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TMI Blog2017 (3) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... ification took shape in a little over six months from the date of the policy decision. It is nearly after four years that the Industrial Unit commences the commercial production. By the time, the industrial unit was set up, in fact, the appellant must be attributed with clear notice of the express terms of the Notification, which does not provide for exemption from NCCD. The appellant cannot be permitted to raise a plea of promissory estoppel in the facts of this case based on the policy decision dated 07.01.2003 as there is neither pleading nor materials placed to support a finding that the appellant had altered its position acting on a promise as is said to be contained in the policy decision dated 07.01.2003. Is the Notification Contrary to the Policy and Whether the Notification Being An Implementing Notification is entitled to beneficial interpretation? - Held that: - there is no challenge to the Notification. The justification for the omission to challenge is stated to be that if the appellant challenges the Notification, it would amount to questioning the benefits, which the appellant is admittedly entitled to. It is pointed out, however, that the reliefs sought by wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proceeding. Appeal dismissed - decided against appellant. - Special Appeal No. 625 of 2014 - - - Dated:- 16-3-2017 - Hon ble K.M. Joseph, C.J. And Hon ble Alok Singh, JJ. Mr. Arshad Hidayatullah, Senior Advocate assisted by Mr. Makrant Joshi and Ms. Puja Banga, Advocate for the appellant Mr. H.M. Bhatia, Advocate for the respondent JUDGMENT K.M. Joseph, C.J. Appellant is the petitioner. The writ petition was filed seeking the following reliefs: A. An appropriate writ order or direction that this Hon ble Court declaring that the petitioners are entitled to avail of the exemption under Notification No. 50/2003 dated 10th June 2003 in respect of the exemption contained therein from the levy of the duty of excise known as NCCD for a period of ten years calculated from the date of commencement of commercial production by the Petitioners; B. To issue a writ of prohibition or an appropriate writ direction or order prohibiting the Respondent No. 3 and / or 4 from adopting any proceedings pursuant to impugned show cause notice dated 26th August 2011 and to quash the impugned show cause notice dated 26th August 2011; C. To issue a writ of mandamus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Finally, we may also notice paragraph 5, which reads as follows: The Ministry of Finance Company Affairs (Department of Revenue), Ministry of Agro Rural Industries, Ministry of Textiles, Minsitry of Food Processing Industries, Ministry of Small Scale Industries, etc. are requested to amend Act /rules / notifications, etc, and issue necessary instructions for giving effect to these decisions. 5. There is no dispute that the industrial unit set up by the appellant falls in the Pant Nagar Industrial Area situated within District Udham Singh Nagar. Within a little over six months of the Office Memorandum, a notification was issued on 10.06.2006. Since much terms on the terms of the Notification, we deem it appropriate to refer to the relevant part of the same: GENERAL EXEMPTION NO. 42 Exemption to goods other than specified goods cleared from units located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area of Uttarakhand and Himachal Pradesh.-In exercise of the powers conferred by sub-section (1) of section 5A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexure 3 purports to be the Audit Objection Report. By Annexure -4 dated 27th February, 2009 and 17th March, 2009, the appellant was required to pay the NCCD and inform the particulars of such payment. Appellant responded by letter dated 25th March, 2009 (Annexure 5). Appellant again reiterated its stand by Annexure 6. It is the case of the appellant that after almost three and half years of the application for registration and after two and half years of the Audit Objection and response, appellant came to be served with Annexure-8 Show Cause Notice dated 26th August, 2011, whereby the appellant was called upon the pay NCCS and the cesses. A proposal was also made to impose an equal amount of penalty. Demand was raised for interest also and, thereupon, the appellant filed the writ petition seeking the reliefs, which we have extracted above. The learned Single Judge dismissed the writ petition. 8. We heard Sri Arshad Hidayatullah, Senior Advocate assisted by Mr. Makrand Joshi and Ms. Puja Banga, learned counsel for the appellant and Sri H.M. Bhatia, learned counsel on behalf of respondent nos. 2 to 4. 9. Sri Arshad Hidayatullah, learned Senior Counsel would submit that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. and others reported in (1999) 1 SCC 31 and State of Jharkhnad and others vs. Tata Cummins Ltd. reported in (2006) 4 SCC 31. 11. Next, he would contend that being an implementing policy, the Notification calls for a beneficial interpretation. The Notification intends to stir, encourage and promote economic activity. Therefore, the Notification calls for a liberal interpretation. In this regard, he relied on the judgment of the Hon ble Apex Court in the case of Commissioner of Customs (Import), Mumbai vs. Konkan Synthetic Fibers reported in 2012 (278) E.L.T. 37 (S.C.). In other words, he would submit that the ordinary rule that an Exemption Notification must be strictly construed must yield to the exceptional situation, where the Exemption Notification is geared to engender and advance economic activities. Economic activity brought about by making investments in a backward area would obviously generate employment and create wealth, which will pave the way for economic development of the State. Such Notification calls for a liberal approach, runs the argument. 12. Next, he would contend that even proceeding on the basis that NCCD being a levy is imposed under the 2001 Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Swachch Bharat Levy imposed in the year 2015 under the Finance Act. Section 119(5) of the Finance Act, 2015 reads as follows: (5) The provisions of Chapter V of the Finance Act, 1994 and the rules made thereunder, including those relating to refunds and exemptions from tax, interest and imposition of Penalty shall, as far as may be, apply in relation to the levy and collection of Swachh Bharat Cess on taxable service, as they apply in relation to the levy and collection of tax on such taxable services under Chapter V of the Finance Act, 1994 or the rules made thereunder, as the case may be. 15. Therefore, he would point out that on the one hand, in regard to Swachh Bharat Levy, there is express reference to interest being imposable; whereas interest is conspicuous by its absence in regard to NCCD. He would further contend that penalty after the dismissal of the writ petition has been imposed at the rate of 100 percent. He would pose the question that even proceeding on the basis that the appellant is liable to pay NCCD and other levies, having regard to the facts there is absolutely no justification for imposition of penalty and, that too, at the rate of 100 percen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed on the judgment of the Hon ble Apex Court in the case of Manuelsons Hotels Pvt. Ltd. vs. State of Kerala reported in (2016) 6 SCC 766 by the appellant. In the said case, the Court, after adverting to case law beginning with AIR 1968 SC 718 Union of India vs. Anglo-Afghan Agencies onwards, held inter alia as follows: 19. In fact, we must never forget that the doctrine of promissory estoppel is a doctrine whose foundation is that an unconscionable departure by one party from the subject-matter of an assumption which may be of fact or law, present or future, and which has been adopted by the other party as the basis of some course of conduct, act or omission, should not be allowed to pass muster. And the relief to be given in cases involving the doctrine of promissory estoppels contains a degree of flexibility which would ultimately render justice to the aggrieved party. 20. The above statement, based on various earlier English authorities, correctly encapsulates the law of promissory estoppel with one difference under our law, as has been seen hereinabove, promissory estoppel can be the basis of an independent cause of action in which detriment does not need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86 and stated that they were under no obligation to furnish any return under the said Act as they were exempt from payment of building tax. 3. In pursuance of the said G.O. dated 11-7-1986, the Kerala Building Tax Amendment Act of 1990 was passed with effect from 6-11-1990. The Objects and Reasons for the said Amendment Act read as follows: Statement Of Objects And Reasons The Government has declared tourism as an industry with a view to develop tourism in the State and announce various concessions to tourism related activities as per GO (P) 224/86/GAD dated 11-7-1986. One of the concessions declared by Government was to exempt the buildings constructed in relation to tourism from the provisions of the Kerala Building Tax Act, 1975. For achieving the above said purpose, the Kerala Building Tax Act, 1975 has to be amended suitably and the Government have decided to amend the Kerala Building Tax Act 1975 for the purpose. As the above proposal had to be given effect to immediately and as the Legislative assembly was not in session the Kerala Building Tax (Amendment) Ordinance, 1990 (Ordinance 8 of 1990) was promulgated by the Governor of Kerala on the 2nd day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee. 20. This led to the litigation in the High Court and finally the matter reached the Hon ble Apex Court. Hon ble Apex Court, no doubt, allowed the Appeal filed before it, and we think it appropriate to advert to paragraph 36: 36. In the present case, it is clear that no Writ of Mandamus is being issued to the executive to frame a body of rules or regulations which would be subordinate legislation in the nature of primary legislation (being general rules of conduct which would apply to those bound by them). On the facts of the present case, a discretionary power has to be exercised on facts under Section 3A of the Kerala Buildings Tax Act, 1975. The non- exercise of such discretionary power is clearly vitiated on account of the application of the doctrine of promissory estoppel in terms of this Court s judgments in Motilal Padampat and Nestle (supra). This is for the reason that non-exercise of such power is itself an arbitrary act which is vitiated by non- application of mind to relevant facts, namely, the fact that a G.O. dated 11.7.1986 specifically provided for exemption from building tax if hotels were to be set up in the State of Kerala pursuant to the represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. Consequently, we allow the appeal to the extent indicated above and set aside the judgment of the High Court. 21. Therefore, the learned Senior Counsel for the appellant would submit that the law has progressed to a stage, where it has employed the wednesbury doctrine and taken the view that the non issuance of the Notification under the provisions enabling exemption to be granted was an arbitrary act. The case of S.V.A. Steel Re-rolling Mills Limited and others vs. State of Kerala and others reported in (2014) 4 SCC 186, which is seen produced along with the compilation, related to an assurance given by the State for uninterrupted supply of electricity, and relying on the principle of promissory estoppel, the Court inter alia held that before laying down any policy, which would give benefits to its subjects, the State must think about pros and cons of the policy and its capacity to give the benefits. Otherwise, it would be in violation of the principles of promissory estoppel and also it would be unfair and immoral on the part of the State not to act as per its promise. 22. The case of Devi Multiplex vs. State of Gujarat reported in (2015) 9 SCC 132 is also produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1996 to 04.06.1997. This was reflected in their returns for the year. The returns were not rejected. The respondents contended that the benefit resulting from the exemption was passed on to the dairy farmers. For the first time, after a long period, on 04.06.1997, it was cryptically recorded in the meeting of the Council of Ministers that the decision of abolishing purchase tax on milk was not accepted. Notices were issued calling upon the respondents to pay purchase tax, which resulted in filing of the writ petitions. The Hon ble Apex Court held in view of the various provisions in the Punjab General Sales Tax Act, 1948 that the State Government had power to exempt or abolish milk as a taxable commodity. Nothing stood in the way of their doing so. It is further held that the Government cannot rely on a representation made without complying with the procedure prescribed by the relevant statute, but a citizen may and can compel the Government to do so if the factors necessary for founding a plea of promissory estoppel are established. It was also found that the Government was not able to establish any overriding public interest, which would make it inequitable to enforce estoppel. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere it is necessary to prevent fraud or manifest injustice. However, the Government or even a private party under the doctrine of promissory estoppel cannot be asked to do an act prohibited in law. The nature and function which the Government discharges is not very relevant. The Government is subject to the rule of promissory estoppel and if the essential ingredients of this doctrine are satisfied, the Government can be compelled to carry out the promise made by it. 3. The doctrine of promissory estoppel is not limited in its application only to defence but it can also furnish a cause of action. In other words, the doctrine of promissory estoppel can by itself be the basis of action. 4. For invocation of the doctrine of promissory estoppel, it is necessary for the promisee to show that by acting on promise made by the other party, he altered his position. The alteration of position by the promisee is a sine qua non for the applicability of the doctrine. However, it is not necessary for him to prove any damage, detriment or prejudice because of alteration of such promise. 5. In no case, the doctrine of promissory estoppel can be pressed into aid to compel the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th January, 2003 promising 100 percent outright Excise Duty exemption for a period of ten years besides other benefits: 1. That Respondent NO. 1, by Memorandum dated 7th January 2003 had published its Policy document (hereinafter referred to as the said industrial Policy ) to provide a package of incentives to enable Environment of industrial development, improve availability of capital and increase market access to provide a fillip to the private investment for the states of Uttaranchal and Himachal Pradesh. As per the above said policy document the major fiscal incentives promised to new industrial units and to existing units on their substantial expansion were [a] 100 % outright excise duty exemption for a period of tenyeas from the date of commencement of commercial production and [b] 100% Income Tax exemption for initial period of five years and thereafter 30% for companies and 25% for other than companies for a further period of five years from the date of commencement of commercial production. 28. Next paragraph is Paragraph 3, which reads as follows: 3. That in implementation of the excise duty exemption promised by the said Industrial Policy and in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kers employed. In fact, on perusal of Paragraph-7, what we find is that the appellant attracted by the fiscal incentives promised by the industrial policy and duly put into effect by the said Notification, a new industrial unit was set up, and there is no case for the appellant that the Notification did not adhere fully to the promise that there would be 100 % outright Excide Duty exemption. On the other hand, the averments clearly bear out our finding that the Notification is not at logger heads with the industrial policy, nor opposed with it. We must proceed, therefore, on the basis that whatever is promised in the policy finds reflection in the Notification. We also find these pleadings quite inadequate or rather non-existent to successfully found the plea of promissory estoppel. A glance at the admitted factual position may be highly relevant. The policy is dated 07.01.2003. The Notification was issued on 10.06.2003. All that is stated in the writ petition is that the petitioner has been manufacturing at the Pant Nagar Industrial Estate since April, 2007 after obtaining Central Excise Registration. We must bear in mind that an indispensable pre-requisite to found the plea of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Equally, in Section 136(3) of the Finance Act, it is provided as follows: 136. National Calamity Contingent duty.- (1) (2) (3) The provisions of the Central Excise Act, 1944 (1 of 1944) and the rules made thereunder, including those relating to refunds and exemptions from duties and imposition of penalty, shall, as far as may be, apply in relation to levy and collection of the National Calamity duty leviable under this section in respect of the goods specified in the Seventh Schedule as they apply in relation to levy and collection of the duties of excise on such goods under that Act or those rules, as the case may be. 32. Therefore, we can safely proceed on the basis that the Notification does not extend the benefit of exemption from NCCD. This interpretation flows from the plain words used and there is no room for ambiguity or construction. 33. The appellant has no case that it has changed its position relying upon the policy decision dated 07.01.2003. The policy decision dated 07.01.2003 is followed up by the Notification to effectuate the policy decision is what apparently understood by the Authorities. The Notification took shape in a little o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of promissory estoppel is that the promise must be clear and unambiguous. Its content cannot fall under the shadow of doubt. Even taking the announcement of the Prime Minister, as later embodied in the Office Memorandum dated 07.01.2003, what is stated is that there will be 100 percent outright exemption of Excise Duty. Excise Duties per se are those, which are levied under the Act. Section 3 of the Act provides for levy of Excise Duty and additional Excise Duty. There is no case for the appellant that the said Excise Duties are being demanded of them. Could it be said with certainty, therefore, that the words Excise Duty as mentioned in the Office Memorandum dated 07.01.2003 were understood or are capable of being understood as comprehending within its scope only the duty of excise under the Act. Contrast this fact scenario with that obtaining in the case of Manuelsons Hotels Pvt. Ltd. vs. State of Kerala (2016) 6 SCC 766. Therein, the promise was clear that the building, which was put up for the purpose mentioned, would be exempted from building tax. It is the said promise, which was sought to be breached. In the cases, which have been cited, there could be no doubt about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause the Excise and Taxation Department took some time to issue the notification, it cannot be held that the eligible units are not entitled to the concession till the Department issued the notification. 15. It has to be noted that the Finance Department of the State Government had concurred with the proposal of the Department of Industries to extend the tax concession beyond 31-3-2009 till 31-3-2013 and the Council of Ministers had accordingly taken a decision also. No doubt, the statutory notification issued by the Excise and Taxation Department under Section 8(5)(b) of the Act on 18-6-2009 has stated that the eligible units will be entitled to the concession with immediate effect. Merely because such an expression has been used, it cannot be held that the State Government can levy the tax against its own policy. The State Government is bound by the policy decision taken by the Council of Ministers and duly notified by the Department concerned viz. Department of Industries. 41. We cannot also be oblivious to the following passages from the judgment: 17. Even otherwise, it is not altogether a new concession that has been notified by the Excise and Taxation Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industrial units of the respondents ineligible for the facility of sales tax exemption on purchase of raw materials and direction was sought to extend the benefit of exemption. The Court took the view that reading the policy as a whole, respondent units were found entitled to the benefit of facility for a period of seven years from 01.04.1993, whereafter, the Court proceeded to hold as follows: 7. Coming to the second question, namely, the issuance of notification by the State Government in exercise of power under Section 7 of the Bihar Finance Act, it is true that issuance of such notifications entitles the industrial units to avail of the incentives and benefits declared by the State Government in its own industrial incentive policy. But in exercise of such power, it would not be permissible for the State Government to deny any benefit which is otherwise available to an industrial unit under the incentive policy itself. The industrial incentive policy is issued by the State Government after such policy is approved by the Cabinet itself. The issuance of the notification under Section 7 of the Bihar Finance Act is by the State Government in the Finance Department, which notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unit was located and if the factory of the unit was installed on a leased land or in a building taken on lease, the exemption was to be granted only when such land or building or both have been acquired by way of a registered lease for a minimum period of 15 years. The lease was to be in favour of the proprietor of the unit or any partner of the firm or in favour of the holding company. 44. The Court proceeded to hold as follows: 16. Before analysing the above policy read with the notifications, it is important to bear in mind the connotation of theword tax . A tax is a payment for raising general revenue. It is a burden. It is based on the principle of ability or capacity to pay. It is a manifestation of the taxing power of the State. An exemption from payment of tax under an enactment is an exemption from the tax liability. Therefore, every such exemption notification has to be read strictly. However, when an assessee is promised with a tax exemption for setting up an industry in the backward area as a term of the industrial policy, we have to read the implementing notifications in the context of the industrial policy. In such a case, the exemption notifications have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the above figures that the industry set up by Tata Cummins Ltd. will contribute to the industrial growth and development of the State. 46. No doubt, it is thereafter, that the Court proceeded to appreciate the scheme of the policy. 47. In the context of the aforesaid case law, we must appreciate, whether there is any merit in the case of the appellant that the Notification is contrary to the policy. We have already adverted to paragraph 7 of the writ petition. Besides this, we have also referred to the correspondence indulged in by the appellant. Far from setting up a case that the Notification is opposed to be a policy, the case appears that the Notification is in consonance with the policy (an argument, which we shall consider in later stage in this judgment). Indisputably, there is no challenge to the Notification. The justification for the omission to challenge is stated to be that if the appellant challenges the Notification, it would amount to questioning the benefits, which the appellant is admittedly entitled to. It is pointed out, however, that the reliefs sought by way of Prayer No. 1, namely, declaration that the appellant is entitled to the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Sales Tax v. Industrial Coal Enterprises, (1999) 2 SCC 607, this Court has observed: 11. In CIT v. Straw Board Mfg. Co. Ltd. this Court held that in taxing statutes, provision for concessional rate of tax should be liberally construed. So also in Bajaj Tempo Ltd. v. CIT it was held tha provision granting incentive for promoting economic growth and development in taxing statutes should be liberally construed and restriction placed on it by way of exception should be construed in a reasonable and purposive manner so as to advance the objective of the provision. 12. In Commissioner of Central Excise, Shillong v. North-Eastern Tobacco Co. Ltd., (2003) 1 SCC 161= 2002 (146) E.L.T. 490 (S.C.), this Court has held: 10. The other important principle of interpreting an exemption notification is that as far as possible liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. 13. In Associated Cement Companies Ltd. v. State of Bihar (2004) 7 SCC 642, this Court while explaining the nature of the exemption notification and also the manner in which it should be interpreted has held: 12. Liter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and it calls for a wider and liberal construction. The Court also the view that liberal and strict construction of the Notification is to be invoked at different stages as stated above. It is, no doubt, true that exemptions, which are beneficial in nature for the purpose of encouragement or promotion of the activities should be liberally construed. 50. We may also notice that in the case of Commissioner of Customs (Preventive), Mumbai vs. M. Ambalal and Company reported in (2011) 2 SCC 74, the Court, no doubt in Paragraph 16, took the view that the synthesis of the views is quite clearly that the general rule is strict interpretation while special rule of beneficial and promotional exemption is liberal interpretation and they are related to two different sets of circumstances. This paragraph is extracted by the Apex Court as already noted in 2012 (278) E.L.T. 37. It is pertinent to notice that in the said judgment, in the very next paragraph, namely, Paragraph 17, which was quoted from (2011)2 SCC Page 74, the Court held as follows: 17. The notification issued by the Central Government is exercise of the powers conferred by Section 25(1) of the Act exempts the articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old the chicken within the State. The case of the State was that such activity does not fall within the Notification. The Court held as follows: 16. The respondent-State has urged before us that the object of the notification ought to be considered in placing correct interpretation on the entries employed thereunder and thus, must receive a liberal construction. It is well settled that a provision providing for an exemption has to be construed strictly. In cases wherein the language of the exemption contained in the notification is simple, clear and unambiguous, the exemption notification must be given its natural meaning and the object and purpose of the notification need not be looked into. (CCE v. Favourite Industries, (2012) 7 SCC 15). In Novopan India Ltd. v. CCE and Customs, 1994 Supp (3) SCC 606, dealing with the same issue in relation to an exemption notification, a three-Judge Bench of this Court, stated the principle as follows: 16. We are, however, of the opinion that, on principle, the decision of this Court in Mangalore Chemicals and Fertilisers Ltd. vs. CCT, 1992 Supp (1) SCC 21 and in Union of India v. Wood Papers Ltd., (1990) 4 SCC 256 referred to therein- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clear expressions found in the Notification. This is impermissible even if it is in the wings of the theory of beneficial construction or it being an implementing notification. 54. The last point to be considered is whether in the absence of Notification exempting NCCD, we could, on the strength of the Notification, as issued, vouchsafe the benefit of exemption to the appellant? 55. The sheet anchor of the appellant in this regard is the line of decisions starting with the case of Banswara Syntex Ltd. vs. Union of India reported in 2007(216) E.L.T. 16 (Raj.). It is, therefore, necessary to examine the facts of the said case. The petitioner, therein, was engaged in the manufacture of yarn, gray fabrics and in getting man made fabrics processed. It paid Excise Duty, including Education Cess under the provisions of the Finance Act, 1994. The man made processed fabrics were exported. Thereupon, it filed a refund claim under Rule 18 of the Central Excise Rules. The claim for rebate relating to Education Cess was rejected in Appeal and the Appellate Order was confirmed by the Revisional Authority. Section 91 of the Finance Act provided that it would be levied and collected, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and collected under Finance Act, 2004 and it fell within the ambit of clause (3) of Explanation, appended to the Notification dated 26.06.2001. It was, therefore, that the Court took the view that the rebate became available on collection of surcharge on Excise Duty under Finance Act, 2004 in terms of existing Notification dated 26.06.2001 immediately. The later Notification dated 06.09.2004, including the Education Cess in enumerative definition was held to be clarificatory and by way of abundant caution and it was not a new rebate in relation to Excise Duty or any part thereof. At the time of surcharge it had taken the character of parent levy and it became subject to the provisions relating to Excise Duty applicable to it in the manner of collecting the same obligation of the tax payer in respect of its discharge as well as exemption concession by way of rebate. The surcharge was for the purpose of Union and was to be utilized to provide and finance unversalised quality of basic education. 56. On reading of Section 93, as a whole, it was found that the existing Notification providing exemption to the Duty of Excise was otherwise applicable to the Education Cess also w.e.f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001, it is mentioned that NCCD will be levied by way of surcharge and it will be a duty of Excise and further that it shall be in addition to any other duties of excise chargeable on such goods under the Act or any other law for the time being in force or even that the provisions of the Act and the Rules will apply for collection of NCCD, it would certainly not be enough to dislodge the unambiguous intent conveyed by the Author of the Notification by addition of the words leviable thereon under any of the said Acts . NCCD is not a levy under any of the Acts mentioned in the Notification. On the other hand, it is admittedly a levy under the Finance Act of 2001, which is a separate enactment. As far as the duties of excise, which are covered under the Excise Act, as already noticed, are concerned, they would be the excise duties payable under Section 3 of the Central Excise Act, 1944 or any other duties that is levied under the Act and the other enactments. We cannot lose sight of the fact that what is mentioned in Section 136 is that it is stated to be a duty of Excise or that it is in addition to the duties of Excise chargeable under the Act would not make a duty of Excise levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was indeed a provision in the Excise Act, which provided for levy of interest. In respect of interest, no doubt, learned Senior Counsel would contrast the provision relating to interest as contained in the levy of Swachh Bharat. We must notice that the impugned order of assessment is not even produced before us or impugned before us. Having regard to Section 136(3) of the Finance Act, 2001, prima facie provisions of the Act were available to the Authorities for all purposes would come to the rescue of the respondent if the interest is levied from the relevant time, but we do not wish to finally conclude this issue as we would allow the appellant to raise this contention before the statutory authority duly constituted. We also leave open the contention of the appellant to impugn the quantum of interest. In regard to the fate of the argument relating to imposition of penalty, it is to be answered against the appellant. No doubt, the case of the appellant is that even if it is found that NCCD was payable, to impose penalty and that too at the rate of 100 per cent is absolutely harsh, unjust and uncalled for. All that the appellant did is that it came over to a backward State, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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