TMI Blog2000 (5) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty on re-packed washing preparations removed under the brand name of ineligible persons on the plea that the said Chapter Note 6 under Chapter 34 of the Tariff was enforceable only from 13-5-94, when the Finance Bill 1994-95 was enacted, and that the provisions of the Provisional Collection of Taxes Act, 1931 (hereinafter referred to as the Act of 1931 ), were not applicable to the insertion of Chapter Notes. The Asstt. Commissioner of Central Excise, Calcutta, who adjudicated the matter observed that the Chapter Note 6 in Chapter 34 of the Tariff was inserted vide sub-clause (a) of Clause 62 of the Finance Bill, 1994 and that this sub-clause was given immediate effect by the declaration in the Finance Bill under the Act of 1931. He held that this Chapter Note was effective from 1-3-94 itself. With regard to the affixation of the brand name and the calculation of duty liability also, he did not find force in the submissions of the appellants. He confirmed the demand of Rs. 4,32,878/- and imposed a penalty of Rs. 5,000/-. The Order passed by the Asstt. Commissioner of Central Excise was confirmed by the Commissioner of Central Excise (Appeals), Calcutta. 2. The matter was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bulk packs to retail packs, or adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture. [refer Sl. No. (14) of the said 3rd Schedule at page B-29 in 1994 (70) E.L.T.] A declaration was appended to the Finance Bill, 1994 under the Act of 1931 as under :- It is hereby declared that it is expedient in the public interest that the provisions of Clause 61, sub-clause (a) of Clause 62 and sub-clause (b) of Clause 63 of this bill shall have immediate effect under the Provisional Collection of Taxes Act, 1931 (16 of 1931) . It is, thus, seen that the amendments of the Tariff as specified in the 3rd Schedule of the Bill, including the insertion of Note 6 in Chapter 34 of the Tariff, were covered by the declaration under the Act of 1931. 4. Under Section 3 of the Act of 1931, where a Bill to be introduced in Parliament on behalf of Government provides for the imposition or increase of duty of customs or excise, the Central Government may cause to be inserted in the Bill, a declaration that it is expedient in the public interest that any provision of the Bill relating to such imposition or increase shall have immediate effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 in Chapter 34 of the Tariff was that the central excise duty was imposed on the detergent powder re-packed from bulk packs to retails packs. As this Clause of the Bill provided for the imposition of central excise duty, it was covered by the provisions of Section 3 of the Act of 1931. 8. The Supreme Court in the case of Empire Industries Ltd. v. U.O.I. 1985 (20) E.L.T. 179 (S.C.) = 1986 (162) ITR 846 (S.C.) has explained the concept of process in excise law. In view of the principle laid-down therein and other relevant decisions, processes incidental or ancillary to packing are to be included in the process of manufacture; manufacturers in the sense of bringing the goods into existence as these are known in the market, is not complete until the detergent powder is packed in suitable packs [refer Collector of Central Excise, Calcutta v. East End Paper Industries Ltd. 1989 (43) E.L.T. 201 (S.C.) = 1990 (186) ITR 105 (S.C.)]. 9. It has been held in a number of decisions that when the process was described by the legislature itself as a process of manufacture, there could be no doubt about the manufacture as per the provisions of Section 2(f) of Central Excises Act, 1944. [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Bill, 989, Note 8 in Chapter 58 was similarly substituted. 11. In the case of M.C. Thakur v. Extrusion Processes Pvt. Ltd. - 1991 (54) E.L.T. 16 (Bombay), the Bombay High Court had held that the amendments with regard to Section 2(f) of the Central Excises Act, 1944 shall have immediate effect from the date of introduction of the Finance Bill in the Parliament under provisions of the Act of 1931. Para 8 from that decision is extracted below :- 8. Shri Thakkar, learned Counsel appearing on behalf of the respondents, submitted that if the amendment to the Central Excises and Salt Act, 1944 is found to be intra virus, still the respondents should be granted relief claimed under prayer d(1) which is an alternative prayer made by amending petition. By this alternative prayer, the respondents claimed refund of the excise duty recovered in respect of process of printing and lacquering of aluminium collapsible tubes and rigid cans from June 18, 1980 to August 25, 1980. Shri Thakkar submitted that the Finance Bill was introduced in Parliament on June 18, 1980 and the Bill became law on passing of Finance (No. 2) Act, 1980 with effect from August 25, 1980. The learned Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not to be confused or tested in reference to the measure by which the tax is assessed. Shri Justice Ranganathan concurring with the main judgment delivered by Shri Justice Venkatachaliah in the decision reported in AIR 1989 Supreme Court 516 and to which reference is made hereinabove examined the contention in a slightly different context as to whether the amendment attracts only the procedural aspect or imposes special duty or increases existing duty. Examining the provisions of the Central Excises and Salt Act, 1944 and the Amending Act, the learned Judge observed that having regard to the nature and content of the levy, it is obvious that the effect is of attracting not only the purely procedural and machinery provisions but also some of the charging provisions. The Supreme Court observed that the language of the Amending Act should be given a wider meaning and the provisions are self-contained and completely specified the scope of the charge either as a percentage of the Excise Duty normally chargeable under the Central Excises and Salt Act or as a percentage of the assessable value determined under Section 4 of the 1944 Act. In our judgment, the amendment carried out by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of duty or increase in the duty and, therefore, the inclusion of cost of printing and lacquering in the assessable value from June 18,1990, i.e. the date on which the Finance Bill was introduced in Parliament is perfectly justified. In our judgment, the respondents are not entitled to any relief and the original Petition is required to be dismissed. 12. As we have discussed above, the insertion of Chapter Note 6 in Chapter 34 of the Tariff had a direct bearing on the imposition of duty, and this amendment in the Tariff was not in the nature of shifting of exempted goods from one Tariff Item to another. Thus the Supreme Court s decision in the case of Pieco Electronics Electricals Ltd. v. CCE, Pune - 1996 (87) E.L.T. 577 (S.C.) was not applicable to the facts of the case. The amendment which is the subject matter for our consideration was in the Chapter Notes of the Tariff. It is not related to any exemption notification. In para 9 of their judgment, the Hon ble Supreme Court had observed that the Act of 1931 did not take account of exemption notifications for they apply only when goods are excisable to duty. The present facts are thus clearly distinguishable from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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