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TMI Blog1988 (6) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... tem 34 of the CET. They were liable to pay Automobile Cess at the prescribed rates. The said Automobile Cess has been imposed on the Motor Vehicles w.e.f. 1-1-1984 as per order No. S.O. 932(E), dated 28-12-1983 of the Ministry of Industry (Department of Heavy Industries), New Delhi under sub-section (1) of Section 9 of the Industries (Development and Regulation) Act, 1951. As per explanation to sub-section (1) of Section 9 of the said Act, the value on which the said Cess is leviable has been defined to be wholesale cash price, less certain stated deduction. 3. A show cause notice was issued to the appellants on 11th October, 1985 and they were required to show cause as to why the differential Cess duty leviable on motor vehicles clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inclusive of Central Excise duty, Sales Tax or any other tax." Hence, these appeals. 5. The learned Counsel for the appellants submitted that Section 9 of the Industries (Development and Regulation) Act, 1951 (hereinafter to be referred to IDR Act) provides for Cess to be levied and collected for the purpose of IDR Act on all goods manufactured and automobiles are one of them. He submitted that explanation to Section 9(1) of the IDR Act, provided that the expression value in relation to any goods shall be deemed to be the wholesale cash price for which such goods of the like kind and quality are sold or are capable of being sold at the time of their removal therefrom without any abatement or deduction whatever except trade discount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts submitted that explanation to Section 9 of the IDR Act defines value and it was only trade discount and duty payable that were deductable from the wholesale cash price according to the same. Shri Naik submitted that in the section, the Cess payable should be considered as duty and only Cess is to be deducted to arrive at assessable value. With reference to Rule 3 of the Automobile Cess Rules, the learned JCDR argued that Act prevails over Rules and Rules can prevail only if no section covers the subject. He submitted that Section 4 of the Central Excises and Salt Act and the explanation to Section 9, IDR Act and not in pari materia and referred to a Calcutta High Court Judgment in the case of Collector of Central Excise, Calcutta an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schematic difference between old Section 4 and new Section 4 of the Central Excises and Salt Act, 1944. 9. Prior to the amendment of the section, Central Excise duty, sales-tax and octroi were not being included in the assessable value even though the section did not provide for exclusion of these taxes as is done by the section after it was amended on 1-10-1975. We have also perused the judgment of the Patna High court (full bench) in the case of Katihar Jute Mills v. Inspector of Central Excise [1985 T.L.R. 2571]. In this judgment, the High Court held that after the amendment of Rules 9 and 49 of the Central Excise Rules, 1944, the foundation from the ratio of Rameshwar Jute Mills has been taken away. A perusal of Section 9 of the IDR A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), 3 of Automobile Cess Rules and Section 4 of Central Excises and Salt Act, 1944 that the collection of Cess should be on the same value as the collection of Central Excise Duty. Besides Section 9 IDR Act provides for the deduction of trade discount and the amount of duty then payable. We do not accept the arguments of the JCDR that the word duty appearing in these lines is to be read as Cess . When the section mentioned duty, there is no basis on which the word can be altered to read as Cess . Besides, Rule 3 of the Automobile Cess Rules makes it clear that the provisions of the Central Excises and Salt Act are to be applied for the levy and collection of Cess. Besides, in this context, reading the word duty as Cess will lead to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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