9911796707
TMI Blog1989 (11) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 (1 of 1944) produced in any premises (other than the premises wherein refining of crude petroleum or shale or blending of non-duty paid petroleum products is carried on) declared under sub-rule (2) of Rule 140 of the Central Excise Rules, 1944 to be a refinery, and - (a) Utilised in the refinery in which the said excisable goods are produced, for the manufacture of other goods or as fuel for such manufacture (excluding fuel used for any internal combustion engine) or both; (b) allowed to escape in the atmosphere by flare system or otherwise; or (c) cleared to another factory outside the refinery in accordance with the procedure set out in Chapter X of the Central Excise Rules, 1944 for use in the manufacture of any of the commodities specified in the Schedule hereto annexed otherwise than as fuel, from the whole of the duty of excise leviable thereon under Section 3 of the Central Excises and Salt Act; 1944 (1 of 1944); Provided that any of the excisable goods having its flushing point below seventy-six degrees of Fahrenheit's thermometer and not less than 7% by volume of which distils above 215°C, and cleared under this clause for use as industrial fuel (but not as fuel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt that the Customs authorities did not dispute the accuracy of the statement. In the circumstances, the Division Bench was satisfied that the conditions mentioned in the exemption notification were satisfied. 5. Reliance was also placed upon an unreported Judgment dated 27th.November, 1984 of this Court in Writ Petition No. 660 of 1981. This was a case dealing with the same Notification and in respect of the same product. The Learned Judge held in favour of the Petitioners in view of the Division Bench Judgment cited above. However, whilst making the Petition absolute, the Learned Judge observed as follows :- "I am bound by and follow the decision of the Division Bench, but I must very respectfully place on record my disagreement with the latter part thereof. Where a notification grants exemption from levy of excise duty subject to the fulfilment of one or more conditions, the "like article ……….. manufactured in India" is given exemption from excise duty only provided it fulfils the conditions mentioned in the notification. Even under such a notification excise duty is, ordinarily, leviable upon that like article manufactured in India. Under Section 3 of the Customs Tariff A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggest that advantage under the exemption notification should be made available even though the conditions required for securing advantage are not complied with. The suggestion that only those conditions would be satisfied which are possible of satisfaction is only required to be stated to be rejected. A tax-payer, who desires to take advantage of exemption must bring his case within the four corners of the exemption notification. Acceding to the submission of Dr. Kantawala would lead to atrocious results as the importer would get advantage over the local manufacturers, inasmuch as the importers without satisfying the conditions would claim advantage, while the same would be denied to the local manufacturers. It is, therefore impossible to accept the submission of Dr. Kantawala that even satisfaction of one condition would entitle the importer to take advantage of the exemption notification. Dr. Kantawala urged that in the case of Century Enka the advantage of notification was made available to the importer, but the submission overlooks that the condition prescribed under the said notification concerning that case was satisfied by the importer, the condition being that the entire m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration. In my view, two Benches of this Court have not taken different views. In the case of Century Enka, the question whether all conditions have to be fulfilled is not dealt with because the case proceeded on the footing that all the conditions were fulfilled. It is only in the case of Ashok Traders that it has been held that all conditions must be fulfilled. Under these circumstances, I do not see any necessity for referring this matter to a Larger Bench. 9. Admittedly, in respect of items which are imported the third condition laid down in the Notification cannot be satisfied. Under these circumstances, it would have to be held that the Petitioners are not entitled to the benefit of this Notification. 10. Mr. Kotwal next argued that in any event Notification No. 89/82, dated 25th March, 1982 would be applicable to the Petitioners. The said Notification reads as follows : "In exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all the goods covered by the First Schedule to the Customs Tariff Act, 1975 (51 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty are now leviable on excisable goods produced or manufactured in India. Under the main sub-section (1) of Section 3, ibid, excise duty at the rates set forth in the First Schedule to the said Act is leviable on excisable goods produced or manufactured in any place outside a Free Trade Zone in India. On excisable goods produced or manufactured in a Free Trade Zone and brought into the Domestic Tariff Area, excise duty is leviable as per the proviso to the sub-section (1) of Section 3, as inserted through the Finance Bill, 1982. 2. In terms of Section 3(1) of the Customs Tariff Act, 1975 where excise duty is leviable at different rates, the additional customs duty is to be charged at the highest rate on the goods imported into India. Since in most of the cases excise duty leviable on the goods produced in a Free Trade Zone and brought into the Domestic Tariff Area will be higher than the excise duty leviable on the goods produced outside the zone in India, the additional duty on the goods imported from abroad would become leviable at the rates as per the proviso to Section 3(1) of the Central Excises and Salt Act and not at the rate at which excise duty is leviable under t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
