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TMI Blog2016 (2) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... equiring the Central Excise Duty for the units manufacturing rosin and turpentine without the aid of power, except for the purpose of using electricity to pump, for lifting up water to overhead tanks; for the period from 27.05.1994 to 28.02.2006. 2. As per the petitioner, there are two methods of manufacturing rosin and turpentine from Oleo Pine Resin. One method is the vacuum chemical treatment process which uses power in almost all the processes and the second method is the 'Bhatti process' which is entirely manual except for the use of power to operate the pump for lifting up water to the storage tank for the purpose of condensation. 3. It is contended that the number of units adopting the first method is around 10 whereas majority of the units (i.e., about 300) are using the latter method and confining the use of power only for lifting of water to overhead tanks for condensation of turpentine vapours collected as liquid turpentine in tanks. 4. It is contended that rosin and turpentine oil manufactured without the aid of power were exempted from Central Excise Duty vide Notification No.179/77-CE dated 18.06.1977. The Tax Research Unit, Department of Revenue, Ministry of Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t requests of All India Manufacturers Organization for reconsideration of the issue and to extend the benefit of Section 11C had been examined and the case was not found fit for issuance of 11C Notification. In this premise, the petitioners have filed the present petition seeking quashing of the decision communicated by the letter dated 30.09.2014 that the case has not been found fit for issuance of Notification under Section 11C and, further, for a mandamus for directing the respondents to issue the Notification under Section 11C of the Central Excise Act, 1944 for extending the benefits of not recovering the Central Excise Duty from the units manufacturing rosin and turpentine without the aid of power, except for the purpose of using electricity to pump water to overhead tank, for the period from 27.05.1994 to 28.02.2006. 11. Section 11C of the Act reads as under:- "11C. Power not to recover duty of excise not levied or short-levied as a result of general practice. - (1) Notwithstanding anything contained in this Act, if the Central Government is satisfied- (a) that a practice was, or is, generally prevalent regarding levy of duty of excise (including non-levy thereof) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices were issued to the petitioners as well as to one M/s Gurukripa Resins Pvt. Ltd., Nagpur. 14. M/s Gurukripa Resins Pvt. Ltd. had challenged the show cause notice but the Deputy Commissioner as well as the Commissioner (appeals) held against M/s Gurukripa Resins Pvt. Ltd. The Custom Excise & Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal) by its judgment dated 14.01.2004 allowed the appeal by M/s Gurukripa Resins Pvt. Ltd. 15. The Tribunal held that the clarification letter dated 16.01.1978 was binding on the Department and on Commissioners (appeals). It further held that in the process of manufacture no power is used and the fact that water is pumped up to the overhead tanks does not amount to manufacture with the aid of power, hence, M/s Gurukripa Resins Pvt. Ltd. was entitled to the benefit of the exemption. 16. The petitioners likewise had challenged the show cause notices issued to the petitioners. The Commissioner, Central Excise, Raigad following the judgment of the Tribunal in M/s Gurukripa Resins Pvt. Ltd. held that it would be incorrect to hold that the circular dated 27.05.1994 had withdrawn the clarification issued vide letter dated 16.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat of the petitioner's unit, the petitioner cannot, thus, seek the benefit of quashing of the decision communicated by the Ministry of Finance by letter dated 30.09.2014. 22. Furthermore, as is evident from reading of Section 11C of the Act, the said Section grants a discretionary power to the Government to issue or not to issue such a notification. The said provision does not mandate the Government to issue such a notification. The said provision only empowers the Government to issue such a notification. It is not obligatory on the Government to issue such a notification in all circumstances. In facts and circumstances, the Government may or may not issue such a notification even though the Government may be satisfied that a notification is required to be issued. 23. It is stated in the counter affidavit that the policy of the Government is not to issue a notification under Section 11C when it benefits only a few assessees. The policy, as stated, is that when a large section of trade is affected and relief is proposed to be given, notification under Section 11C is issued. When only a few assessees would benefit then the notification is not issued. Discretion of the Government i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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