9911796707
TMI Blog2001 (10) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... xtraction, dyeing, stentering, heat-setting etc.) fabrics with the grey fabrics received from their sister unit (100% EOU) working at Raipur, and exports the same. The processed fabrics so manufactured and exported are all-wool worsted fabrics (Sub-heading 5111.22 of the Schedule to the Central Excise Tariff Act, 1985), wool-silk fabrics (SH 5111.22) and poly-wool fabrics (SH 5513.22). Woolworth s 100% EOU at Butibori is engaged in the manufacture of various kinds of yarns viz. all-wool yarn and poly-wool yarn falling under Chapters 51 and 55 of the Schedule to the Central Excise Tariff Act), and export thereof. 2. 100% EOUs like the appellants units at Butibori-approved as hundred percent export-oriented undertakings by the competent authority under the Industries (Development and Regulation) Act and the Rules thereunder, and holding warehouse licence and manufacture licence issued by competent authorities under Sections 58 and 65 respectively of the Customs Act are, under the EXIM policy of the Central Government, entitled to numerous concessions such as exemption from levy of Customs duty on imported raw materials etc. They are permitted to sell 25% of their production in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitative limits prescribed by the Development Commissioner in accordance with the Exim Policy. When they did so, they paid, as duty of excise on the goods (for purposes of the Proviso to Section 3(1) of the Central Excise Act), 50% of the basic customs duty leviable under Section 12 of the Customs Act, availing the exemption under Notification No. 101/93-C.E. or Notification No. 2/95-C.E., as applicable, and they filed with the department RT-13 returns under Rule 100F of the Central Excise Rules for their monthly clearances of the goods. Upon scrutiny of the returns, the department felt that the assessees had short-paid duty. In the department s view, the assessees ought to have also paid additional duty of customs (Countervailing duty - CVD) leviable under Section 3 of the Customs Tariff Act, 1975 to the extent of the sum of 50% each of (i) Basic Excise Duty under Section 3 of the Central Excise Act (ii) Additional Excise Duty under Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and (iii) Additional Excise Duty under Section 3 of the Additional Duties of Excise (Textiles Textile Articles) Act, 1978. Therefore, show cause notices [SCNs] were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of three SCNs covering the periods, September, 1994, October-December, 1994 and January-March, 1995 and the same has been challenged in Appeal Nos. E/902-904/96. Sh. K.C. Singh s Order-in-Original No. 111-115/97 was passed against the same party in adjudication of five SCNs (three of them with corrigenda) covering the periods, April-June, 1995, July-October, 1995, November, 1995-January, 1996, February-May, 1996 and June-July, 1996 and the same is under challenge in Appeal Nos: E/929-933/98. His Order-in-Original No. 116-120/97 was passed against M/s. Woolworth in adjudication of five SCNs (one of them with corrigendum) covering the periods, September 1995, January 1996, February-June 1996, September 1996-February 1997 and March-June 1997 and the same has been impugned in Appeal Nos. E/924-928/98. The appellants have particularly challenged the inclusion of special customs duty in the demand of duty confirmed by Sh. K.C. Singh, Commissioner, in his two orders-in-original. This challenge is on the ground that there was no demand of special customs duty in the relevant SCNs. 6. Examined the records and heard both sides. 7.1 Ld. Advocate, Sh. V. Sridharan submitted that the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e [in conjunction with the Customs Act, 1962 ] any other law for the time being in force in the aforesaid context and that the Customs Tariff Act fell within the meaning of the expression so included. The amendment took effect from 1982 covering the entire period of dispute. Nonetheless, in the learned Advocate s view, the appellants case was not practically affected by such retrospective amendment in the absence of similar amendments to Notifications 101/93-C.E. and 2/95-C.E. The Central Government, by Notification No. 38/99-C.E., dated 16-9-99 did amend Notification No. 2/95-C.E. thereby adding the expression any other law for the time being in force conjunctively with the Customs Act in the substantive context of the latter Notification. But, Counsel hastened to add, such amendment was only prospective and hence did not have any impact on the appellants case for the period of dispute. In this connection, Counsel relied on the Government Circular dated 24-9-99 issued in File No. 345/12/99-TRU, which, in the light of the Apex Court s judgment in Hyderabad Industries (supra), clarified that any duties of customs other than the basic customs duty leviable under Section 12 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 50% in terms of Notification No. 101/93-C.E. or 2/95-C.E. They did not pay any amount towards the CVD (additional customs duty) element of such excise duty, which, under Section 3 of the Customs Tariff Act, was equal to the duties of excise for the time being leviable on like goods manufactured in India. The appellants have not disputed that goods identical to those cleared from their EOUs to DTA were actually manufactured in India and that basic excise duty and additional excise duties were leviable on them under the Central Excise Act and the 1957 1978 Acts respectively during the relevant period. Therefore, ld. DR submitted, the appellants were liable to pay as CVD an amount equal to the sum of 50% each of these duties of excise in terms of Notification Nos. 101/93-C.E. or 2/95-C.E. According to the DR, the amendment to Notification No. 2/95-C.E0., brought about by Notification No. 38/99-C.E., should be considered to be retrospective in operation so that the legislative purpose underlying the retrospective amendment of the proviso to Section 3(1) of the Central Excise Act was not defeated. The DR pointed out that the Customs Tariff Act fell within the meaning of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975). It is indisputable that the Customs Tariff Act, 1975 is well within the meaning of the phrase any other law for the time being in force and hence the CVD leviable under Section 3 of that Act on like goods if imported into India will also enter into the computation of the duty of excise chargeable, under the above amended provision of Section 3(1) of the Central Excise Act, on products of 100% EOUs cleared to DTA. The above amended provision of law is deemed to be in operation since 11-5-1982 and the same covers the entire period of dispute involved in these appeals. Therefore, there can be no controversy over the liability of the appellants to pay (in addition to the basic customs duty element) the CVD element of the measure of duty of excise chargeable on their products (sold in DTA) under the proviso to Section 3(1) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 2000 received the assent of the President). Without the latter (retrospective) amendment, the former would have been otiose in the light of the Supreme Court s ruling in Hyderabad Industries (supra) that the additional customs duty leviable under Section 3 of the Customs Tariff Act was not a levy under Section 12 of the Customs Act. In other words, the retrospective amendment of the proviso to Section 3(1) of the Central Excise Act made it possible for the Revenue to carry into effect the provisions of Notification No. 2/95-C.E. as amended by Notification No. 38/99. However, Parliament did not provide for retrospective operation of the amendment in Notification No. 2/95-C.E., though it was open to Parliament to do so. We, therefore, are unable to apply the aforesaid amended provision of Notification No. 2/95-C.E. to the appellants case involving periods prior to 16-9-99. 9.3 At the same time, the legislative intent behind the retrospective amendment of the proviso to Section 3(1) of the Central Excise Act is obviously that, in respect of products of 100% EOUs like the appellants, the CVD leviable under the Customs Tariff Act on like goods if imported into India sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
