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TMI Blog1980 (9) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Assistant Collector of Central Excise, Madras, for refund of Rs. 32,004 which was provisionally collected from the petitioners by way of excise duty on maida. The Assistant Collector of Central Excise, Madras, dismissed the application by his letter dated 8-5-1972. Since the order of dismissal was communicated in the form of a departmental memo, the petitioners could not file an appeal. The petitioners, therefore, filed yet another regular application on 17-7-1975, for the refund. That application too was rejected by the Assistant Collector of Central Excise, Madras by the order dated 30-7-1975. The petitioners then preferred an appeal before the Collector of Central Excise, Madras. The appeal was also rejected on 17-11-1975. The petitioners, further revision to the Government of India was also rejected on 31-10-1977. The petitioners received a copy of the order only on 31-12-1977. This writ petition has been filed for the issue of a writ of mandamus directing the respondent, the Union of India, to refund the sum of Rs. 32,004 which was collected from the petitioners as excise duty on maida under the Provisional Collection of Taxes Act. 2. Mr. Krishnamurthi Iyer, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Art. 265 of the Constitution of India. According to the learned Counsel, Sec. 5 of the Provisional Collection of Taxes Act would not be attracted, because the Bill was not passed in any amended form. 4. It is not disputed that Finance Bill No. 27 of 1971, which was presented to the Parliament on 28-5-1971, provided for the levy of excise duty on maida, that maida was included under item 1-F of the Central Excise Tariff and that an ad valorem duty of 10 per cent was proposed to be levied; it is also not disputed that the petitioners paid a sum of Rs. 32,004, towards excise duty on maida manufactured by them for the period 29-5-1971 to 9-6-1971. Sec. 3 of the Provisional Collections of Taxes Act, 1931 reads as follows : - "Where a Bill to be introduced in the Parliament on behalf of Central Government provides for the imposition or increase of a duty of customs or excise the Central Government may cause to be inserted in the Bill a declaration that it is expedient in the public interest that any provision of the Bill relating to such imposition or increase shall have immediate effect under the Act." 5. It is not in dispute that the Finance Bill No. (2) of 1971 did contain a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of Taxes Act shall cease to have the force of law under the said Act when an enactment is passed with or without amendment. 2. The declaration shall cease to have the force of law under Sec. 3 of the Act when, by means of a motion, the Parliament directs the Central Government to issue a notification that the declaration shall cease to have the force of law. 3. The declaration made under Sec. 3 of the Act will cease to have the force of law on the expiry of the seventy-fifth day after the day on which the Bill was introduced in Parliament." 8. Here, there is no doubt that the Bill became an enactment on 10-8-1971, with amendment. I say that the Bill became an enactment with amendment because the Central Excise Tariff included in the Bill stood amended by the deletion of maida which had been included under item l-F of the Central Excise Tariff in the Finance Bill. Consequently, the declaration made under Sec. 3 of the Act ceased to have the force of law by the operation of Sec 2(a) of the Act. Further, Sec. 5(1) clearly states that where a declared provision comes into operation as an enactment in an amended form before the expiry of the seventy-fifth day after the day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in Flour and Food Ltd. v. Union of India (M.P 164 of 1971). A Bench of the Madhya Pradesh High Court consisting of the learned Chief Justice P.K. Tare and Justice G.L. Oza, upheld a claim for refund. Before the Madhya Pradesh High Court, a manufacturer of maida who had paid excise duty for the period from 29-5-1971 to 12-6-1971, in terms of the declaration made by the Union of India under Sec. 3 of the Provisional Collection of Taxes Act, claimed refund of the excise duty paid by him on the ground that the Finance Act had deleted the provision for the imposition of excise duty originally contemplated in the Finance Bill. The learned Judges observed as follows :- "The Bills proposing a duty on the production of maida was presented in Parliament for the first time on 28-5-1971. Ultimately when the Finance Act was passed on 10-8-1971, no duty was imposed on maida. It cannot therefore, be doubted, and it is not also in dispute, that the duty on maida, which was proposed in the Bill, was ultimately withdrawn. It has been provided in the Act that when a Bill is presented in the House the duties proposed in it can be lawfully collected from the next day. But it is also clear fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made of all duties collected which would not have otherwise been collected if the provisions in amended form would have been introduced. Therefore, in view of this section the manufacturers are entitled to refund when the duties of excise are charged immediately on the introduction of the Finance Bill and are subsequently withdrawn or rate of duty is reduced by an amendment to such Finance Bill. Thus, the provisions of this section are applicable only when the withdrawal of duty or reduction in rate of duty is effected because of the amendment in the relevant Finance Bill and this is so because of the use of the word 'enactment' in the said section. Notification dated 10-8-1971 issued under Rule 8 of the Central Excise Rules, 1944 being a part of delegated legislation does not have the effect of amending or deleting the Tariff Entry 1F itself as explained by the Supreme Court in the case of Healthways Dairy Co. Ltd. - 1978 E.L.T. (J 457). In this case the Supreme Court specifically held that if any goods specified in the First Schedule are exempted from the levy of excise duty under Rule 8 of the Central Excise Rules, it does not mean that the manufacturers of said goods are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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