TMI Blog2020 (12) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to excisable goods set forth in the Fourth Schedule to the Central Excise Act 1944 - Since the 'SKO is an excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944, therefore, the petitioner was not eligible to make a declaration under the Scheme in view of Section 125 of the Finance (No.2) Act 2019. Undisputedly, Superior Kerosene Oil is mentioned in the Fourth Schedule although no rate of duty has been provided. If rate of duty has not been provided it shall merely mean that no duty is leviable in the absence of rate of duty. It does not mean that such goods are not excisable. All the goods mentioned in Fourth Schedule to the Act, 1944 shall continue to be excisable goods unless the goods is removed from the Schedule by an amendment. Section 174 of the CGST Act has not repealed the Central Excise Act, 1944 as respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution. The Central Excise Act, 1944 as amended by Act 18 of 2017 has been enacted with respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution which includes S.K.O. Deletion of SKO from the Fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t length on 20.11.2020 and the submissions made by learned counsels for the parties were noted. Submission on behalf of the petitioner 4. Learned counsel for the petitioner has submitted as under :- (i) A show cause notice dated 17.10.2007 under the Central Excise Act, 1944 was issued to the petitioner for excise duty of ₹ 2,96,99,001/- not paid for the period from 01.11.2002 to 31.03.2005. Penalty was also sought to be imposed under Section 11-A of the Central Excise Act 1944 read with Rule 25 of the Central Excise Rules, 2002. (ii) A scheme known as Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 was enacted by Finance (No.2) Act, 2019. Section 124 of the Finance Act, 2019 provides that tax dues relatable to a show cause notice pending as on 30.06.2019 for more than ₹ 50 lacs shall be available to a declarant to give him relief of 50% of the tax dues. Section 125(1)(h) of the Act 2019 provides that persons seeking to make declaration with respect to excisable goods set forth in the 4th Schedule to the Central Excise Act, 1944 shall not be eligible to make a declaration under this scheme. Disputed commodity i.e. SKO is mentioned in the 4th Sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that SKO continues to be an excisable goods falling under the 4th Schedule of the Central Excise Act. Facts 7. Briefly stated facts of the present case are that the petitioner is engaged in the manufacturing and clearance of various petroleum products falling under Chapter 27 of the Central Excise Tariff Act, 1985 (hereinafter referred to as the Tariff Act ). During the period 01.11.2002 to 31.03.2005 petitioner paid Central Excise duty on the basis of Central Excise invoice in which value was shown much lower than actual price recovered by the petitioner from the buyers as per the commercial invoices in respect of Superior Kerosene Oil (SKO). Consequently, a show cause notice dated 17.10.2007 under Section 11 of the Central Excise Act, 1944 (hereinafter referred to as the Act 1944 ) was issued to the petitioner by the Commissioner of Central Excise, Lucknow, requiring them to show cause as to why Central Excise duty amounting to ₹ 2,96,99,001/- short paid for the period from 01.11.2002 to 31.03.2005 may not be recovered under Section 11-A and penalty under Section 11-AC of the Act, 1944 read with Rule 25 of the Central Excise Rules, 2002, be not imposed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016, Article 246-A was inserted providing for Special Provision with respect to goods and service Tax. By Section 17 of same Amendment Act, the 7th Schedule to the Constitution was amended by substituting in list 1 - Union List, the entry 84 as under :- Entry 84 of List 1 Union List 12. Duties of excise on the following goods manufactured or produced in India, namely :- (a) Petroleum Crude; (b) High Speed Diesel; (c) Motor Spirit (commonly known as petrol); (d) natural gas (e) aviation turbine fuel; and (f) tobacco and tobacco products. 13. In K.C. Sachdeva Vs. State 1976 Cri.L.J. 1208(para 4) learned Single Judge has observed that the Petroleum includes Kerosene. In its own case i.e. in Indian Oil Corporation Limited Vs. Commissioner of Central Excise Vadodara (2010) 12 SCC 750 Hon ble Supreme Court while referring to the Chapter heading 27 of the erstwhile Central Excise Tariff Act 1985 and Notification No.5/98-CE dated 2.6.1998 and Notification No.5/99-CE dated 28.2.1999 noticed the Notification in which it is mentioned that Kerosene is any hydro carbon oil (excluding Colza Oil and white spirit) which has a smoke point of 18 mm or more. 14. It appears t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merated in the Fourth Schedule are excisable goods in terms of the provisions of Section 2(d), read with Section 2(f) and are liable to duty at the notified rates under the charging Section 3 of the Act. 17. Manufacture is the taxable event under the Central Excise Act, 1944 while under Section 9 of the CGST Act/UPGST Act, the event of taxation is the supply of goods or services except the supply of alcoholic liquor for human consumption. Sub-Section 2 of Section 9 of the CGST Act/UPGST Act empowers to levy tax on supply of petroleum crude, high speed diesel oil, motor spirit, natural gas and aviation turbine fuel shall be levied with effect from such date as may be notified by the Government on the recommendations of the Council. Thus, GST may be levied even on such goods which are excisable goods under the Central Excise Act, 1944. Therefore, Superior Kerosene Oil (SKO) shall continue to be an excisable goods under the Central Excise Act, 1944 even if GST on supply of Kerosene Oil (PDS) is levied under the GST laws. 18. Perusal of the Fourth Schedule to the Central Excise Act, 1944 and the provisions of Section 2(d) read with Section 2(f)(ii) leaves no manner of doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Seventh Schedule to the Constitution which includes S.K.O. 22. The petitioner has sought the relief No. (c) and (d) to delete SKO from the Fourth Schedule of Central Excise Tariff Act, 1944. There is no such Act. The relief sought is without substance. Apart from this, inclusion of SKO in the Fourth Schedule of the Act, 1944 is not violative of Section 174 of the CGST Act, 2017, for detailed reasons given in the foregoing paragraphs. 23. Sabka Vishwas Scheme is a complete code in itself. An earlier scheme known as Kar Vivad Samadhan scheme was considered by Hon'ble Supreme Court in the case of Union of India Vs. Nitdip Textile Processors Pvt. Ltd. 2011 (273) ELT 321 (SC) : (2012)1 SCC 226 and it was held that such a scheme is a complete code in itself. 24. Provisions in Chapter V of the Finance (No.2) Act, 2019, whereby Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 has been enacted; is an offer by the Government to settle tax arrears locked in litigation at a substantial discount. Section 124 Finance (No.2) Act 2019 provides the slabs of tax arrears and the discount slabs in percentage for payment by an applicant/declarant to settle the dispute. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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