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TMI Blog1990 (5) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 that they would pay duty at the enhanced rate in case there is any upward revision of duty in the ensuing Budget. 3. In the Budget, rate of Basic Excise Duty on cement was enhanced from Rs. 65/- per M.T. to Rs. 135/- per M.T. At the same time Special Excise Duty on cement which was earlier leviable @ 10% of the Basic Excise Duty was exempted under Notification 24/82 dated 28th February, 1982. In terms of the undertaking executed under Rule 224 (2-A) of the Central Excise Rules, 1944 the assessee paid up the Basic Excise Duty at the enhanced rate in respect of the goods cleared after 17 hours on Budget day. The assessee also made a claim for refund of Special Excise Duty which were debited for their clearances after 17 hours on the Budget day. 4. Heard Smt. J.K. Chander, JDR, on behalf of the department. None appears on behalf of the assessee, who has made a request that the appeal may be disposed of on merits. 5. Smt. J.K. Chander, has strongly reiterated the view of the department that the assessee cannot get the benefit of the exemption of Special Excise Duty in view of the fact that this exemption takes effect only from the date of the notification which is 28th Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment is satisfied that the assessee has duly fulfilled the requirement under rules. At the same time assessee has claimed that he should have the benefit of the exemption from Special Excise Duty. This, the department denies him on the ground that the relevant notification under which exemption from Special Excise Duty has been accorded becomes applicable only with effect from the following date, that is, 28th February, 1982 and the benefit thereof cannot be extended in respect of clearances taken on the previous day. I don't agree that this view is correct, strictly, both the enhanced rates of Basic Excise Duty as well as the exemption from Special Excise duty are effective only from 28th February, 1982. The assessee has, however, paid Special Excise Duty at the enhanced rate in terms of the provisions of Rule 224(2-A). Under this Rule the assessee had undertaken to pay "duty at the enhanced rate if any that may be applicable - with effect from the date immediately following -". Clearly the undertaking given by the assessee should be deemed to relate both to Basic Excise Duty as well as to Special Excise Duty and in the event, as in this case the enhancement of the Basic Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g this question the decision held that special excise duty and basic excise duty are different. To the same effect is the decision of the Supreme Court in Union of India & Ors. v. Modi Rubber-1986 (25) E.L.T. 849 (SC) which, inter alia, holds that exemption from duty of excise does not ipso facto mean exemption from special excise duty, additional excise duty or auxiliary duty. The two decisions are not directly on the issue involved in the appeal which primarily involves interpretation of Rule 224(2A) of Central Excise Rules :- 15. For the purpose of these appeals it is not necessary to record a finding on the question whether the expression 'any duty" occurring in sub-rule (2A) of Rule 224 without anything more embraces special excise duty also. The question turns on the effect of an application made under the sub-rule by manufacturer in writing to the Central Government undertaking to pay duty at the enhanced rate, if any, that may be applicable to such goods with effect from the date following the date appointed for the presentation of annual or supplementary budget as referred to in the sub-rule. But for this provision and application it would not be permissible for the manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y enhanced excise duty by the imminent Budget can claim refund of special excise duty if by the Budget central excise duty be enhanced but there be no exemption from special excise duty ?" While the Member (Technical) is of the view that refund of special excise duty should be granted. Vice President (Judicial) differs from the Member (Technical). 19. The point of difference, as formulated above, is therefore submitted to President under Section 35-D of Central Excises & Salt Act, 1944 read with Section 129-C (5) of the Customs Act, 1962. [Per: G. Sankaran, President]. - 20. This matter was taken up for hearing today. M/s. Associated Cement Co. Ltd. was not represesnted in the Court. They had earlier written to say that they would not be appearing in person. Accordingly, I have perused the records and heard Shri V. Chandrasekaran, SDR, for the Department. 21. The Learned Departmental Representative supports the opinion expressed by the Learned Vice President (Judicial) Shri S.D. Jha. His submission is that the exemption from Special Excise Duty would take effect only from the midnight of 27/28-2-1982 and that, therefore, the exemption which was not in force during the material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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