9911796707
TMI Blog1992 (6) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants filed a refund claim claiming the refund of duty equal to the State Excise duty levied. This claim was rejected by the Assistant Collector in his order dated 27-5-1987 holding that the goods are liable to additional duty of customs under Sec. 3 of the Customs Tariff Act, 1975 at the rate at which excise duty is for the time being leviable for like goods if produced or manufactured in India and the Assistant Collector concluded that in the case of alcoholic liquors, the rate at which State Excise duty is leviable is to be applied for the purpose of additional duty of customs under Sec. 3 CTA, 1975. In their appeal against the Assistant Collector s order, the appellants contested the levy of basic customs duty also saying that it should have been at a lower rate of Rs. 60/- per litre plus Rs. 5/- per litre and that on account of this there has been excess levy to the tune of Rs.1,80,180/- although this aspect was not a ground in their refund claim. They also contended that the State Excise duty will not come within the purview of Sec. 3(1) of the CTA, 1975 and that the term Excise Duty occurring in Sec. 3(1) CTA, 1975 would only mean Central Excise Duty. Since there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector of Customs, Cochin Customs House therefore, passed his aforesaid order dated 13-3-1990 holding that the only ground on which refund was claimed within time, was regarding refund of C.V. duty only and the claim for re-clas- sification of the goods under heading 2208.10 had been made much later and was time-barred under Section 27 of the Customs Act, 1962. He also pointed that, subsequently, the appellants had claimed that the goods were entitled to the benefit of exemption under Notification 76/86 besides claiming re-classification under heading 2208.10 as against 2208.30 and that thus the claim had undergone a change both qualitatively and quantitatively thereby becoming a totally new claim based on a new set of facts. Therefore, the claim for re-classification of the goods under heading 2208.10 was held as barred by limitation by the Assistant Collector. This order of the Assistant Collector has been disposed of by the order dated 28-11-1990 by the Collector of Customs Central Excise (Appeals), Cochin. The Collector (Appeals) in this order noted that in the light of the earlier remand order of the Collector (Appeals), the appellants claim for complete exemption from C.V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication are on record, the Tribunal will be well within its competence to consider the claim for re-classification. Reliance was also placed on the case of Bussa Overseas and Properties (Pvt.) Ltd. v. Union of India - 1991 (53) E.L.T. 165 (Bombay High Court) that the goods, being not portable whisky but concentrate, cannot be subjected to Central Excise duty as also in the case of Raman Kantilal Bhandari v. Union of India and Others reported in 1987 (27) E.L.T. 617 (Bom.) that no duty of central excise is leviable on alcohol of all sorts which is excluded from Item 68 CET. Therefore, the Ld. Consultant urged that the goods, being alcohol not subject to central excise duty at all, there is no question of applying Notification 144/76 because when the levy itself is outside the purview of the Central Excise, there is no question of applying exemption notification. Relying on the Supreme Court decision in the case of Union of India v. Modi Rubber -1986 (25) E.L.T. 849, it was contended by the Ld. Consultant that duty of excise must refer to basic duty only, under Rule 8(1) and special excise and auxiliary duty of excise are not covered. On this basis also, the additional duty under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. also referred to certain clarifications issued by the Finance Ministry in its F.No. 3/3/87 dated 7-10-1987 clarifying the question of C.V.D. on goods which are subjected to State Excise duty. Notification 144/76 dated 2-8-1976 has been explained therein and it also shows that the Law Ministry s opinion has been obtained that the term Excise Duty occurring in Sec. 3 CTA, 1975 is not confined to Excise duty leviable under the Central Excise only. The Ld. D.R., further, relied upon the Supreme Court decision in the case of Khandelwal Metal Engineering Works Anotheretc. v. Union of India Others reported in 1985 (20) E.L.T. 222 (S.C.) to say that Excise Duty is referred in CTA, 1975 is a measure of the additional duty of customs. It remains a duty of customs only and the critical event is not manufacture of the goods but the import. The Ld. D.R. also relied upon the decision of the Tribunal in the case of Collector of Customs, Calcutta v. Birla Jute Industries in Order No. C/17-20/92- D dated 14-1-1992 reported in 1992 (61) E.L.T. 100 (Tri.) to say that even other levy like cess are also levied and collected as additional duty of customs under CTA, 1975. Shri Sunder Rajan, Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scription applied to heading 22.08 CTA also. The Assistant Collector in respect of this direction, however, found that the claim not having been part of the original refund claim, was barred by limitation. On examining this aspect, it is found that the appellants say that such subsequent modification of the refund claim is valid as it is according to them but a continuation of the original claim which had been filed in time. They have placed reliance on supportive case law, especially, the Tribunal decision in the case of Premier Tyres v. Collector of Customs, Madras -1984 (16) E.L.T. 419 wherein it had been held that amendment to refund claim could be made even after expiry of limitation period if it is necessary for the purpose of determining the question in controversy. However, it is observed that in a subsequent decision of the Tribunal in the case of O.N.G.C. v. Collector of Customs, Calcutta-1988 (34) E.L.T. 248, the Tribunal had considered the same Premier Tyres decision. That was a case of a refund claim under Customs Act initially filed in time where the claim was only relating to CVD. Subsequently, it was followed by another claim for lower basic duty on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, they sent another application claiming concessional rate of basic customs duty under Notification No. 342/76-Cus., dated 2-8-1976. In the said case, the Tribunal also held that an amendment in a claim could be made even after expiry of limitation period if it was necessary for the purpose of determining the question in controversy and if it did not introduce a new cause of action or raise a different case. In the present case, the controversy in the original refund claim was regarding the levy of countervailing duty. The subsequent claim under letter dated 21-9-1981 was not necessary to determine the controversy over countervailing duty. In the second claim, the appellants made out a different case. Further, the Tribunal also held in that case that the Tribunal had no power to waive or relax the period of limitation prescribed under Section 27 of the Act. The appellants submitted the second claim dated 21-9-1981 on a ground different from that of the first refund claim. This was a fresh claim and it cannot be stated that it was filed in amplification or clarification of the first claim. The second claim was received after expiry of six months from the date of payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a fresh claim and as being barred by limitation. Even the Collector (Appeals) could not, as a statutory authority, transgress the limitation prescribed in the statute as already held by the Supreme Court in the case of Miles India (supra) as well as in Collector of Central Excise, Chandigarh v. Doaba Cooperative Sugar Mills (supra). 7. The other contention of the appellants is that the goods being concentrate and not fit for direct human consumption and levy of State Excise duty therein being outside Central Government purview, no additional duty of customs can be levied because Section 3 of CTA would refers to only Central Excise duty and cannot cover State Excise duty. On this aspect a perusal of the Supreme Court decision in the case of Khandelwal Metal Engg. Works v. U.O.I. -1985 (20) E.L.T. 222 would help to clarify the issue. The Supreme Court laid down therein that the charging Section is Section 12 of the Customs Act and not Section 3(1) of Customs Tariff Act. The levy Section 3(1) of the Tariff Act is a supplementary levy in enhancement of the levy charged under Section 12 of the Customs Act and with a different base constituting the measure of the impost. The Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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