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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 ..... 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 mineral oil and spindle HVI oil. HVI spindle oil is also intended for use in the manufacture of agricultural spray oil, and, therefore, the benefit of exemption cannot be denied to them. They have submitted that the intended use in the manufacture of agricultural spray oil is not disputed by the authorities. They have also submitted that the Collector (Appeals) does not dispute in his order that HVI spindle oil satisfy the specificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 44/78 is more specific than the Notification No. 41/78 as Notification No. 44/78 clearly states spindle HVI oil. 6. We have heard both the sides and carefully considered their submissions and perused the records. The appellant's contention is that Notification No. 44/71-CE as amended covers their product HVI spindle oil. This Notification has been superseded in 1984. They had filed classification list for the item spindle HVI oil falling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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. 2. White oils. 5. Pharmaceutical oils. 3. Liquid paraffins. 6. Plasticizer oils. The results of the test report are noted by the Assistant Collector in the Order-in-Original pertaining to HVI spindle oil and the report stated that it satisfied the conditions of Para 1(a)(b)(c)(d) & (e) of the Notification No. 44/71, dated 7-4-1971 as amended by Notification No. 41/82, dated 28-2-1982 which is reproduced below :- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough 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 falling under Item 11(a) and also being utilized for the manufacture of agricultural spray oil can be granted the concessional rate of duty as per Notification No. 44/71, dated 7-4-1971. 8. The Assistant Collector while passing the Order-in-Original dated 25-6-1982 in which he has approved provisionally classification list filed by the appellants has observed that the product satisfies all the criteria of Notification No. 44/71, dated 7-4-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. 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 to enact, either in express words or by reasonable and necessary implication." It is an application of this principle that a statutory notification may not be extended so as to meet a casus omissus. As appears in the judgment of the Privy Council " in Crawford v. Spooner - (1846) 6 Moo PC 1(9) : "....We cannot aid the legislature's defective phrasing of the Act, we cannot add, and mend, and, by construction, make up deficiencies which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 them. 12. In this connection in the ruling of the Delhi High Court as given in Indian Aluminium Company Ltd. and Another v. Union of India as reported in 1983 (12) E.L.T. 349 (Del.), the observations made in Para 14 are relevant :- "......The exemption clause appearing in taxation laws should be reasonably interpreted. It should be given its full and reasonable scope and amplitude so long as violence is not done to the language used. The ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contention that the Notification dated 17-3-1972 has withdrawn the exemption granted by Notification dated 1-3-1969 to component parts used in electric fans was held as untenable. 14. Applying this ratio, we have also to hold that if the Government intended to withdraw the earlier Notification then they would have rescinded or amended or issued the subsequent Notification in supersession of earlier Notification as the Government has not done so, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 methods depending on the technology employed by the factory. The exemption notifications themselves have nothing in them which would support an interpretation that holds that when steam and electricity is produced and used in this way, the fuel that was used to generate them cannot be said to have been used as a fuel in the manufacture or production of finished petroleum product. Neither electricity nor steam are themselves fuels but were produced by the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has urged that each entry in the Notification 75/84 is a self-contained exemption. The principle for interpreting the notification cannot, therefore, be different from interpreting two separate notifications. He has further urged that in the matter of two exemptions available to the assessee it is the option of the assessee as to which exemption will be availed by him. In any case better exemption cannot be denied to the assessee. He has further placed reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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