondents argued that the writ petitions were premature and that the petitioners had alternative remedies. The petitioners countered that the appellate authorities could not rule on the legality of the circular. The court upheld the maintainability of the writ petitions, stating that the petitioners' challenge to the circular's vires justified the petitions.

5. Ultra Vires Nature of the Circular:
The court examined whether the circular was ultra vires to the powers of the Board and the exemption notifications issued under Section 5A(1) of the 1944 Act. It concluded that the circular was a mere clarification of the existing position and did not exceed the Board's powers. The court noted that Notification 55/91-C.E. related to goods exported by EOUs, while Notification 8/97-C.E. (amended) pertained to goods cleared in DTA. The amendment aimed to bring parity between 100% EOUs and other manufacturers regarding duties on goods sold in India.

Conclusion:
The court found no grounds to quash the notices issued for the recovery of AED on goods cleared by the petitioners in DTA. The writ petitions were dismissed, upholding the validity of the circular and the applicability of AED along with BED on DTA clearances by 100% EOUs.

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