TMI Blog1984 (2) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... matter has now come before us. 3. Appearing before us for the appellants, Dr. Gauri Shankar stated that he was not pressing the claim on the ground advanced before the authorities below. He however wished to press the claim on the basis of a new ground, namely that the levy of special excise duty on the goods in terms of the declaration under the Provisional Collection of Taxes Act appended to the Finance Bill, 1980, did not authorise the levy of the special excise duty. (Shri Sachar, the representative of the department, objected that this ground was an entirely new one and had not been taken before the authorities below. While this was factually correct, we held that, the ground being one based purely on a question of law, it could be taken before us). 4. Dr. Gauri Shankar s argument in brief was that Section 3 of the Provisional Collection of Taxes Act, 1931, authorised the Central Government to insert in a Bill a declaration under that section, where such a Bill provides for the imposition or increase of a duty of customs or excise . According to him, a duty of excise within the meaning of that section would refer only to duties of excise under the Central Excises and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question, and that accordingly their appeal was entitled to succeed. 8. For the department, Shri Sachar submitted that the arguments of the learned Counsel for the appellants amounted to saying that the legislation and/or the declaration under the Provisional Collection of Taxes Act was invalid. He submitted that the Tribunal could not go into such a question. 9. We find that there is substance in the submissions of Shri Sachar. Clause 5(1) of the Finance Bill, 1980 reads as follows :- In the case of goods chargeable with a duty of excise under the Central Excises and Salt Act, 1944 (1 of 1944), as amended from time to time (hereinafter referred to as the Central Excises Act), read with any notification for the time being in force issued by the Central Government in relation to the duty so chargeable, there shall be levied and collected a special duty of excise equal to five per cent of the amount so chargeable; on such goods. The declaration under the Provisional Collection of Taxes Act, 1931, inserted in the same Bill reads as under :- It is hereby declared that it is expedient in the public interest that the provisions of clauses 4 and 5 of this Bill shall h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Company Ltd., had contended that they were entitled to the grant of a tax credit certificate to the extent of 25% of the total excise duty levied on them, namely the special excise duty under Section 80 of the Finance Act, 1965, as well as the basic excise duty under the Central Excises and Salt Act. This contention was rejected by the High Court, having regard to the meaning given to the expression duty of excise in sub-section (6) of Section 280ZD of the Income-tax Act (quoted above). 11. In their subsequent judgment in the case of Orient Paper Mills, which inter alia raised the same point, their Lordships of the Delhi High Court took the same view, following and approving their earlier decision in the case of Associated Cement Company Ltd. 12. It would thus be seen that in the two cases cited by the learned counsel for the appellants, the Delhi High Court was guided by the specific definition of the expression duty of excise contained in Section 280 ZD of the Income-tax Act. This definition would not be applicable to other enactments where the expression duty of excise has not been so defined. Section 3 of the Provisional Collection of Taxes Act does not contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Salt Act, that exemption became available in respect of all duties of excise, by whatever name called. Such a difficulty would not arise where the wording was more precise, and made it clear that the exemption was available only in respect of the duty of excise leviable under the Central Excises and Salt Act. It appears that it was in order to safeguard the position of the revenue and ensure that all exemption notifications issued earlier with the imprecise wording were interpreted in accordance with the Government s intention (namely that they should grant exemption only from the basic duty) that Government sponsored the Central Excise Laws (Amendment and Validation) Act, 1982, which replaced an ordinance issued earlier. In this Act, as already stated, a distinction has been drawn between the Central Excises and Salt Act on the one hand and any other Central Act (referred to as Central Law) on the other hand. This Act covers a number of different situations, though all of them are basically alike. We reproduce below the provisions of Section 2(3) (b) of this Act :- (3) Where any Central law providing for the levy and collection of any duty of excise makes the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
