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TMI Blog2015 (5) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 (O&M), CEA No.63 of 2013 (O&M), CEA No.64 of 2013 (O&M) - - - Dated:- 21-4-2015 - MR. S.J. VAZIFDAR AND MR. G.S. SANDHAWALIA, JJ. Mr. Akshay Bhan, Senior Advocate with Mr. Alok Mittal, Advocate for the appellant Mr. Kamal Sehgal, Advocate for the respondent JUDGEMENT S.J. VAZIFDAR, ACTING CHIEF JUSTICE: These appeals raise a common question of law and are, therefore, disposed of by a common judgment. We will refer to the facts from CEA No.62 of 2013 for convenience. 2. The appeals are filed under Section 35G of the Central Excise Act, 1944 to set aside an order dated 08.05.2012 passed by the Customs, Excise Service Tax Appellate Tribunal (CESTAT) confirming the order of the first appellate authority rejecting the appellant s application for refund of amounts paid as additional duty of excise under the Finance Act, 1999. 3. The appeal is filed contending the following substantial questions of law arise:- (a) Whether the Courts below have erred in their orders dated 28.03.2007 and 08.05.2012, in as much as the provisions of the Notification No.22/2003 exempts the excise duty so imposed upon the appellant. (b) Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional excise duty (AED) in respect of HSD at various rates along with education cess with effect from 09.07.2004 under Section 133 of the Finance Act, 1999. The appellant thereafter filed an application on 07.09.2006 for refund of the duty paid at various times in respect of the HSD. The appellant based the application for refund on the ground that the said notification issued on 31.03.2003 also exempted the AED levied on HSD under Section 133 of the Finance Act, 1999. The appellant contended that it paid the AED by mistake. The appellant was afforded a hearing in respect of the application. The application was rejected. The rejection was confirmed by the first appellate authority and by the impugned order of the CESTAT. 7. The appellant s contention that the exemption notification dated 31.03.2003 issued under the Central Excise Act also exempted it from payment of duty levied by Section 133 of the Finance Act, 1999, was rightly rejected by the Tribunal as not being well-founded. 8. Section 133 of the Finance Act reads as under:- Section 133-(1) In the case of goods specified in the Second Schedule, being goods manufactured in India, there shall be lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued in respect of other type of tyres as well which also used the same expression duty of excise . Since 1963 special duty of excise was levied inter alia on tyres by various Finance Acts passed from time to time. The question was whether the expression was limited only to basic duty of excise under the Central Excise and Salt Act, 1944 or whether it also covered special duty of excise levied under various Finance Bills and Acts, additional duty of excise levied under the Additional Duty of Excise (Goods of Special importance) Act, 1957 and any other kind of duty of excise levied under a central enactment. Section 32 of the Finance Act, 1979, which was relevant in that case, read as under:- 32. Special Duties of Excise.- (1) In the case of goods chargeable with a duty of excise under the Central Excises Act as amended from time to time, read with any notification for the time being in force issued by the Central Government in relation to the duty so chargeable there shall be levied and collected a special duty of excise equal to five per cent of the amount so chargeable on such goods. (2) Sub-section (1) shall cease to have effect after the 31st day of Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that the expression duty of excise was one of large amplitude and in the absence of any restrictive or limitative words indicating that it was intended to refer only to duty of excise leviable under the Central Excises and Salt Act, 1944, it must be held to cover all duties of excise whether leviable under the Central Excises and Salt Act, 1944 or under any other enactment. The respondents sought to support this contention by pointing out that whenever the Central Government wanted to confine the exemption granted under a notification to the duty of excise leviable under the Central Excises and Salt Act, 1944, the Central Government made its intention abundantly clear by using appropriate words of limitation such as duty of excise leviable ... under Section 3 of the Central Excises and Salt Act, 1944 or duty of excise leviable ... under the Central Excises and Salt Act, 1944 or duty of excise leviable ... under the said Act as in the Notification No. CER-8(3)/55-C.E. dated September 17, 1955, Notification No. 255/77-C.E. dated July 20, 1977, Notification No. CER-8(1)/55- C.E. dated September 2, 1955, Notification No. CER-8(9)/55-C.E. dated December 31, 1955, Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excise in these notifications. We have still to construe this expression - what is its meaning and import - and that has to be done bearing in mind the context in which it occurs. We have already pointed out that these notifications having been issued under Rule 8(1), the expression duty of excise in these notifications must bear the same meaning which it has in Rule 8(1) and that meaning clearly is - excise duty payable under the Central Excises and Salt Act, 1944 as envisaged in Rule 2 clause (v). It cannot in the circumstances bear an extended meaning so as to include special excise duty and auxiliary excise duty. . . . 9. We have already pointed out, and this is one of the principal arguments against the contention of the respondents, that by reason of the definition of duty in clause (v) of Rule 2 which must be read in Rule 8(1), the expression duty of excise in the notifications dated August 1, 1974 and March 1, 1981 must be construed as duty of excise payable under the Central Excises and Salt Act, 1944. The respondents sought to combat this conclusion by relying on sub-section (4) of Section 32 of the Finance Act, 1979 - there being an identical provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (4) of Section 32 or other similar provision. The reference to the source of power in such a case would not be just to Rule 8(1), since it does not of its own force and on its own language apply to granting of exemption in respect of special duty of excise, but the reference would have to be to Rule 8(1) read with sub-section (4) of Section 32 or other similar provision. It is significant to note that during all these years, whenever exemption is sought to be granted by the Central Government from payment of special duty of excise or additional duty of excise, the recital of the source of power in the notification granting exemption has invariably been to Rule 8(1) read with the relevant provision of the statute levying special duty of excise or additional duty of excise, by which the provisions of the Central Excises and Salt Act, 1944 and the rules made thereunder including those relating to exemption from duty are made applicable. Take for example, the Notification bearing No. 63/78 dated August 1, 1978 where exemption is granted in respect of certain excisable goods from the whole of the special duty of excise leviable thereon under sub clause (1) of clause 37 of the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us, it is equally clear that in the notification under section 5-A(1) of the Central Excise Act, 1944, the Government exempted the duty of excise leviable thereon under the provisions specified therein, namely, Central Excise Act, 1944, Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textile and Textile Articles) Act, 1978. The intention was clearly to limit the exemption only in respect of the enactments specified in the notification. The Finance Act of 1999 was not one of them. A plain reading of the notification itself makes it clear that the exemption was not to operate in respect of the additional excise duty levied under the Finance Act, 1999. 11. The judgment squarely applies to the case before us in almost every respect. It is also pertinent to note that the notification is dated 31.03.2003. It was preceded by similar notifications commencing from the year 1994. The notification was extended from time to time. The Finance Act levying the additional excise duty was enacted only in the year 1999, i.e., after first notification of the year 1994. In this regard, it is also pertinent to note the following obs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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