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TMI Blog1978 (3) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... oned under Entry 33. The present dispute has arisen because of the said change in law. 3. The Rules framed under Section 37 of the Act provide for, inter alia, levy, refund and exemption from excise duty. We will first refer to Rule 56A in this behalf. The said Rule provides for a special procedure for movement of duty-paid materials or component parts for use in the manufacture of finished excisable goods. Sub-rule (1) says that, notwithstanding anything contained in these Rules, the Central Government may, by notification in the Official Gazette, specify the excisable goods in respect of which the procedure laid down in sub-rule (2) shall apply. It is necessary to set out sub-rule (2) in full : "(2) The Collector may, on application made in this behalf and subject to the conditions mentioned in sub-rule (3) and such other conditions as may from time to time be prescribed by the Central Government, permit a manufacturer of any excisable goods specified under sub-rule (1) to receive material or component parts or finished product (like asbestos Cement), on which the duty of excise or the additional duty under Section 2A of the Indian Tariff Act, 1934 (32 of 1934) (hereinafter r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an officer, or through mis-statement as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been levied, has been owing to any such cause, erroneously refunded, the person chargeable with the duty or charge, so short-levied, or to whom such refund has been erroneously made, shall pay the deficiency or pay the amount paid to him in excess, as the case may be, on written demand by the proper officer being made within three months from the date on which the duty or charge was paid or adjusted in the owner's account-current, if any, or from the date of making the refund." "10A. Where these Rules do not make any specific provision for the collection of any duty, or of any deficiency in duty if the duty has for any reason been short-levied, or of any other sum of any kind payable to he Central Government under the Act or these Rules, such duty, deficiency in duty or sum shall, on a written demand made by the proper officer, be paid to such person and at such time and place, as the proper officer may specify." 5. Until 1-3-1969 the petitioner-appellant was availing of the facility mentioned in Rule 56A. The du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the Central Government, but with no success. It then approached this Court by way of a writ petition, again in vain. 8. The main contention raised by Mr. K. Srinivas Murthy, the learned Counsel for the appellant in this Writ Appeal, is one of limitation. The said plea has been consistently raised by the appellant before all the authorities under the Act, as well as before the learned single Judge, and all of them have negatived it. The contention runs as follows : Clause (v) of sub-rule (3) of Rule 56A has no application to the facts of the case and is, therefore, out of picture. On the facts and circumstances alleged in the show cause notice and found in the order of the Assistant Collector of Central Excise, it is Rule 10 which is attracted. But any action under Rule 10 has to be taken within the period prescribed therein and, admittedly, the present proceedings were initiated beyond the period prescribed under Rule 10. Rule 10A is not applicable, inasmuch as it being a residuary provision, applies only if Rule 10 is not applicable. 9. It may be noticed that the learned single Judge has agreed with the petitioner-appellant that Rule 56A(3)(v) is not applicable. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any reason, resulting in payment of refund to, or recovery of more duty from the manufacturer or importer, as the case may be, of such material or component parts, the credit allowed shall be varied accordingly ........". Such variation can be effected either by adjustment in the credit account maintained under sub-rule (3), or in the current account maintained under Rule 9(3) or Rule 173G(1), or if such adjustment, is not possible, by cash recovery or refund. The proviso thus contemplates a subsequent variation in the duty paid on the component parts (or material, as the case may be) used in the manufacture of an excisable article by a manufacturer. It is thus evident that the said proviso is equally inapplicable here, because this is not a case where the duty on stators and rotors -- the relevant components herein -- has been varied subsequently. Therefore, there is no question of any adjustment or refund on that account. In our opinion, therefore, the said proviso is of no relevance or application. 12. We shall now deal with the question whether it is Rule 10 which is applicable, or Rule 10A. It is admitted that if Rule 10 applies, the impugned levy is bad, being barred by li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1951 being Act, 23 of 1951, which became a law on 28-4-1951. By this Act, the duty on tobacco was raised from 8 annas to 14 annas per lb. Though the Finance Act, 1951 became law on 28-4-1951, yet by virtue of Section 6(2) the rates introduced by the Act were deemed to have come into effect on and from 1-3-1951. Section 7(2) further provided for refund of any duty collected in excess, or for recovery of any short collection arising on account of such a situation. As stated above, the petitioner in that case had cleared the tobacco from the warehouse between 1-3-1951 and 28-4-1951 by paying the duty in accordance with the rate prescribed in Bill No. 13 of 1951 i.e. at the rate of 8 annas. But, because of the Finance Act which had retrospective effect from 1-3-1951, the rate payable by the petitioner therein was 14 annas per lb. In those circumstances, the Central Excise authorities made a demand upon the petitioner for the said difference of duty, which demand was questioned by way of a writ petition in the High Court, which was upheld. The High Court held that the short levy was not on account of any inadvertence or error contemplated by Rule 10 and that, there being no other pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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