9911796707
TMI Blog1991 (1) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration, directed the appellants to refund the duty collected to the respondents within three months. The facts giving rise to the passing of this order are required to be stated to appreciate the grievance of the appellants. 2. The respondent No.1 is a Private Limited Co. engaged in the manufacture of aluminium collapsible tubes and rigid cans in the factory situated at Malad (West), Bombay. The Plain aluminium collapsible tubes and rigid cans are prepared by feeding aluminium slugs into an Impact Extrusion Press. The aluminium collapsible tubes and rigid cans are thereafter processed and finished on the training machine where tube is subject to the process of threading, greeving, etc. After the manufacture of aluminium collapsible tubes, the further process of printing and lacquering is resorted to. According to the respondents, the process of printing and lacquering the aluminium collapsible tubes is a post-manufacturing process and is undertaking only for the purpose of facilitating the sale of the product and in accordance with the instructions of the customers. 3. The extruded tubes manufactured by the respondents were liable for excise duty under Tariff Item 27 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Central Excises and Salt Act, 1944: "(a) in section 2, in clause (f), after sub-clause (vii), the following sub-clause shall be inserted, namely :- "(viii) in relation to aluminium, includes lacquering or printing or both of plain containers;" (b) the First Schedule shall be amended in the manner specified in Parts I and II of the Third Schedule." The Third Schedule refers to the proposed amendment of Item No. 27 in the following terms: (a) for sub-item (f), the following sub-item shall be substituted, namely :- "(f) containers, plain, lacquered or printed or lacquered and printed, Fifty per cent ad valorem plus two thousand rupees per metric tonne.". The Finance Bill also made a declaration under Section 3 of the Provisional Collection of Taxes Act, 1931 in the following terms : "It is hereby declared that it is expedient in the public interest that the provisions of Clauses 45, 46, 47 and 48 of this Bill shall have immediate effect under the Provisional Collection of Taxes Act, 1931." The Finance Bill became law with effect from August 25, 1980 by passing of Finance (No. 2) Act, 1980. 6. As a result of the amendment, the expression "manufacture" in Section 2( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Chapter Note 2 at the beginning of Chapter 83 of the Central Excise Tariff Act states as under: "In relation to sub-heading No. 8312.11, the process of lacquering or printing or both of plain containers shall amount to 'manufacture'." The respondents by amendment challenged the provisions of the new Act also on the ground that Tariff Item 8312.11 was ultra vires of the Constitution and this contention was also upheld by the Single Judge by the impugned judgment. 7. The learned Judge struck down the amendments to the Central Excise Act and the provisions of the Central Excise Tariff Act on the ground that the amendments were ultra vires of Entry No. 84 in List I of Schedule VII to the Constitution of India. The learned Judge held that the Parliament was not competent to legislate and amend the law by resort to Entry No. 84. The learned Judge held that the process of lacquering or printing does not become 'manufacture' merely by including the same in the expression 'manufacture' under Section 2(f) of the Act and in Tariff Item No. 27(f). The Single Judge felt that in face of the decisions recorded by the Gujarat High Court and the Bombay High Court, the Parliament was incompete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents should be granted relief claimed under prayer d(l) which is an alternative prayer made by amending petition. By this alternative prayer, the respondents claimed refund of the excise duty recovered in respect of process of printing and lacquering of aluminium collapsible tubes and rigid cans from June 18, 1980 to August 25, 1980. Shri Thakkar submitted that the Finance Bill was introduced in Parliament on June 18, 1980 and the Bill became law on passing of Finance (No. 2) Act, 1980 with effect from August 25, 1980. The learned Counsel urged that though a declaration as prescribed by Section 3 of the Provisional Collection of Taxes Act, 1931 was made by the Government of India while introducing Finance Bill in the Parliament, that declaration cannot enable the Excise authorities to recover duty on the basis of the cost of printing and lacquering is to be included in the assessable value of aluminium collapsible tubes and rigid cans, for determining excise duty. The submission is that Section 3 has no application and cannot authorise the Excise authorities to recover additional duty from June 18, 1980. The submission is not correct. The Provisional Collection of Taxes Act, 193 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect is of attracting not only the purely procedural and machinery provisions but also some of the charging provisions. The Supreme Court observed that the language of the Amending Act should be given a wider meaning and the provisions are self-contained and completely specified the scope of the charge either as a percentage of the Excise Duty normally chargeable under the Central Excises and Salt Act or as a percentage of the 'assessable value' determined under Section 4 of the 1944 Act. In our judgment, the amendment carried out by the Finance Bill does not merely widen the meaning of expression 'manufacture' under Section 2 of the Central Excises and Salt Act but it was also made for the purpose of valid levy on the activity of printing and lacquering. In view of the decisions of the Gujarat and Bombay High Courts that the process of printing and lacquering is a post-manufacturing process and, therefore, the cost for the said purpose cannot be loaded in the assessable value of the aluminium collapsible tubes, the Central Government decided to amend the provisions of Section 2(f) and substitute sub-item (f) of Tariff Item No. 27 - First Schedule of the Act so as to bring in its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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