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2013 (3) TMI 429 - JHARKHAND HIGH COURTWrit Petition - Petitioner manufacturing sponge iron, which is excisable commodity. Petitioner has challenged the Trade Notice issued by Commissioner of Central Excise & Customs, by which it has been declared that duty is required to be paid by the assessee at the time of clearance of goods from factory gate even for those goods which are sold through depot and the duty shall be levied at the price declared at depot. According to petitioner, as per section 4(2) the excise duty cannot be levied on the goods on transportation from the place of removal to the place of delivery, which has been made explicitly clear by the Hon’ble Supreme Court in the detailed judgment delivered in the case of Union of India & Ors. v. Bombay Tyre International Ltd. & Ors. reported in [1983 (10) TMI 51 - SUPREME COURT OF INDIA, NEW DELHI]. The petitioner has also challenged the vires of Section 4(4)(b)(iii) inserted by Section 74 of the Finance Act, 1996 as illegal and ultra vires of Entry 84 of List-I of Seventh Schedule of Constitution, as, according to the petitioner, the said Entry authorizes and gives power for levy of imposition of duty on goods manufactured or produced in India. It has been contended that said provision is ultra vires of the charging Section i.e., Section 3 of the Act. Held that:- After considering the submissions and in the judgement of passed by the Hon’ble Supreme Court in Union of India & Ors. v. Bombay Tyre International Ltd. & Ors. reported in [1983 (10) TMI 51 - SUPREME COURT OF INDIA, NEW DELHI]. In view of the above reasons, when there is statutory provision, any order or circular cannot nullify that statutory provision. Court are of the considered opinion that the Trade Notice issued by Commissioner of Central Excise & Customs is illegal and contrary to the statutory provisions of Section 4(2) of the Act of 1944 and runs contrary to the law laid down by the Hon’ble Supreme Court. Therefore, the writ petition of the petitioner deserves to be allowed on this Count. Hence the writ petition is allowed
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