9911796707
TMI Blog1980 (2) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... reparation have therapeutic values, which are not known to be used as diluents, disintegrating agent, etc. 2. The petitioner-firm was asked why penal action should not be taken against them for clearing the goods at a lower rate of duty of 2 1/2% adv. instead of 7 1/2% adv. and why the differential duty should not be recovered. The petitioner-firm submitted that Ioquin tablets and ampoules are only quinine products and Ayurvedic ingredients like Neem, Kiryat, Kali Mirchi are added for a psychological effect on the consumers and not to change the therapeutic effect which is provided by Quinine. 3. The Collector of Central Excise, Hyderabad held that conditions for availing the lower rate of duty are not fulfilled and thus the Ioquin table ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned product, he admitted that he had no evidence to show that this condition had been fulfilled, though he pleaded that all along the Excise Authorities have been approving the impugned product for assessment @ 2 1/2% per cent both before issue of the aforesaid notification dated 3-5-1969 as well as after. In particular, he drew my attention to the additional grounds taken in Para (i) before the appellate authority countering the finding of the original adjudicating authority that subsequent to the issue of the aforesaid Notification No. 116/69 the petitioners had not filed a classification list for approval of the appropriate and competent authority. On the contrary it was contended that they had filed the classification list which was du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erve that the Assistant Collector of Central Excise, Hyderabad had sought the expert opinion of the Drug Controller, Hyderabad on the application of the conditions subject to which the lower rate of duty can be availed of in terms of Notification No. 116/69, dated 3-5-1969 in relation to the impugned products. The Drug Controller had opined that the main ingredients for the preparation of Ioquin is Quinine Hydrochloride even though two Ayurvedic ingredients have been added which are claimed to act as antipyretic as per the literature of the petitioner-firm. The Chemical Examiners' report which was made available to the petitioner-firm clearly indicate that Ioquin tablets and injections "contain therapeutically active ingredients other than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the exemption notification. In other words, the petitioner-firm has not discharged its onus for claiming benefit of the exemption. In this connection, the observations of the Supreme Court in the case of Commissioner of Income Tax, Bihar and Orissa v. Ramakrishna Deo [(1959) 35 ITR p. 313] are relevant in this case:- "At the outset, we should dissent from the view expressed by the learned judges that the burden is on the Department to prove that the income sought to be taxed is not agricultural income. The law is well settled that it is for a person who claims exemption to establish it and there is no reason why it should be otherwise when the exemption claimed is under the Income-tax Act". The principle enunciated above would apply wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, provision or rule made thereunder in the taxing statute will be an offence for which prosecution will lie. Such was the case in Public Prosecutor, Madras v. R. Raju (AIR 1972 SC 2504). But assessment is not based on violation by the assessee of any provision of law, but is founded on the charging provision. Tax is attracted because the assessee makes income, or a sale, or possesses wealth, if someone dies his or he estate attracts duty. In the case of excise duty tax is attracted not because the assessee violated some provision of law, but because he manufactured goods which are assessable to excise duty but escaped charge. It follows, therefore, that once it is clear that violation is not the basis of assessment, the starting point of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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