TMI Blog1990 (12) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... essional rate of 50% as per the said notification. The Department issued show cause notices, demands for these periods for various amounts in the respective show cause notices. The Range Superintendent assessed the goods to duty under RT 12s and demanded the differential duty amount as per the demands confirmed in the order-in- original. Against the confirmation of the demand, the assessee went in appeal and the learned Appellate Collector has held that the assessments made by the Range Superintendent were based on a different interpretation than the correct interpretation of the notification in question and hence, he set aside the demands. 4. The Department filed a Review Petition before the Government of India under erstwhile Section 36(2) of Central Excises and Salt Act, 1944 on 9-1-1981. On examining the Review petition, the Government of India issued show cause notice dated 31-1-1981 to the assessee. The said Review petition of the Department has now been transferred and converted into appeal before this Tribunal. 5. In the grounds of appeal, the Revenue has stated that the Appellate Collector of Customs has failed to appreciate the provisions of Section 4 of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) of the said Act is not the correct reading in the eyes of the law that stood on the date of issue of the show cause notice. He submitted that sub-section 4(4)(d)(ii) had been examined at length by the Single Judge of the Andhra Pradesh High Court in the case of Andhra Pradesh Paper Mills Ltd. [1980 (6) E.L.T 210] and the Court had negatived the Revenue s contention. The Court had also held that the duty is levied by Section 3 of the Act; read with the Tariff Schedule. The exemption notification issued under Rule 8 does not take away the levy. It only grants exemption from the levy in specified circumstances and under specified conditions. In other words, because of the exemption the levy of duty is not erased. The object of the notification is to- confer certain benefits upon the manufacturer or the buyers/consumers through the manufacturer as the case may be. In other words, a part of the duty is passed on to the manufacturer or the buyer/consumer as the case may be, as an incentive whether with a view to encourage production or the consumption. Accepting Mr. Subramanyan Reddy s argument would virtually amount to adding a part of the Excise duty to the manufacturing cost and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d effectively taken or done as if the amendment made by sub-section (1) had been in force at all material times and accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority :- (a) All duties of excise levied, assessed or collected during the said period on any excisable goods under the Central Excises Act, shall be deemed to be and shall be deemed always to have been validly assessed or collected as if the amendment made by sub-section (1) had been in force at all material times; (b) no suit or other proceeding shall be maintained or continued in any court for the refund of and no enforcement shall be made by any court of any decree or order directing the refund of any such duties of excise which have been collected and which would have been validly collected if the amendment made by sub-section (1) had been in force at all material times. (c) refund shall be made of all such duties of excise which have been collected but which would not have been so collected if the amendment made by sub-section (1) had been in force at all material times; (d) recovery shall be made of all such duties of excise which have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in Assistant Collector of Central Excise, Rajahmundry v. Andhra Pradesh Paper Mills Ltd., Rajahmundry 1987 (32) E.L.T. 684 (A.P.). The paras (4) and (5) of the Order is reproduced below :- It is not necessary to deal with the matter in any detail as the controversy is now set at rest, after the decision of the learned Single Judge, by an Explanation inserted by Clause 47 of the Finance Act, 1982 (Act 14 of 1982) with retrospective effect from 1-10-1975. It may be useful to extract the entire explanation inserted. Explanation - For the purposes of this sub-clause, the amount of the duty of excise payable on any excisable goods shall be the sum total of - (a) the effective duty of excise payable on such goods under this Act; And (b) the aggregate of the effective duties of excise payable under other Central Acts, if any, providing for the levy of duties of excise on such goods, and the effective duty of excise on such goods under each Act referred to in Clause (a) or Clause (b) shall be, - (i) in a case where a notification or order providing for any exemption (not being an exemption for giving credit with respect to or reduction of duty of excise on such goods e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le doubt that what can be deducted from the cum-duty price is the actual amount of Excise duty paid and not what is otherwise payable. We may point out that the above Explanation has been inserted after the learned Single Judge disposed of the writ petition in favour of the assessee. As the Explanation is now before us and has retrospective effect from 1-10-1975, we have to give effect to the Explanation. Doing so, we find the assessee s contention unacceptable. 5. For the aforesaid reasons, we allow this appeal and hold that in computing the amount of duty of excise deductible from the cum-duty price, the effective amount of duty of excise payable on the goods under assessment shall alone be taken into account. In the circumstances, there shall be no order as to costs." It follows from a close reading of the above portion of the judgment that contention of Shri M. Chandrasekharan is answered. 10. Accordingly, we set aside the impugned order and restore the Assistant Collector s orders to the extent they cover demands made on the respondents following issue of show cause notice and adjudication proceedings. 11. However, it appears that certain demands were raised on the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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