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TMI Blog2007 (7) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the notification issued in respect of Uttranchal and Himachal Pradesh the industries situate in the areas specified in the said notification have been exempt from payment of excise duty and additional duty of excise leviable under the Central Excise Act, the Additional Duties of Excise (Goods of Special Importance) Act, 1957 and the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978. 3. The Parliament has enacted the Industries (Development and Regulation) Act, 1951 (for short: IDRA). Section 9 of the said Act reads as follows:- "S.9. Imposition of cess on scheduled industries in certain cases - (1) There may be levied and collected as a cess for the purpose of this Act on all goods manufactured or produced in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Development council is established; (b) To promote improvements in design and quality with reference to the products of such industry or group of industries; (c) To provide for the training of technicians and labour in such industry or group of industries; (d) To meet such expenses in the exercise of its functions and its administrative expenses as may be prescribed." 4. Pursuant to the provisions of Section 9, the Ministry of Industry (Department of Heavy Industry) issued an order dated 6.9.1985 levying a duty on tractors @ 1/8 per cent ad volerum. The Ministry of Industry, Department of Industries Development vide order dated 22.3.1990 imposed duty of excise as Cess on goods specified in the scheduled Industry of Transportat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at under the IDRA, a cess has been imposed upon the tractors. The question which first arises is whether tractors fall within the definition of automobile and therefore, can the cess be recovered under the Automobile Cess Rules, 1984 or not? 9. The first Schedule to the IDRA classifies different goods under different headings. Headings 7 and 10 of the First Schedule are relevant and read as follows:- "7. Transportation (1) Aircraft (2) Ships and other vessels drawn by power (3) Railway locomotives (4) Railway rolling stock (5) Automobiles (motor cars, buses, trucks, motor cycles, scooters sand the like) (6) Bicycles (7) Others, such as fork lift trucks and the like 10. Agricultural Machinery (1) Tractors, harvesters and the like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on tractors cannot be recovered under the Automobile Cess Rules. 13. Though there is no manner of doubt that cess has been levied on tractors, the respondents have failed to point out to us that any machinery has been prescribed under law for recovery of the cess. Therefore, we have no other option but to hold that the cess leviable on tractors cannot be recovered till the rules are framed or executive instructions are issued for recovery and collection of the cess. 14. In view of the fact that we have held that there is no machinery provided for collection of recovery of cess, we overrule the preliminary objection raised by the respondents that the petition is pre mature. Since there is no machinery provided, the petitioner has no for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act. Therefore, we are of the view that the petitioner is liable to pay the cess on tractors as well as education cess. 17. The contention of the petitioner that the Education cess is levied @ 2% of the aggregate of the duties and since the petitioner has been exempted from paying excise duty, this 2% cess cannot be calculated, is not tenable. The excise duty can always be calculated even if it is not collected and on this notional calculation, the education cess can be calculated. This cess has to be collected in terms of the Finance Act. 18. In view of the above discussion, we reject the contention of the petitioner that it is not liable to pay the cess leviable under the IDRA or the Education Cess levied under the Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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