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TMI Blog2010 (12) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... tandis apply in respect of the interest too? [3] Whether in the facts and the circumstances of the case, the learned Tribunal is justified in the eyes of law in holding that section 7(4) of the Sugar Export Promotion Act, 1958 does not confer the jurisdiction nor empower and authorize the Revenue to claim and recover the interest, under the Sugar Export Promotion Act, 1958, as is empowered and authorized under the Central Excise Act, 1944? [4] Whether in the facts and the circumstances of the case, the learned Tribunal is justified in the eyes of law in holding that the penal interest provisions of the Central Excise Act, 1944 have not been made applicable in the said Sugar Export Promotion Act, 1958? [5] Whether the words - "including" as well as "any other sum" in the provision of section 7(4) of the Sugar Export Promotion Act, 1958, confers the jurisdiction, power and authority, empowering the Revenue to claim and recover the interest? 2. The respondent-assessee is engaged in the manufacture of sugar. In addition to duty leviable under the Central Excise Act and the Additional Duties of Excise (Goods of Special Importance) Act, 1957, a manufacturer of sug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as such, levy of interest would stand included in the said provision. It was further contended that interest under Section 11AB of the Central Excise Act is a necessary concomitant of delayed payment of duty. Section 11AB of the Act is not a penal provision, but is a provision for collection of duty and therefore, the provisions of Section 11AB of the Act would apply with full force in respect of sugar and cess recoverable under the Sugar Export Promotion Act. 7. On the other hand, Mr. P. M. Dave, learned advocate appearing on behalf of the respondent invited attention to the provisions of Section 7 of the Act, to submit that the said section does not provide for payment of any interest in respect of delayed payment of duty. It was further submitted that for the purpose of levy of interest, there has to be a substantive provision in the enactment and that, there being no such provision for payment of interest on respect of delayed payment of duty under the Sugar Export Promotion Act, the Tribunal was justified in setting aside the demand of interest. 8. In support of his submissions, the learned advocate placed reliance upon decisions of the apex court in the case Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from duty, shall, so far as may be, apply in relation to the levy and collection of the duty of excise or any other sum referred to in this section as they apply in relation to the levy and collection of the duty on sugar or other sums of money payable to the Central Government under that Act or the rules made thereunder." 10. On a plain reading of the aforesaid provision, it is apparent that sub-section (1) thereof provides for levy of a duty of excise at the rate of rupees forty-five and fifty-five naye paise per quintal. Sub-section (2) thereof lays down that the duty of excise referred to in sub-section (1) shall be in addition to the duty of excise chargeable on sugar under any other law for the time being in force, and provides for the manner in which the payment of duty is to be made. Sub-section (3) thereof provides for the consequences of non-payment of the whole or any part of the duty referred to in sub-section (2) and provides for imposition of penalty in case of default. Sub-section (4) thereof which is relevant for the purpose of the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... breach of the provisions of the said Act has not been made penal or an offence and no power has been given to confiscate the goods. It only provides for application of the procedural provisions of the Central Excise Act, 1944 and the Rules made thereunder. When the breach of the provisions of the Act is penal is nature or a penalty is imposed by way of additional tax, the constitutional mandate requires a clear authority of law for imposition of the same. The authority of law to levy or collect tax as postulated in Article 265 has to be specific and explicit and expressly provided. In the said case, the Supreme Court was dealing with the question as to whether penalty could be imposed where there was no specific provision for imposition of the same. In the present case, the Court is concerned with the question as to whether in the absence of any specific provision providing for levy of interest, interest can be recovered under the provisions of sub-section (4) of Section 7 of the Sugar Export Promotion Act, 1958. 12. In this regard, it may be germane to refer to the decisions on which rehance has been placed by the learned advocate appearing on behalf of the respondent. 13.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Khemka & Co. it must be held that the substantive law that the States' sales tax authorities must apply is the Central Act. In such application, for procedural purposes alone, the provisions of the State Act are available. The provision relating to interest in the latter part of Section 9(2) can be employed by the States' sales tax authorities only if the Central Act makes a substantive provision for the levy and charge of interest on Central sales tax and only to that extent. There being no substantive provision in the Central Act requiring the payment of interest on Central sales tax the States' sales tax authorities cannot, for the purpose of collecting and enforcing payment of Central sales tax, charge interest thereon." 14. In V.V.S. Sugars v. Government of Andhra Pradesh and others, (1999) 4 SCC 192, the question before the Supreme Court was whether any interest could be levied on arrears of tax under sub-rule (4) of Rule 45 of the Andhra Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1961. The Court held that the principal Act is a taxing statute and therefore, must be interpreted as it reads, with no additions and no subtractions, on the ground of le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise and Salt Act (now known as Central Excise Act, 1944) was in force. Therefore, instead of separately incorporating the provisions relating to levy and recovery of duty under the 1944 Act and the rules made thereunder, including those relating to the refund and exemption from duty, the provisions of the 1944 Act were made applicable for levy and collection of duties of excise on any produce specified in the Second Schedule to the 1966 Act. A similar provision was embodied in the 1983 Act in the form of Section 3(4). However, there is nothing in the language of Section 15(2) of the 1966 Act or Section 3(4) of the 1983 Act from which it can be inferred that it authorises the Central Government to charge interest on the delayed payment of cess. Section 11AA was inserted in the 1944 Act with effect from 26-5-1995 by amending Act No. 22 of 1995. However, no corresponding amendment was made in Section 15(2) of the 1966 Act or Section 3(4) of the 1983 Act so as to empower the Central Government to charge interest in the case of default in the payment of cess. Therefore, we are inclined to agree with Shri Batta that Section 11AA of the 1944 Act cannot be invoked by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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