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TMI Blog1985 (7) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Rules, 1944, the Central Government hereby exempts Polyvinyl Alcohol, falling under Item No. 15A of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) and manufactured from Vinyl Acetate Monomer, from so much of the duty of excise leviable thereon under the said Act at the rate specified in the said First Schedule, as is in excess of the amount calculated at the rate of ten per cent ad valorem : Provided that such Polyvinyl Alcohol is manufactured from Vinyl Acetate Monomer on which the appropriate amount of the duty of excise under section 3 of the said Central Excises and Salt Act or the Additional duty under Section 3 of the Customs Tariff Act, 1975 (51 of 1975), as the case may be, has been paid. This notification shall be in force upto and inclusive of the 30th day of September, 1983." 4. It may be seen that the exemption is admissible subject to compliance with two conditions : (i) The PVA should be manufactured from vinyl acetate monomer; (ii) The appropriate amount of the duty of excise under Section 3 of the Central Excises and Salt Act or the additional duty of Customs under Section 3 of the Customs Tariff Act, as the case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts claim was under Section 3 of the Customs Tariff Act. The relevant question was : what was the central excise duty leviable on indigenous PVA ? If excise duty was leviable at more than one rate, then, additional duty of Customs would be leviable, in accordance with the provisions of the Customs Tariff Act, at the highest of the rates. But, the essential thing to ascertain was the rate of excise duty for the time being leviable on the goods. Indigenous PVA could have been manufactured only out of duty (excise or additional duty of Customs) paid vinyl acetate monomer. There was thus only one rate of excise duty leviable for the time being on indigenous PVA, viz. 10% ad valorem. And, additional duty of Customs on imported PVA would also be consequently 10% ad valorem. In response to a query from the Bench, the learned Counsel stated that if PVA was manufactured indigenously out of non-duty paid monomer, excise Notification No. 201/ 79 would come into play and such a manufacturer would not be eligible for the benefit of set-off of duty in terms of Notification No. 201/79. Turning to the Tribunal s decision in the Texplast Engineers Pvt. Ltd. case (supra), it was submitted that, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the taxpayer is within the plain terms of an exemption he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.......................... what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable or necessary implication . In the face of this clear enunciation of the legal position, there is no scope to hold that the second condition in the proviso to Notification No. 185/83 is redundant. The notification comes into play only if duty paid monomer is used in the manufacture of PVA.. It is immaterial whether in actual practice indigenous manufacture of PVA is always out of duty-paid monomer. If for whatever reasons the monomer used is not duty-paid, then the notification does not apply. However, we think it is unnecessary to enter into these considerations for our present purposes. What we have to see is whether the notification applies to imported PVA. Evidently, the monomer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise, in which event the rate of duty would be higher than 10% ad. val. It is this higher rate which appears to have been applied to the instant consignments of imported PVA. It is not, therefore. correct, in our opinion, to say that imported PVA would attract additional duty of Customs only at 10% ad. val. This is quite apart from the consideration that imported PVA cannot fulfil the conditions stipulated in Notification. No. 185/83 which, therefore, has no application. The above view is supported by the Tribunal s order in the Texplast Engineers Pvt. Ltd. case. 13. In our opinion, the learned Counsel s submission that the Respondents claim was with reference to Section 3(1) of the Customs Tariff Act and not with reference to Notification No. 185/83 suffers from an inherent contradiction. But for the notification, the question of even considering whether 10% ad. val. is the applicable rate of additional duty of Customs on imported PVA would just simply not arise. The rate specified in terms of Section 3 of the Central Excises and Salt Act read with the First Schedule to the Act is not 10%; it is much higher. It is only when Notification No. 185/83 comes into play, the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r assent : M. Gouri Sankara Murthy, Member(J)]. - 16. I agree that the appeals should be allowed but for different reasons. 17. Section 3 of the Customs Tariff Act, 1975 speaks of a levy of an additional duty equal to the excise duty for the time being leviable on a like article produced or manufactured in India and provides further that if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article is so liable shall be calculated at that percentage of the value of the imported article. 18. The expression the excise duty for the time being leviable on a like article if produced or manufactured in India was explained to mean the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India. 19. Polyvinyl alcohol - the imported goods in this case is, admittedly, manufactured in India and in terms of item 15A of the First Schedule to the Central Excises and Salt Act, leviable to duty at 50% ad valorem. However, in terms of Notification No. 185/83-C.E., dated 2-7-1983, so much of the duty of excise leviable thereon under the said Act at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h appeared to equate levy with an assessment as well as with the collection of tax when it held that when the payment of tax is enforced, there is a levy . We think that, although the connotation of the term levy" seems wider than that of assessment which it includes, yet, it does not seem to us to extend to collection . Article 265 of the Constitution makes a distinction between levy and collection . We also find that in N.B. Sanjana v. The Elphinstone Spg. Wvg. Mills Co. Ltd.-l978 E.L.T. (J399) (S.C.)=AIR 1971 S.C. 2039 at p. 2045 this Court made a distinction between levy and collection as used in the Act and the Rules before us. It said there with reference to Rule 10. We are not inclined to accept the contention of Dr. Syed Mohammad that the expression levy in R.10 means actual collection of some amount. The charging provision Section 3(1) specifically says There shall be levied and collected in such a manner as may be prescribed the duty of excise... It is to be noted that sub-section (1) uses both the expressions Levied and collected" and that clearly shows that the expression levy has not been used in the Act or the Rules as meaning actual collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e . (R 8). 28. Without having to go any further, any exemption notification, including the one relied upon by the Appellant, provides for an exemption from the duty leviable (at the rate specified in the First Schedule) and not assessable or payable or recoverable . What is leviable, therefore, is at the rate specified in the First Schedule. 29. It would, thus, be clear that right through the Act, the Rules, and the Notification of exemption, a distinction is maintained between levy and leviable on the one hand and assessment , collection , payment and payable on the other. The words are not synonymous or interchangeable. This being so, a duty that is leviable under the Central Excises and Salt Act can only mean, imply and have reference to the duties or the rates thereof specified in the First Schedule to the Act and not the duty that may be assessable or assessed or become payable after the application of an exemption notification. An exemption from a levy cannot be the levy itself. What is leviable is neither what is exempted from the levy or the remainder after the exemption. A levy is to be found in the First Schedule. What is leviable is, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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