9911796707
TMI Blog1992 (10) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... us special excise duty at the rate of 5% of the basic excise duty plus cess at the rate of 1/8% ad valorem on all the clearances of Kraft Paper which the appellant s unit produced using unconventional raw materials containing more than 50% by weight of pulp, availing concession under Notification 46/83-C.E., dated 1-3-1983 since preceding financial year s clearance in the unit was below 3000 M.Ts. In the course of scrutiny they further found that even for clearance for export to Nepal, the appellant s factory had paid duty at the same concessional rate which was contrary to the provisions of Notification No. 46/83. The visiting officers were of the view that clearances for export to Nepal were liable to duty under S. No. 10 of Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sub-item (1) of item No. 17 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), and containing not less than fifty per cent, by weight of pulp made from bagasse, jute stalks, cereal straw elephant grass (Imperate Cylindrica) mesta (Kenaf) or waste paper cleared far home consumption on or after the 1st day of April in any financial year 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 corresponding entry in column (2) of the said Table, subject to the conditions specified therein. TABLE Description Rate Paper, other than paper boards, cigarette tissue, glassine paper, greaseproof paper, coated pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on various slab basis. Scheme of the predecessor Notification i.e. 128/77-C.E., dated 18-6-1977 was to categorise the small paper mills on the basis of installed capacity of the paper mills. It was only this basis in determining the small-scale character of the paper mills which was sought to be changed by Notification 46/83. There was no other purpose in superseding the earlier Notification 128/77. This position he points out/ comes out clear from the Budget Note as given at para 11.5 - page 107 of CEN-CUS Central Excise Tariff 1983-84 Budget Edition (It is reproduced at page 5 of the order-in-original). For the sake of appreciating the argument of the learned consultant, we reproduce the said Budget Note :- At present small paper mill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the point of view of an Indian manufacturer of excisable goods is as good as for home consumption. Unlike exports to other countries where an Indian manufacturer is not required to pay any excise duty inasmuch he has the facility to either export the goods under bond without payment of duty under Rule 13 of the Central Excise Rules or under rebate of whole of duty in terms of Rule 12 ibid, duty is required to be paid by Indian manufacturer in case of exports to Nepal as he is required to pay duty in respect of clearances for home consumption. It is his Majesty s Government of Nepal to whom collection of excise duty is paid by the Government of India under a treaty between the two countries. In other words, rebate of duty is given not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y entered into between India and the Government of that country, provide for payment to the Government of that country an amount not exceeding the duty of excise paid on such goods which are exported out of India to that country." Procedure for export to Nepal, he submits, is governed by that sub-rule simply because the rate of duty is not granted to a manufacturer in India, export to Nepal does not cease to be an export. He, therefore, submits that the impugned order is correct in law and on facts and the appeal deserves to be dismissed. 6. We have carefully considered the pleas advanced on both sides. Purpose of the Notification 46/83 no doubt is to extend benefit of concessional rate of duty to small scale paper mills. It is also tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed JDR, no doubt is left that export to Nepal is an export and not home consumption, as contended by the learned consultant for the appellant. Practice of Calcutta-1 Collectorate pointed out by the learned consultant also does not appear to advance the case of the appellant; that is in the context of Notification 85/85 and 77/85. It is not in the context of Notification 46/83. Further, practice in one Collectorate cannot be considered as an All India practice. 7. Reliance placed by the learned consultant on Tribunal s decision in the case of CCE v. G.K, Auto Industries is also not relevant to the facts and circumstances of this case. Firstly, reliance placed by the learned consultant is on the minority view. The majority view is against t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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