TMI Blog2020 (10) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in an office Memorandum dated 27.7.2016 issued by the Department of Economic Affairs, Budget Division, under Ministry of Finance, Govt. of India, which has been relied upon by the appellant while pursuing the refund application? HELD THAT:- On perusal of the amendments introduced vide Section 239 of the Finance Act, 2016, it clearly appears that the same would be applicable with the date of enactment i.e. 14.05.2016 inasmuch as no stipulation has been made to provide that the same would be applicable w.e.f. 01.04.2016. By virtue of said Section 239, the enactments mentioned in the Fifteenth Schedule have been repealed (incl. the repeal of mica cess levy). This is more so in view of the specific provision made in Section 241 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanating from the provisions contained in the statutory enactment. Appeal dismissed - decided against appellant. - Customs Appeal No.76973 of 2018 - FINAL ORDER NO. 75416/2020 - Dated:- 5-10-2020 - SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) Shri Sanjay Jain, Advocate for the Appellant (s) Shri A.K.Singh, Authorized Representative for the Respondent (s) ORDER The instant appeal has been filed by the assessee, M/s. Daruka International, against Order-in-Appeal dated 07.03.2018 passed by the learned Commissioner of Customs (Appeals), Kolkata, upholding the Order-in-Original dated 30.11.2017 passed by the learned Dy. Commissioner of Customs, Kolkata, whereby the refund claim has been rejected. 2. Briefly stated, the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 and before 14.05.2016. For the said purpose, it needs to be ascertained whether the date of repeal of mica cess would be 14.5.2016 i.e. the date of enactment of the Finance Act, 2016 (when the Finance Bill received the assent of the Hon ble President) or 01.04.2016 as mentioned in an office Memorandum dated 27.7.2016 issued by the Department of Economic Affairs, Budget Division, under Ministry of Finance, Govt. of India, which has been relied upon by the appellant while pursuing the refund application. 5. It would be noteworthy to reproduce the relevant portion of the amendment introduced vide the Finance Act, 2016 as below:- PART XVI REPEAL AND AMENDMENT OF CERTAIN ENACTMENTS 239. Repeal and amendment of certain enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 6 of the General Clauses Act, 1897 (10 of 1987), with regard to the effect of repeals. 241. Collection and payment of arrears of duties. - Notwithstanding the repeal or amendment of the enactments specified in the Fifteenth Schedule, the proceeds of duties levied under the said enactments immediately preceding the date on which the Finance Bill, 2016 receives the assent of the President,- (i) if collected by the collecting agencies but not paid into the Reserve Bank of India; or (ii) if not collected by the collecting agencies, shall be paid or as the case may be, collected and paid into the Reserve Bank of India for being credited to the Consolidated Fund of India. THE FIFTEENTH SCHEDULE (See se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trary conclusion can be drawn on the basis of contents of Office Memorandum dated 27.07.2016 as relied by the appellant. 7. I also note that the learned Commissioner (Appeals) has rightly relied upon the Hon ble Gujarat High Court s decision in the case of Gujarat Paraffins Pvt Ltd. (Supra), wherein the Hon ble Court observed that the speech of the Hon ble Finance Ministry cannot be considered to be a law unless the same is backed by the statutory provisions contained in the enacted law. The relevant portion of the decision of the High Court wherein the observation made by the Apex Court in B K Industries (Supra) has been duly considered and followed is extracted below: 25. In B.K. Industries (supra), the challenge before the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded before the Supreme Court that it was not open to the Government to go back upon the said decision and demand cess for the period subsequent to March 1, 1986. The Supreme Court while dismissing the writ petitions took the view that the Finance Minister s Speech is not the law and that the Parliament may or may not accept his proposal. The Supreme Court in paragraph 9 held as under : 9. We find it difficult to agree. It is not brought to our notice that the budget proposals contained in the Finance Minister s speech were accepted by the Parliament. The cess having been imposed by a Parliamentary enactment could be rendered inoperative only by a Parliamentary enactment. Such repealing enactment came only in the year 1987 with effe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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