TMI Blog1984 (6) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... c duty of customs at 60%, auxiliary duty at 15% and additional duty at 8%. The Central Government, on 16th December 1978, issued ad hoc exemption Order No. 302, in exercise of its powers under Section 25(2) of the Customs Act, 1962 read with Section 35(4) of the Finance Act, 1978 exempting 3.20 tonnes of MEG from so much of that portion of the auxiliary duty of customs leviable thereon under Section 35(1) of the said Finance Act as was in excess of 5% ad valorem. It is IOC s contention that the present consignment formed part of the 3203 tonnes of MEG covered by the said exemption order. This point was not in dispute before the lower authorities. In fact, the Bill of Entry was filed by a Custom House agent in the name of CPC a/c IOC. IOC filed a refund claim for the difference between the duty paid in accordance with the assessment made and that payable in accordance with the ad hoc exemption order. The claim was for an amount of ₹ 94,490.06. The Asstt. Collector rejected the claim on the ground that the ad hoc order was in respect of the auxiliary duty leviable under the Finance Act, 1978 whereas the goods were imported during the currency of the Finance Act, 1979. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charging section - after 31-3-1979 and the provisions of Section 6 of the General Clauses Act, 1897 applied to the situation. The exemption conferred by the ad hoc order is thus saved by Section 35 of the Finance Act, 1978 and Section 6 of the General Clauses Act. (v) Section 24 of the General Clauses Act covers repeal of enactments which are then re-enacted with or without modification. Section 35 of the Finance Act, 1978 was deemed to have been repealed after 31-3-1979 and it was re-enacted as Section 31 of the Finance Act, 1979. Therefore, the ad hoc exemption order issued under the Finance Act, 1978 should be deemed to have been issued under the Finance Act, 1979. Reliance was placed in this connection on the decision of the Madras High Court in the case of Madura Coats v. Asstt. Collector of Central Excise 1978, E.L.T. J 511. (vi) If two views are possible, the notification must be construed in favour of the subject. 5. The submissions in reply put forth by the learned SDR, on behalf of the respondent, may be summarised thus :- (i) The ad hoc exemption order was with respect only to the levy of auxiliary duty under the Finance Act, 1978. The order does not g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s things done or omitted to be done before such cesser; and Section 6 of the General Clauses Act, 1897, shall apply upon such cesser as if the said sub-section had then been repealed by a Central Act. * * * * Sub-sections (3) and (4) are not relevant for our present purpose except that sub-section (4) confers on the Central Govt. the power to exempt goods from auxiliary duty and this power has been invoked in the ad hoc exemption Order No. 302. It may be seen that Section 35(1) ceased to have effect after 31-3-1979 except as respects things done or omitted to be done before such cesser. It was only upon such cesser that Section 6 of the General Clauses Act was attracted as if the said Section 35(1) had been repealed by a Central Act. It is not, therefore, correct, as the learned Counsel for IOC has contended before us, that Section 35(1) stood repealed as on the date of filing of the bill of entry for home consumption of the subject goods, namely, 28-3-1979. Therefore, the provisions of Section 6 of the General Clauses Act have no application to the facts of the present case. On 28-2-1979, the Finance Bill, 1979 was introduced in the Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s presented under Section 46 of the Customs Act. On that date.,Section 35 of the Finance Act, 1978 as well as Clause 31 of the Finance Bill, 1979 were in force. However, the auxiliary duty leviable in terms of Section 35 of the Finance Act, 1978 stood exempted in respect of all imported goods by Notification No. 61 dated 1-3-1979 (as well as, in the present case by the ad hoc exemption order) but the auxiliary duty in terms of Clause 31 of the Finance Bill, 1979 was in force. No exemption order or notification exempting the subject goods from this levy has been produced before us. We do not think that Section 24 of the General Clauses Act relied upon by the Counsel for IOC has any application to the facts of the present case. As on the date of filing of the bill of entry for clearance of the subject goods for home consumption, there was no repeal of the Finance Act, 1978. The deemed repeal and the application of Section 6 of the General Clauses Act and, if at all, of Section 24 of General Clauses Act would only be after 31-3-1979 till which date Section 35 of the Finance Act, 1978 was in force. The Counsel for IOC has cited the Madras High Court s decision in the Madura Coats ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 35 of the Finance Act, 1978 were in force; they had not cessed to have effect nor did the deemed repeal come about till after 31-3-1979. No doubt, the levy of auxiliary duty under the Finance Act, 1978, stood completely exempted on 28-3-1979 by virtue of Notification No. 61-Cus., dated 1-3-1979. However, the auxiliary duties leviable in terms of Clause 31 of the Finance Bill of 1979 had come into force on 1-3-1979 and, as on 28-3-1979, there was no exemption granted in respect of the subject goods from this levy. As such, we do not think that the learned Counsel s contentions in this behalf have any force. It is not as if, in the facts and circumstances of the case, two views are possible and the notification (ad-hoc exemption order in the present case) has to be construed in favour of the assessee in the present case. In our view, no two views are possible. We do not accept the SDR s contention that the IOC has no locus standi in the matter. Though the ad hoc exemption order refers to import by CPC, the bill of entry was filed by the Custom House Agent in the name of the CPC A/c IOC. Moreover, the locus standi of IOC in the proceedings has not been questioned before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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