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2020 (10) TMI 183 - AT - CustomsRefund of Mica Cess - levy of said mica cess got repealed vide the Finance Act, 2016 - effective date of repealment - It is the contention of the appellant that no mica cess is leviable on export of mica products w.e.f. 01.04.2016 whereas, the contention of the Department that the said levy got omitted only with effect from 14.05.2016 which is the date of enactment of Finance Act, 2016. Whether the date of repeal of mica cess would be 14.5.2016 i.e. the date of enactment of the Finance Act, 2016 (when the Finance Bill received the assent of the Hon ble President) or 01.04.2016 as mentioned in an office Memorandum dated 27.7.2016 issued by the Department of Economic Affairs, Budget Division, under Ministry of Finance, Govt. of India, which has been relied upon by the appellant while pursuing the refund application? HELD THAT - On perusal of the amendments introduced vide Section 239 of the Finance Act, 2016, it clearly appears that the same would be applicable with the date of enactment i.e. 14.05.2016 inasmuch as no stipulation has been made to provide that the same would be applicable w.e.f. 01.04.2016. By virtue of said Section 239, the enactments mentioned in the Fifteenth Schedule have been repealed (incl. the repeal of mica cess levy). This is more so in view of the specific provision made in Section 241 of the Finance Act, 2016, reproduced above, which clearly provides that the duties levied under the respective enactments (which got repealed vide Section 239) immediately preceding the date on which the Finance Bill, 2016 receives the assent of the President, if not collected shall be collected and paid into the Reserve Bank of India for being credited to the Consolidated Fund of India - This clearly affirms the position that cess applicable under the repealed Act was very much effective till the date of receipt of the Hon ble President s assent. The same being the legal position, no contrary conclusion can be drawn on the basis of contents of Office Memorandum dated 27.07.2016 as relied by the appellant. The observation made by the Apex Court in BK. INDUSTRIES VERSUS UNION OF INDIA 1993 (4) TMI 66 - SUPREME COURT is squarely applicable to the facts of the instant case, inasmuch as the Apex Court clearly held that Section 13 in the said case (Section 241 in the instant case) expressly provided that the cess due before the date of said repeal, but not collected, shall be collected according to law as if the Cess Act is not repealed. This provision amounts to a positive affirmation of the intention of the Parliament to keep the said imposition alive and effective till the date of the repeal of the Cess Act - Mere reliance by the learned Advocate on the Official Memorandum dated 27.7.2016 would not come to their rescue inasmuch the same cannot override the legal position emanating from the provisions contained in the statutory enactment. Appeal dismissed - decided against appellant.
Issues:
1. Eligibility for refund of mica cess in respect of shipping bills filed after 01.04.2016 and before 14.05.2016. Analysis: The appellant, M/s. Daruka International, filed an appeal against the rejection of their refund claim for mica cess under the Mica Mines Labour Welfare Fund Act, 1946. The dispute arose regarding the effective date of the repeal of mica cess - whether it was 01.04.2016 or 14.05.2016. The appellant contended that no mica cess was leviable on exports from 01.04.2016, while the Department argued that the levy ceased only from 14.05.2016. The lower authorities sanctioned refunds for bills filed after 14.05.2016 but rejected those for the prior period. The Commissioner (Appeals) upheld this decision, citing the Gujarat High Court's ruling in a similar case and the Supreme Court's decision in B K Industries vs. UOI 1993. The key issue to be determined was the effective date of the repeal of mica cess, specifically whether it was 01.04.2016 or 14.05.2016. The Finance Act, 2016, repealed the relevant enactments, including the mica cess levy, with effect from the date of enactment, i.e., 14.05.2016. Section 241 of the Finance Act further clarified that duties under the repealed enactments were to be collected until the date of the Finance Bill's assent by the President. Therefore, the legal position indicated that the mica cess remained in effect until 14.05.2016, as per the statutory provisions. The Tribunal noted the Gujarat High Court's decision in Gujarat Paraffins Pvt Ltd., emphasizing that statements in budget speeches do not hold legal weight unless supported by statutory provisions. The Supreme Court's ruling in B K Industries case further reinforced this principle, stating that only parliamentary enactments could render cess inoperative. The Court highlighted that reliance on an office memorandum could not override statutory provisions. Consequently, the Tribunal upheld the lower authorities' decisions, rejecting the appellant's appeal for a refund of mica cess for bills filed before 14.05.2016. In conclusion, the Tribunal found no grounds to interfere with the decisions of the lower authorities, as the legal position supported the cessation of mica cess only from 14.05.2016 onwards. Therefore, the appeal by the appellant, seeking a refund for bills filed before this date, was dismissed.
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