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TMI Blog1989 (12) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... ile Textile Articles) Act, 1978 5. Khadi Other Village Industries (Addl. Excise Duty on Cloth) Act, 1953. 4. Exemption Notifications were issued by the Government of India in respect of Tariff Item 22 goods, granting exemption from the whole of the duty of excise leviable thereon, under the Central Excises Salt Act, 1944. The appellants contended that the Department had collected duties of excise under other enactments such as additional excise duty and Handloom Cess and that they were advised on the basis of the Delhi High Court Judgment reported in 1983 (12) E.L.T. 24 (Modi Rubber Ltd. v. UOI) that where there was an exemption Notification under the Central Excises and Salt Act, 1944, no further duty of excise could be levied other than the duty provided for under such an exemption notification, since duty of excise included within its ambit, all kinds of excise duties irrespective of their nomenclature. 5. The appellants filed claims for refund of additional excise duty and handloom cess paid on man-made fabrics between the periods (a) May, 1975 to December, 1975 (b) January, 1976 to December, 1981 (c) January, 1979 to December, 1979 and (d) 1st January, 1982 to 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se as the appellants have, in support of their refund claims, relied upon the Central Excises Salt Addl. Duties of Excise (Amendment) Act, 1980, which Act stands on a higher footing than a notification. Learned Counsel cites the decisions reported in 1984 (18) E.L.T. 172 and 1983 E.L.T. 214 to support his contention that once a finding is given by a superior authority on contentions raised before it, it is binding upon the subordinate authorities in subsequent proceedings unless there is some change either in the facts or in the law and he states that, at the time of issue of the show cause notices, the subordinate authorities were bound by the decision in the Modi Rubber case. He, therefore, contended that the refund claims should have been allowed in their entirety. 8. In the alternative, learned Counsel urged that the refund claim should at least have been allowed for the period prior to 20-8-1981 i.e. for the period after excluding a period of 6 months calculated backwards from 20-2-1982 (the date when Notification No. 20/82 came into force, amending Rules 9 49 of the Central Excise Rules by adding an Explanation to clarify that goods consumed or utilised within the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, refund is due. Since the 1980 Amendment Act is a special law concerned only with textiles, he urges that that Act should be considered as an exception to, or qualification of, the general law enacted in Section 11B of the Central Excises Salt Act, 1944. 12. Finally, learned Counsel seeks to draw a distinction between Section 11A applicable to demand of duty and 11B relating to refund and submits that the bar of limitation under Section 11B should not operate against the appellants in these cases. 13. We have carefully considered the arguments put forth by both sides. We find that, on the dates of receipt of the refund claims, Section 11B of the Central Excises Salt Act, 1944 had come into force. We find great force in the contention of the learned DR that the refund claims have been filed only with reference to both notifications i.e. Notification No. 110/75 and 78/82, as no claim could have arisen in the absence of the Notifications. The Notifications read as follows :- Notification No. 110/75-CE, dated 30-4-1975 In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts processed ray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding for exemption from the duty of excise leviable, or, as the case may be, fixing the rate of duty, under the said Central law, unless such notification or order- (i) expressly refers to the provisions of the said Central law in the preamble; or (ii) by express words, provides for an exemption from the duty of excise leviable, or, as the case may be, fixes the rate of duty, under the said Central law; and...." 15. The law also is finally settled by the decision of the Supreme Court in 1986 (25) E.L.T. 849 (UOI v. Modi Rubber) in which the Supreme Court held that it is clear that where a notification granting exemption is issued only under sub-rule (1) of Rule 8 of Central Excise Rules, without reference to any other statute making the provisions of the Central Excises Salt Act and the Rules made there under applicable to the levy and collection of special, auxiliary or any other kind of excise duty levied in such statute, the exemption must be read as limited to the duty of excise payable under the Act and cannot cover such special auxiliary or other kind of duty of excise. Thus the issue is concluded against the appellant by the above cited decision which is binding upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all material times and accordingly, notwithstanding any thing contained in any judgment, decree or order of any Court, Tribunal or other authority, any action by virtue of such notification shall be deemed to be for all purposes validly and effectively taken or done as if the provisions had been in force at all material times. In view of this provision, the action taken by the Department in terms of the notification under 110/75 was required to be considered as correct notwithstanding any Court judgment or order. Hence, the ld. Counsel s reliance on Delhi High Court s judgment was of no avail. 21. In so far as Notification No. 78/82 was concerned, I note that this notification was not in existence during the material time i.e. May to Dec., 1975. It came into existence and superseded Notification No. 110/75 only in Feb., 1982 and was thus not relevant. 22. In any eventuality, as mentioned by ld. Member (Judicial) the law is finally settled by the decision of the Supreme Court in the case of Union of India v. Modi Rubber reported in 1986 (25) E.L.T. 849.I, therefore, agree with my ld. Colleague as mentioned above. 23. Consequently, the appeal stands dismissed. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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