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TMI Blog1985 (10) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1st November, 1980. Simultaneously with the aforesaid order, the Central Government published the draft of the Pulp, Paper, Paperboard and Newsprint Manufactures Cess Rules 1980" on 27-10-1980, inviting objections and suggestions from all persons likely to be affected thereby, within 60 days. On 16th February, 1981, the Central Government, after considering the objections and suggestions received from the public on the said draft, made the Paper and Paper Board Cess Rules, 1981", in exercise of the powers conferred by Section 30 of the aforesaid Act. Rule 2 define inter alia, Collector" as the Collector of Central Excise and includes the Additional Collector of Central Excise, Deputy Collector of Central Excise, Assistant Collector of Central Excise and Superintendent of Central Excise . Rule 3, which applied the Central Excises and Salt Act and the Rules made thereunder to the aforesaid Cess, in the following terms :- Save as otherwise provided in these rules, the provisions of the Central Excises and Salt Act, 1944 (1 of 1944), and the Rules made thereunder including those relating to refund of duty, shall, so far as may be, apply in relation to the levy and colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not clear. The period of demand being from 1-11-1980 to 28-2-1981, the demand notice issued on 24-4-1981 was not in any case hit by limitation. During the course of the hearing before us, the appellant s representative also stated that the question of limitation did not arise in respect of the demand). 6. We have heard Shri D.N. Kohli, Consultant, for the appellant and Shri B.R. Tripathi, Sr. D.R. for the respondent. Shri D.N. Kohli submitted that till the issue of Notification No. GSR-66 (E) on 16-2-1981, applying the provisions of the Central Excises Act and the Rules to the levy and collection of the cess, the question of levy of the cess by the Central Excise authorities or payment of the cess by the appellants to the Central Excise authorities did not and would not arise. This notification was brought to the notice of the trade only on 3-3-1981 by the Central Excise department s trade notice. Shri Kohli further submitted that the Ministry of Industry s notification dated 27-10-1980 imposing the cess no doubt referred to the cess as a duty of excise but did not say that it was a duty of central excise. Only on 16-2-1981, it was notified that the Collector of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointment of the Collector did not relieve the occupier of a mill from the burden of the levy of cess under the Produce Cess Act, 1966. He further stated that the draft rules were also published on 27-10-1980 simultaneously with the Central Government s order bringing into effect from 1-11-1980 the subject case. Referring to the Madras High Court judgment in Asia Tobacco case (supra), Shri Tripathi submitted that it had been stayed by a Division Bench of the Madras High Court. Having regard to these circumstances, it was Shri Tripathi s contention that the appellants could not escape the burden of the levy for the period from 1-11-1980 to 16-2-1981 on the ground that no Collector had been appointed till 16-2-1981 and that the Collector published the rules by a trade notice only on 3-3-1981. 10. In a brief rejoinder, Shri Kohli submitted with reference to the Supreme Court judgment in the Dhanpat Oil General Mills case (supra) that in that case the relevant rules already existed; only the Collector had not been appointed. In the present case, however, no rules existed during the material period. It was not, Shri Kohli added, that appellants did not accept the liability for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der notification dated 13-6-1962, single cotton yarn between 17 and 35 counts, whether grey or bleached and grey multiple fold yarn cleared out of the factory in hanks were totally exempt from payment of duty with effect from 24-7-1962. Admittedly, the length of the cotton yarn in the hanks cleared out of the appellant s factory was more than 840 yards and duty was demanded on the clearances taken. During the pendency of the proceedings, the Government issued another Notification on 16-2-1963, adding an explanation to the earlier notification that the term hank means hank which does not contain more than 768 metres of yarn in plain (straight) reel and that this shall be deemed to have been taken effect from 17-8-1962. The Court held that the rule making authority had not been vested with the power under Central Excises and Salt Act to make rules with retrospective effect. Therefore, the retrospective effect purported to be given to the notification was held by the Court to be beyond the powers of the rule-making authority. We do not quite see the relevance of this judgment to the facts of the present case. It is not as if, in the present case, the levy of the cess is sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Court was that the appellant (the mills) was not liable to payment of the cess for the period during which the Collector and the Appellate authority had not been appointed and no penal proceedings could be taken against the appellant for not furnishing returns and depositing the cess pertaining to such period. The Collector was appointed only on 13-7-1970, whereas the Produce Cess Rules came into force on 28-3-1969 (We are not concerned in the present matter with penal proceedings and, therefore, we shall not touch upon that aspect). The Court held that the absence of a duly appointed Collector under the Produce Cess Act did not relieve the occupier of a mill from the burden of the levy. The levy was imposed by Section 3(2) of the Act and came into existence immediately on the taxable event attracting excise duty. The accrual of the obligation to suffer the duty did not depend on the appointment of a Collector. The imposition and accrual of the duty was a thing apart from its assessment and collection. The obligation to file returns remained in respect of the entire period during which the Collector had not been appointed and once the Collector was appointed, the occupier of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 15 of the Produce Cess Act, till the Collector was appointed, the situation was hardly different from the situation in the present case where the provisions of the Central Excises and Salt Act and the Rules were made applicable to the subject cess and the Collector was appointed on 16-2-1981. 15. Another point taken up by Shri Kohli is that the provisions of one enactment could not be made applicable to another enactment by a rule. In support of this contention, he relied upon the Supreme Court decision in the case of A.S. Bawa (supra). The facts of A.S. Bawa s case were that the Central Government, by a notification under Section 12 of the Central Excises and Salt Act, made the provisions of Section 129 of the Customs Act, 1962 applicable to the appeals in respect of Central Excise duties. Section 129 of the Customs Act required an appellant to deposit the duty or penalty levied, pending an appeal. But, under Section 35 of the Central Excises and Salt Act, a person aggrieved by any decision or order had an unfettered right to appeal. The Court held that Section 129 of the Customs Act whittled down the substantive right of appeal and accordingly the condition of the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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