TMI Blog2006 (3) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment years in question are 1984-85 and 1985-86. The respondent imported spirit from outside West Bengal for the assessment years in question in terms of rule 6 of the West Bengal Excise (Manufacture of Country Spirit in Labelled and Capsuled Bottles) Rules, 1979 (hereinafter referred to as "the Rules"). Apart from the fee which is payable by the manufacturer for the privilege of manufacturing of country spirit in labelled and capsuled bottles, an additional fee, was payable on the import of spirits. Initially, this fee which was introduced for the first time in 1981, was leviable at the rate of Rs. 0.60. The rate was reduced to Rs. 0.50 by subsequent amendment of rule 6. The respondent/assessee' claim for deduction of the amounts pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said amendment will be retrospective in its application? (2) Whether, on the facts and in the circumstances of the case and on a correct interpretation of section 2(10) of the West Bengal Excise Act, 1909 by applying the principles of 'ejusdem generis' the Tribunal was justified in law in holding that the privileged and specified fee as mentioned in rules 2 and 6 of the Excise Rules cannot be construed as the fee used in section 43B(a) of the Income-tax Act, 1961? (3) Without prejudice to questions Nos. (1) and (2) above whether on the facts and in the circumstances of the case, and on a correct interpretation of the income-tax law and the State excise law, the Tribunal was justified in holding that the fees payable by the assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reconsideration. The matter was accordingly remanded back to this court for disposal of the matter on the merits. When the matter was placed before this court it was argued by Mr. Mohan Parasaran, learned Additional Solicitor General, that the amount that had been levied on the respondent was in fact a countervailing duty. It was pointed out that the State Government was competent under entry 51 of List II to levy excise duty and countervailing duty and that the word "duty" under section 43B before its amendment would cover both duties. Mr. Joseph Vellapally, learned senior counsel appearing on behalf of the respondent, has submitted that this issue had never been raised at any stage of the proceedings. It was submitted that even befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge with regard to the manufacture of alcohol. Having said this, we are of the view that the respondent's grievance that the issue has not been squarely raised either before the Tribunal or in the reference application is strictly speaking correct. Nevertheless granting the benefit of the doubt to the Department that what was intended to be argued was that it was a countervailing duty, we cannot shut out what is a pure question of law from consideration. However, we feel that an opportunity should be granted to the respondent of meeting this case fairly. Accordingly, we set aside the decision of the High Court as well as the Tribunal and remand the matters back to the Tribunal for the purposes of deciding this issue alone. We make it clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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