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TMI Blog2002 (9) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,032.8 dozen 2. According to the petitioner, as the said pre-budget stock was manufactured prior to 1-3-1979, it was not liable to pay enhanced duty in terms of the Finance Act, 1979. 3. The petitioners claim that the duty payable by it would be governed by the law as was applicable as on 28-2-1979, taking the said plea the petitioners made representations dated 11-1-1980 and 20-2-1980. Petitioner company however made payment of the excise duty as demanded under protest. The aforesaid representations of the petitioners were rejected by respondent vide order dated 21-4-1980 stating : "The rate of duty applicable to any excisable goods shall be the rate and valuation in force on the date of actual removal of such goods from the factory. Your attention in this regard is invited to Rule 9A (l)(ii) of Central Excise Rules, 1944. In view of the above, your contention that the duty leviable on goods held in stock as on 28-2-1979 is at pre-budget rate, is not correct. In other words, the duty paid at post budget rate on the goods cleared on or after 1-3-1979 is in order and no refund of duty is admissible. If you are aggrieved against this decision, you may make your r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and not on the date of clearance, the cut off date for payment of duty was 28-2-79 and not 1-3-1979. 7. Mr Gulati, learned counsel appearing for the petitioners, would submit that having regard to the provisions contained in Section 3 of the said Act, read with Rule 9, the Tribunal must be held to have committed illegality in holding that the relevant date would be the date of clearance. In the instant case, it is not in dispute that the stock in question is pre-budget stock. The question as regards the applicability of the tariff, contended Mr Gulati, would depend on the date of manufacture and not the date of clearance. In support of the said contention the counsel relied on : Union of India v. State of Mysore - 1997 (1) E.L.T. 26 (S.C.) Viniyoga International v. States - 1985 (20) E.L.T. 23 Collector v. Modern Steel Ltd. - 1986 (26) E.L.T. 165 Ponds India Ltd. v. Collector of Central Excise - 1997 (90) E.L.T. 3 Collector of Central Excise, Culcutta-II v. Indo Japan Steel Ltd. - 1997 (92) E.L.T. 292. 8. Nobody had appeared on behalf of the respondent. 9. Sections 3(1) and Rule 9A, as it then stood, reads as under : "3(1) There shall be levied and collected i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the generality of the foregoing power such rules may— (i) xxx xxx xxx (ia) xxx xxx xxx (ib) provide for the assessment and collection of duties of excise, the authorities by whom functions under this Act are to be discharged, the issue of notices requiring payment, the manner in which the duties shall be payable and the recovery of duty not paid; (ibb) provide for charging or payment of interest on the differential amount of duty which becomes payable or refundable upon finalisation of all or any class of provisional assessments. (ic) provide for the remission of duty of excise leviable on any excisable goods, which due to any natural cause are found to be deficient in quantity, the limit or limits of percentage beyond which no such remission shall be allowed and the different limit or limits of percentage for different varieties of the same excisable goods or for the different areas or for different seasons. (4) Notwithstanding anything contained in sub-Section (3) and without prejudice to the provisions of Section 9 in making rules under this Section, the Central Government may provide that if any manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month after the exemption notification dated November 23, 1961 was issued. In the said letter the respondent on doubt stated that the material which the local manufacturer has offered us was produced before the imposition of excise duty on dyes. But it was followed by the sentence 'we now purpose to pay the excise duty on the Fast Colour Bases.....' In that letter there was a request made to the Superintendent of Central excise to accept excise duty on the fast colour bases which the respondent would purchase either from the local manufacturer or from the open market. The letter did not contain any particulars about the quantity of such dyes which they wished to purchase or its value. The Superintendent of Central Excise in his reply stated that there was no objection to the payment of excise duty on fast colour bases purchased by them and that if evidence of payment of excise duty on fast colour bases was produced, the dyes manufactured by using those last colour bases would not be liable to duty under the notification. The above reply was intended to convey in effect what the notification started. It was perhaps assumed that payment of excise duty would arise only when it was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere goods have been manufactured while the levy of special excise duty is operative and have not been cleared until the last date of that levy, the goods must be deemed to have been removed on that last date." 17. In Collector of Central Excise, Calcutta II v. Indo Japan Steel Ltd. - 1997 (92) E.L.T. 292 referring to Vazir Sultan Tobacco Co. Ltd. the Apex Court held : "2. In view of the aforesaid decision, it must be held that the duty is chargeable at the point of manufacture and not from the removal from the factory, although for the sake of convenience, the Statute has provided that the levy of duty and collection of duty shall be at the factory gate at the time of removal. In view of the principles of law laid down in the above mentioned decision, the appeal is dismissed. There will be no order as to costs." In view of the aforementioned authoritative pronouncement of the Supreme Court we are of the opinion that the impugned judgment cannot be sustained. The writ petition is allowed. The respondent are hereby directed to refund the amount of excise duty paid by the petitioner within six weeks from the date of receipt of a copy of the order. There shall, however, be no or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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