TMI Blog2010 (7) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... ons - application can never be a ground for adjournment. - E/431, 643 and 2505-2545/2009 - 469-511/2010-EX(PB) - Dated:- 8-7-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY : S/Shri Sunil Kumar and R.K. Verma, DRs, for the Appellant. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Heard the learned DRs. None present for the respondents. 2. Records disclose that during the hearing of miscellaneous matters the parties were represented by their Advocates. Even when the matters were adjourned on the last occasion, the date was given with the consent of the learned Advocate and the learned DR. Yet there is no representation on behalf of the respondents at the time of hearing of the matters. 3.We have perused the records with the assistance of the learned DRs. 4. In all these matters the department challenges the order passed by the Commissioner (Appeals) allowing the claim of refund filed by the respondents in relation to education cess and higher education cess paid by them during the relevant period on the ground that they were not liable to pay said cess as they have opted for pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option to pay the duty of excise on the basis of such factors as may be relevant to production of such goods and at such rate as may be notified for this purpose, subject to such limitations and conditions, including those relating to interest or penalty, as may be specified in such notification. (ii) The Central Government may also specify by notification the manner of making an application for availing of the special procedure for payment of duty, abatement, if any, that may be allowed on account of closure of a factory during any period, and any other matter incidental thereto". 8. The term 'duty' was defined under Rule 2(e) of the said Rules to mean the duty payable under Section 3 of the Central Excise Act, 1944. The definition clause in Rule 2 also clarified under item No. (i) that the words and expressions used in the said Rule and not defined but are defined in the Act shall have the meaning respectively assigned to them in the said Act. 9. Section 3 of the said Act refers to duties specified in first schedule and second schedule to the Central Excise Tariff Act, 1985 to be levied. In terms of sub-section (i) thereof, there shall be levied and calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisable goods as they apply in relation to the levy and collection of the duties of excise on such goods under the Central Excise Act, 1944 or the rules, as the case may be, would disclose that the provisions of two Acts are independent from each other and merely because education cess is defined as the excise duty, it could not be construed that the cess levied under Finance Act should also be exempted under the said notification even in the absence of clear specification in that regard under the said notification". 12. Before arriving at the said finding the Tribunal had taken into consideration the various provisions of law of the said Act as well as of the Finance Acts and has held that the cess so imposed cannot be construed as forming part of the duty levied under Section 3 of the said Act. Obviously, therefore, education cess and higher education cess cannot be said to be part of the compounded levy determined under the compounded levy scheme in terms of Notification No. 34/2001-C.E., dated 28-6-2001 read with Rule 15 of the said Rules. 13. Clause 3(1) of the said notification provides that a manufacturer whose application has been granted under paragraph 2 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at purpose. It does not relate to exemption of duty liability imposable and recoverable under other statutory provisions, once he opts for the compounded levy scheme. On the other hand, considering the phraseology of Rule 15 read with Rule 2(e) of the said Rules, it is evident that the scheme under the said Rule would apply to the duties payable under Section 3 of the said Act. If the contention sought to be raised on behalf of the assessee is accepted, it would virtually result in construing the Rule 15 of the said Rules as granting exemption from payment of all the duties payable under any other statute once the manufacturer opts for compounded levy scheme. Rule 15 nowhere discloses any such intention of the legislature even remotely. It is true that in the letter dated 25-8-2008 issued by the Board, there was reference to the Board's instruction dated 19-12-2007 which related to the compounded levy scheme for pan masala containing tobacco and it was stated therein that no education cess or higher education cess would be leviable over and above the amount to be paid under the compounded levy scheme. It is not understood as to on what basis the Board had issued those instructions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of this, I would not be able to appear before your good offices for hearings on 8-7-2010. In view of this, I would request your good offices to kindly adjourn the hearing fixed for 8-7-2010 and oblige. The inconvenience caused to you is highly regretted". 18. The above letter was received in the open Court at 1.15 p.m. by the Court Master. Thereafter, it was brought to the notice of the Bench. Since matters were already heard and order was already delivered in the open Court nothing could be done in relation to the application comprised under the said letter. 19. Even otherwise there is no substance in the application. The date of hearing was fixed with the consent of the learned Advocate and the learned DR. The matters were adjourned on so many occasions. It was specifically made known to the representatives of the parties that matters would not be adjourned any further. 20.Besides the ground disclosed in the application can never be a ground for adjournment. 21. Besides, neither the learned Advocate nor the representative of the party is entitled to presume that the Tribunal would be obliged to adjourn the matter moment a request for the same is sent. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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