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TMI Blog1994 (12) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... olman of India Ltd. v. CCE - reported in 1992 (63) E.L.T. 148 (Tribunal) and in case of Sarda Service Corporation v. CCE - reported in 1992 (62) E.L.T. 173. There is, he also conceded, no contrary judgment of Tribunal or any Court. 2.2 The Learned Advocate however submitted that basic issue has not been fully appreciated in these judgments which are sub-silentio. Rule 57A as well as notification issued thereunder refers to Specified duty . Special excise duty is a Specified duty . Rule 57B stipulates that notwithstanding anything contained in Rule 57A, credit of specified duty on inputs may, in a case where the duty on inputs has been paid under a notification issued under Rule 8(1) or Section 5A(1) of the Act exempting such inputs from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed at the rate otherwise applicable to such inputs but for the said Notification. The proviso to the said Rule 57B lays down that such a Notification should provide for grant of credit for such inputs at such higher rates as may be specified. Special Excise Duty is not covered by any such exemption Notification. What is exempted under Exemption Notification 175/86, dated 1-3-1986 as subsequently amended is the duty of excise leviable which is specified in the Schedule to the Central Excise Tariff Act, 1985. Such a duty is the basic excise duty. Special excise duty is not specified in the said Schedule and it is levied under the provisions of the Finance Act each year. It is levied as a percentage of the effective amount of the basic exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite of exemption granted under notification, at a higher rate. Para 5 of this notification in other words, says that even though certain goods may have paid duty at a concessional rate by virtue of this notification, these would be eligible, in terms of rule 57B, to a credit at a higher rate when used as inputs in the manufacture of finished excisable goods. In other words, credit at the normal rate such as is charged in case of other goods. 6. Notification No. 175/86, dated 1-3-1986, as amended, has been issued under Rule 8 of Central Excise Rules, 1944, simpliciter without reference to any other statute. This notification grants exemption, to the extent indicated therein, of such of the duty of excise leviable thereon on specified e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) would become applicable empowering the Central Government to grant exemption from payment of special duty of excise, but when the Central Government exercises this power, it would be doing so under Rule 8(1) read with sub-section (4) of Section 32 or other similar provision. The reference to the source of power in such a case would not be just to Rule 8(1), since it does not of its own force and on its own language apply to granting of exemption in respect of special duty of excise, but the reference would have to be to Rule 8(1) read with sub-seciton (4) of Section 32 or other similar provision. 6.3 Since the Notification 175/86 as amended has been issued under Rule 8(1) of Central Excise Rules, the grant of credit at a higher rate to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout reference to its proviso. 7.2 If legislature thought it fit not to grant such higher rate in case of special excise duty, there is, in my view, nothing more to be said. If however, it was a result of omission, it is not for the Courts to supply the deficiency. Assuming that similar concession ought to have been, but has not been, provided for in the statute, it cannot be so provided for by Court as to do so would be to take it away from the field of construction and push it up to the domain of legislation. Assuming that there is causus omissions, the defect cannot be remedied by the Courts. 7.3 The simple position however, is that the notification has not travelled beyond Rule 57B, but, by virtue of its being a Notification under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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