TMI Blog1990 (11) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... icles. They claimed rebate of cess paid on the motor vehicles exported, which was rejected by the Assistant Collector (Refunds) on the ground that the cess is not allowed rebate under the Notification issued under Rule 12 of the Central Excise Rules. The Respondents went in appeal before the Collector (Appeals), who has allowed the appeal of the respondents and directed the Assistant Collector to grant rebate of cess in respect of motor vehicles exported. The Department, feeling aggrieved by this order, have come in appeal before us. 4. Shri Mondal, the ld. SDR on behalf of the appellant, contended that the order of the Collector (Appeals) is mainly based on the ground that as per the provisions of Rule 3 of Automobile Cess Rules, 1984, the provisions of the Central Excises Salt Act, 1944 and the Rules made thereunder including those relating to refund of duty shall be applicable to the levy and collection of cess. Refund of duty sanctioned under Sec. 11B also includes rebate. The Collector (Appeals) has also held that cess is also collected as a duty of excise and hence the provisions of the Central Excise Act and the Rules made thereunder are made applicable specifically to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . His argument, in short was, that no doubt, Rule 12 can be made available for granting rebate in respect of automobile cess as per the provisions of Rule 3 of the Automobile Cess Rules, 1984, but when Rule 12 prescribes issue of a notification for grant of rebate and such a notification is issued only under Rule 12 without invoking Rule 3 of the Automobile Cess Rules, 1984 this cannot be automatically applied for giving rebate of cess paid on motor vehicles. In this context, he also referred to the three Members judgment of the Special Bench-D in the case of Nellimarla Jute Mills reported in 1987 (12) ECR 1018 (CEGAT SB-D) wherein, it has been clearly held by the Bench that goods exempt from duty are not exempt from cess in the absence of separate notification issued under Rule 8(1) read with Sec. 3(4) of the Central Cess Act. The ratio of this judgment would be squarely applicable in this case, where Rule 12 of the Central Excise Rules contemplates issue of a notification for exemption from rebate. He also referred to the judgment of the Supreme Court in the case of M/s. Modi Rubber Limited Anr. reported in 1986 (8) ECR 723 (SC), where it has been held that when an exemption no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 to urge that tax includes a tax, toll, cess, rate, fee or other impost leviable under the Act prescribing conditions to be a Panch or a Sarpanch. 6. After hearing both the sides, we find that the only issue to be decided in this case is whether the respondents are entitled to grant of rebate of cess paid on motor vehicles exported out of India in terms of Notification. No. 197/62-C.E., dated 17-11-1962 issued under Rule 12 of the Central Excise Rules. We are particularly to take note of the fact that the learned SDR does not contest the following prepositions : (i) Automobile cess is collected as a duty of excise duty; (ii) Provisions of the Central Excise Act and the Rules made thereunder shall apply as far as to the levy and collection of the cess; and (iii) In view of the provisions of Rule 3 of the Automobile Cess Rules, even Rule 12 of the Central Excise Rules would be made applicable in the case of automobile cess. 7. However, Shri Mondal s main contention is that if rebate is to be granted in respect of cess paid on motor vehicles, notification under Rule 12 read with Rule 3 of the Automobile Cess Rules is legally necessary. In the absence of any such noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the result in so far as the present cases are concerned, because of the operation of Section 3(4) of Cess Act. In our opinion, this result will not follow from Central Excise Notification No. 56/72. Our reasons for saying so are the following. Firstly, that notification exempts goods in the circumstances stated therein from duty . The expression duty for the purpose of the Central Excise Rules is defined as duty payable under Section 3 of the Act . [Central Excise Rule 2(v).] Section 3 of the Act (i.e. the Central Excises Act) provides for levy and collection of duties of excise on all excisable goods produced or manufactured in India as, and at the rates set forth, in the First Schedule to the Act. This duty is not the same thing as the duly levied in terms of Section 3(1) of the Cess Act. Though both levies are described as duties of excise, the authority for levy is, as already noted, through separate and different enactments. Therefore, the exemption by means of a notification issued under Central Excise Rule 8(1) exempting goods from duty (leviable under the Central Excises Act) will not constitute an authority for exemption from the cess leviable under the Cess Act. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government from payment of special duty of excise or additional duty of excise, the recital of the source of power in the notification granting exemption has invariably been to Rule 8(1) read with the relevant provision of the statute levying special duty of excise or additional duty of excise, by which the provisions of the Central Excises and Salt Act, 1944 and the rules made thereunder including those relating to exemption from duty are made applicable. 9. Shri Pikle s argument is that both the aforesaid decisions are with regard to the notification issued under Rule 8(1) and not with regard to the notification issued under Rule 12. This argument is to be recorded only for dismissal. It is not disputed that both these decisions covered the question of interpretation of notification issued in exercise of the powers conferred on the Government under the Central Excise Rules and hence, whether it be Rule 8 or Rule 12 of the Central Excise Rules, the principle laid down is required to be applied. It is not the case of the respondents that any notification has been issued under Rule 12 read with Rule 3 of the Automobile Cess Rules. It is also not the case of the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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