9911796707
TMI Blog1995 (8) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... lants went in appeal against this order. The Appellate Collector in his Order No. 2226 to 2228/76, dated 25-10-1976 passed a common order in which inter alia on the issue of FPEC exemption, the Appellate Collector agreed with the method adopted by the appellants and further explained in his order the manner in which it was to be operated. He also remanded the case back to the Assistant Collector on certain other issue regarding deduction from the assessable value. In the de novo proceedings, the Assistant Collector passed order on 6-7-1978 in which with regard to the FPEC exemption, the Assistant Collector allowed the abatment of the full amount of FPEC from the wholesale cash price and then calculated the duty payable. The appellants again went in appeal before the Collector (Appeals) against this order of the Assistant Collector. The Collector (Appeals) passed the impugned order thereafter, wherein in regard to FPEC he agreed that the method adopted by the Assistant Collector was without authority of law because the exemption granted under the notification was equivalent to the duty on the amount of FPEC and did not permit a deduction of the FPEC itself. The Collector (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .). On the merits of the claim for exemption under Notification No. 108/74, the learned Counsel contended that the case pertaining for the period earlier to October, 1975 and was governed by old Section 4 of the Central Excises and Salt Act, 1944 prior to its amendment. The learned Chartered Accountant submitted that the Collector (Appeals) went wrong in relying on the Explanation below Section 4(4)(d)(ii) as inserted by the Finance Act, 1982. The Collector (Appeals) should have first determined the assessable value and appropriate duty payable and should have then reduced this duty by the amount equivalent to duty of FPEC as prescribed in Central Excise Tariff Schedule. The learned Chartered Accountant pointed out that there is a decision of Government of India on this very notification in its Order in Review No. 248 of 1978 dated 30-3-1979 a copy of which is in the paper book. In this order, the Government of India has held in the same manner as has been done by the Appellate Collector earlier in his order dated 25-10-1976 in working out the exemption under the Notification No. 108/74. The learned Counsel further relied upon the Delhi High Court decision in the case of I.T.C. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt had held that permissible deductions are to be first reduced from the cum-duty price while arriving at the assessable value. The case law on the subject cited by the appellants does not cover the present situation. 4. The submissions made by both the parties have been carefully considered. Taking up the contention of the appellants that the Collector (Appeals) in present impugned order could not in law have overruled the earlier order of the Appellate Collector, we find a lot of force in this argument. In his Order No. 2226 to 2228/76, dated 25-10-1976, that authority had held that the amount pool equalisation fund contribution `as given in Column 3 of Notification No. 108/74 is not a permissible deduction from the value of the goods arrived at under Section 4 of Central Excises and Salt Act, but it is the duty of excise leviable on the pool equalisation fund which has to be deducted from the duty on the assessable value. The Appellate Collector further observed that in his order the Assistant Collector had permitted the deduction of 15% of the FPEC from the duty calculated on the assessable value and the Appellate Collector held this method adopted by the Assistant Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order dated 18-11-1982 expressly holding that the claim has to be treated in time . It is further admitted to the respondent that no appeal was filed against that Order of the Collector (Appeals) which held the claim as within time, by the department. Thus in my opinion the said Order of the Collector (Appeals) dated 18-11-1982 holding the refund claim within time whether right or wrong became final and cannot be raised again in readjudication as held by this Tribunal in the case of Kerala State Detergents and Chemicals Ltd. v. Collector, supra. The observations of the Assistant Collector in his readjudication Order dated 7-1-1985 that the said Order dated 18-11-1982 passed by the Collector (Appeals) in fact directed him to examine the claim and pass necessary order is partly correct. But it is settled law that Order of the Appellate Authority is to be read as a whole and not in part. From a perusal of the said Order dated 18-11-1982 of the Collector (Appeals) it would appear that the only issue before him was as to whether the Assistant Collector was right in rejecting the part of the claim of the appellants as time-barred and the learned Collector after examining the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts fertilisers of the description specified in column (2) of the Table below falling under Item No. 14HH of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty of excise leviable thereon as is equivalent to the duty calculated on the value specified in the corresponding entries in column (3) of the said Table. TABLE S. No. Description Value per metric tonne 2. The exemption contained in this notification shall apply only to a manufacturer who, before clearing the fertiliser specified in column (2) of the Table, undertakes to credit the amount specified in the corresponding entry in column (3) of the said Table into the Fertiliser Pool Equalisation Fund in accordance with the directions issued by the Central Government, and produces, within sixty days of the date of clearance of the said fertiliser, sufficient proof to the satisfaction of the proper officer that the amount has been so credited. 3. Nothing contained in this notification shall apply to any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There was no justification to read Section 4 and the notification as dovetailing into each other, to consider the effective duty payable as the excise duty `payable within the meaning of Section 4(4)(d) and to determine the assessable value and the excise duty payable as if a reduced rate of duty for these goods had been enacted in the First Schedule itself". Again on Section 4 unamended the Supreme Court judgment in the case of Bata Shoe Co. v. Collector of Central Excise, 1985 (21) E.L.T. 9 is also relevant wherein the Supreme Court held that before the question of availability of exemption under a notification of goods leviable to duty ad valorem, the first essential step is to determine the value of the article in the manner prescribed in Section 4 of the Act. The Court observed that the fact that on such a computation, the article may ultimately be found to be exempted from excise duty (as was the result in that case) does not have any bearing on the question of applicability of Section 4 of the Act for determining its `value for the purposes of duty. The expression `for the purposes of duty occurring in Section 4, the court held, has a wide import. The recent Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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