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TMI Blog1990 (12) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Assistant Collector, Madras. The Assistant Collector in the Order-in-Original has approved classification of item as 'Spindle HVI Oil' from 1982 cleared to L. 6 holder, under Chapter X procedure for use in the manufacturing of agricultural spray oil, under Item 11A(3)(b) at the rate of Rs. 1149.50 per M.T. with appropriate special excise duty as per the Notification No. 44/78, dated 1-3-1978 as amended and from 1-3-1986, the Assistant Collector has also approved the classification of the item at the rate of Rs. 1207/- per M.T. as per the Notification No. 75/84, dated 1-3-1984 as amended by Notification No. 120/86, dated 1-3-1986. Thereby, he has also demanded the differential duty due from the appellants for clearance of spindle HVI oil used in the manufacture of agricultural spray oil for the said period. 2. Collector (Appeals) after hearing the appellants has confirmed the order of the Assistant Collector. 3. The appellants have, in this appeal, submitted that the condition under Notification No. 44/71, dated 7-4-1971 is applicable to the mineral oil so long as HVI spindle oil satisfies the specifications stipulated in the Notification in relation to such miner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew Delhi v. Union of India and Others -1979 (4) E.L.T. (J 147) Para 10. 6. Collector of Central Excise, Madurai v. Shree Palraj Paper Straw Board Mills Pvt. Ltd. -1990 (15) ETR 487. 7. Star Paper Mills Ltd. v. Union of India Others -1988 (34) E.L.T. 542 (Del.) 8. Bombay Chemicals Pvt. Ltd. v. Appellate Collector of Customs -1990 (49) E.L.T. 190 (Bom.) 9. Foremost Dairies Ltd. v. Collector of Central Excise, Meerut -1987 (27) E.L.T. 437 (Tribunal). He further submitted that the Notification No. 41/82 is merely a clarificatory Notification and it does not in any way take away the benefit of the earlier Notification. 5. Shri L. Narasimha Murthy, learned JDR submitted that there was no anomaly in the Notification. Both the Notifications stipulate the same conditions with same products. Notification No. 44/78 clearly applies to mineral oils commonly known as spindle HVI oil. Therefore, both the Notifications have to be read together and it cannot be said that the Government has issued superfluous Notification. He submitted that the citations relied upon by the appellants are distinguishable and not applicable to the facts of this case. He submitted that Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below the rank of an Assistant Collector of Central Excise that the mineral oil is intended to be used in the manufacture of agricultural spray oil; (3) the procedure set out in Chapter X of the Central Excise Rules, 1944 is followed." Notification No. 44/78-CE, dated 1-3-1978 "Partial exemption to spindle HVI Oil:- In exercise of the powers conferred by sub-rule (1) of Rule (8) of the Central Excise Rules, 1944, the Central Government hereby exempts mineral oil commonly known as spindle HVI oil, falling under Item No. 11A 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 in excess of one thousand one hundred and forty-nine rupees and fifty paise per metric tonne, subject to the following conditions, namely :- (i) it is proved to the satisfaction of an officer not below the rank of an Assistant Collector of Central Excise that such oil is used in the manufacture of any of the commodities specified in the Schedule thereto annexed and (ii) the procedure set out in Chapter X of the Central Excise Rules, 1944 is followed. Schedule 1. Petroleum Sulphonates. 4. Agricultural spray oils. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndle oil cleared by the appellants is having the required specifications as given under the Notification No. 44/71, dated 7-4-1971 as amended, samples of the product had been drawn and sent to the Chemical Examiner for conducting the test. It has been noted that the product conform to the specification and the conditions as stipulated in the Notification No. 44/71, dated 7-4-1971 as amended. It is noted by Assistant Collector that though the test report confirms that the impugned goods are having specifications and conditions as specified in the Notification No. 44/71, dated 7-4-1971, as amended, however as Notification No. 44/78, dated 1-3-1978 was specific in nature in regard to spindle HVI oil falling under TI 11(a), while Notification No. 44/71, dated 7-4-1971 though in general application to any 'mineral oil' (falling under 11(a), the Assistant Collector has held that the conditions stipulated in the Notification No. 44/78, dated 1-3-1978 is more specific to the product in question and hence the assessee shall pay duty accordingly. 7. The question that arises for consideration is as to whether the item HVI spindle oil having all the characteristics of mineral oil and falli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at - 1978 (2) E.L.T. (J 350) Para 5, Supreme Court has held that "........It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom, the matter is different but that is not the case here. In this connection we may refer to the observations of Lord Watson in Salomon v. Salomon and Co. - 1987 AC 22 at p. 38: "Intention of the legislature is a common but very slippery phrase, which, popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications. The Collector (Appeals) has merely extended in his order the benefit of Notification No. 175/86-CE to the respondents. Legally, there is no basis in the plea of the appellant that the respondent could not be forced to avail of the benefit of Notification No. 138/86-CE when they are eligible for the benefit under Notification No. 175/86-CE also and when this benefit under either of the two notifications is available to them under law. Therefore, there is no infirmity in the order of the Collector (Appeals)." 11. The other citations relied upon by the learned Adviser have already been noted in the Supreme Court's ruling as referred to in the case of M/s. Hemraj Gordhandas v. H.H. Dave, Assistant Collector of Central Excise Customs, Surat Others as reported in 1978 E.L.T. (J 350) and it will be repetition of the same. However, it is to be observed again that where there are two Notifications available for the party and for the assessee and if the assessee is able to establish that their product is satisfying the more advantageous Notification then the exemption provided therein cannot be denied on the ground that other less advantageous Notification is more specific to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f two interpretations of a provision are permissible and one interpretation may render the provision subject to serious constitutional challenge, the other interpretation ought to be preferred. In other words, the provision must be read down and given a restricted meaning to protect it from a legal challenge as to its vires or validity." 13. In the case of Swishflo Private Limited v. N.R. Jadav as reported in 1979 (4) E.L.T. (J 153), the High Court of Gujarat has allowed the writ petition of the assessee and accepted the submissions made by them that there is nothing to indicate that the exemption granted by Notification dated 1-3-1969 to electric motors used as component parts in the manufacture of electric fans is taken away by Notification dated 17-3-1972. The Court has also accepted the contention that had the intention of the Government been so, they would have rescinded, amended or issued the Notification dated 17-3-1972 in supersession of their earlier Notification. On the other hand, another subsequent Notification dated 15-9-1973 enlarges the scope of exemption by including electric fans on which the duty of excise is leviable "whether in whole or part". Therefore, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... room for any intendment but regard must be had to the clear meaning of the words. If the tax payer is within the plain terms of an exemption he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. In a Court of law or Equity what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact either in express words or by reasonable or necessary implication." 16. In the case of Indian Oil Corporation, Barauni v. Collector of Central Excise, Patna reported in 1985 (19) E.L.T. 145 (Tribunal) it has been held at Paras 3 and 4 as follows :- "3. The fuel oil used as fuel for production of steam and electricity can be said to have been used as fuel within the same premises for the production and manufacture of finished petroleum products. Nobody has stated that the steam and electricity has not been used for the production of finished petroleum products in the refinery; to be sure, the process is a trifle roundabout but modern technology being what it is, it would be folly to require that only a particular kind of use should qualify when we know that there can be various me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oils generally but it would have been to the effect namely "mineral oils other than HVI spindle oil". 17.2 It is also to be noted that in point of time Notification 44/71 is a much older notification than Notification 44/78. In view of the sheer difference of time regarding issue of the two notifications the proposition put forward by the learned JDR, that the two notifications should be read together is not tenable for that reason too. 17.3 In support of the aforesaid proposition, learned JDR draws attention to Notification 75/84 which he points out has both the entries namely 11A.07 and 11A.17 [S. Nos. 31 and 50 respectively of the said notification (as amended)]. He submits that both the entries being part of the same Notification 75/84, dated 1-3-1984 the two entries should be interpreted harmoniously. If Entry 11A.07 relating generally to mineral oil is interpreted to include HVI spindle oil, Entry 11A.17 of the said notification would be redundant. Such an interpretation, therefore, according to the learned DR should not be placed on the said two Entries of the Notification 75/84. 18. Countering this plea, the learned counsel Shri N.V. Raghavan Iyer for the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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