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2015 (10) TMI 2352 - CESTAT MUMBAI

2015 (10) TMI 2352 - CESTAT MUMBAI - TMI - Benefit of concessional rate of duty under notification 8/99 dated to 8.2.99 - Non production of clarification on whose basis exemption claimed - Held that:- so far as availability of exemption is concerned the matter is settled by the decision of Hon ble Supreme Court in case of Modi rubber Limited (1986 (8) TMI 60 - SUPREME COURT OF INDIA) in favour of the revenue. We also find that so far as invocation of provisions relating to penalty are concerned .....

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led to refund of the penalty amount adjusted earlier. - Appeal disposed of. - APPEAL No.E/59 & 60/07 - Dated:- 11-8-2015 - Mr.Anil Choudhary, Member (Judicial) And Mr. Raju, Member (Technical) For the Petitioner : Shri.Gajendra Jain, Advocate For the Respondent : Shri.Sanjay Hasija, Supdt. (AR), ORDER Per: Raju 1. The appellants have filed two appeals. The appellants are manufacturers of impregnated quoted fabrics. They had claimed the benefit of concessional rate of duty under notification 8/99 .....

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that the exemption 8/99 grants exemption from duty of Excise which includes additional duty leviable under additional duty of Excise (goods of special importance) act 1957. The appellants claimed this on the basis of a clarification dated 7.5.99 issued by member (budget). They could not produce the said clarification. In the order in appeal there is a reference to some news item wherein it was suggested that the said exemption is available. However no such clarification was produced. The relied .....

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y different in this case. The appellants also relied on the decision of Honble Supreme Court in case of Orient fabrics 2003 (158)ELT 545 wherein the following has been held: 5. In order to appreciate the issue, it is relevant to set out the sub-section (3) of Section 3 of the Act, as applicable in this matter and which runs as under : SECTION 3 : Levy and collection of additional duties : (1) (2) (3) The provisions of the Central Excises and Salt Act, 1944 and the rules made thereunder includin .....

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oods. It only provides for application of the procedural provisions of the Central Excises and Salt Act, 1944 and the Rules made thereunder. It is no longer res integra that when the breach of the provision of the Act is penal in nature or a penalty is imposed by way of additional tax, the constitutional mandate requires a clear authority of law for imposition for the same. Article 265 of the Constitution provides that no tax shall be levied or collected except by authority of law. The authority .....

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2) (3) The provisions of the (Central Excise Act, 1944) (1 of 1944), and the rules made thereunder, including those relating to refunds, exemptions from duty, offences and penalties, shall, so far as may be, apply in relation to the levy and collection of the additional duties as they apply in relation to the levy and collection of the duties of excise on the goods specified in sub-section (1). 8. A comparison of the amended provisions with the un-amended ones would clearly demonstrate that the .....

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nly duties of Excise leviable under the specified acts. The additional duty of Excise (goods of special importance) act 1957 is not the specified under the said notification. The notification has to be read strictly. He relied on the Hon ble Supreme Court decision in the case of Modi rubber Limited 1986 (25) 849. The particularly relied on paragraph 8 and 9 of the said decision which read as follows: 8. The first question that arises for consideration on these facts is as to what is the true imp .....

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e first question of interpretation of the expression duty of excise in the notifications dated 1st August 1974 and 1st March 1981. 9. Both these notifications, as the opening part shows, are issued under Rule 8(1) of the Central Excise Rules, 1944 and since the definition of duty in Rule, cl. (v) must necessarily be projected in Rule 8(1) and the expression duty of excise in Rule 8(1) must be read in the light of that definition, the same expression used in these two notifications issued under .....

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lt Act, 1944, it must be held to cover all duties of excise whether leviable under the Central Excises and Salt Act, 1944 or under any other enactment. The respondents sought to support this contention by pointing out that whenever the Central Government wanted to confine the exemption granted under a notification to the duty of excise leviable under the Central Excises and Salt Act, 1944, the Central Government made its intention abundantly clear by using appropriate words of limitation such as .....

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1st April 1961, Notification No. 23/55-C.E., dated 29th April 1955 and similar other notifications. But, here said the respondents, no such words of limitation are used in the two notifications in question and the expression duty of excise must, therefore, be read according to its plain natural meaning as including all duties of excise, including special duty of excise and auxiliary duty of excise. Now, it is no doubt true that in these various notifications referred to above, the Central Gover .....

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does not follow that in the absence of such words of specificity, the expression duty of excise standing by itself must be read as referring to all duties of excise. It is not uncommon to find out that the legislature sometimes, with a view to making its intention clear beyond doubt, uses language ex abundanticautela though it may not be strictly necessary and even without it the same intention can be spelt out as a matter of judicial construction and this would be more so in case of subordinat .....

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her notifications relied upon by the respondents. But, that does not necessarily lead to the inference that the expression duty of excise in these notifications was intended to refer to all duties of excise including special and auxiliary duties of excise. The absence of these words does not absolve us from the obligation to interpret the expression duty of excise in these Notifications. We have still to construe this expression what is its meaning and import and that has to be done bearing in .....

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