TMI Blog1985 (6) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The appellant once again submitted a classification list on 16th May 1972. describing the product manufactured by it as cushion repair compound and paid duty under protest. A fresh classification list was again filed on 1st December 1972. The contention of the appellant was that cushion repair compound which is admittedly not used for retreading or resoling of tyres as mentioned in Notification No. 71/68-C.E., dated 1st April 1968 was exempted from excise duty. It will be useful at this stage to refer to the Notification dated 1st April 1968 which reads as follows- "In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, and in supersession of the Notification of the Government of India in the Ministry of Finance (Dept. of Revenue) No. 31/64-Central Excise, dated 1st March 1964, the Central Government hereby exempts all rubber products, in the form of plates, sheets and strips unhardened whether vulcanised or not., and whether combined with any textile material or otherwise (other than the products which are made either wholly or partly of rubber and which are used for the resoling or retreading of tyres, including the products commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d tread packing strips, from the whole of duty of excise leviable thereon." This Notification referred to exemption of cushion compound falling under sub-item (2) of Item 16-A of the First Schedule to the Excises and Salt Act (1 of 1944) (hereinafter referred to as the Act) and used within the factory of manufacture for further production of rubber products falling under the said sub-item and which are used for resoling or retreading of tyres including the products commonly known as tread rubber, camel back, cushion gum, tread gum and tread packing strips, from the whole of duty of excise leviable thereon. In respect of cushion compound covered by this notification there was a complete exemption from excise duty. The learned Judge elaborately reproduced the pleadings and the arguments advanced before him and came to the conclusion that the exemption claimed by the appellant could not be granted. He, however, made an order that if the cushion compound had been used within the factory itself, then it was entitled to exemption from payment of excise duty. Obviously, the learned Judge had in mind the exemption granted by the Notification dated 14th October 1972. It, however, appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May 1967 was again amended by stating that rubber products falling under sub-items (1) and (2) of this item and specified in column (2) of the table below are exempt from the payment of so much of the excise duty leviable thereon as is in excess of the amount specified in the Corresponding Entry in column (3) of the said Table : TABLE Sl. No. Description Amount Kg P. Rs. 1. Latex Foam sponge 15 2 2. All products made either wholly or partly of rubber and which are used for the resoling or retreading of tyres, including the products commonly known as tread rubber, camel back, cushion compound, cushion gum, tread gum, tread packing strips 10 1 3. All other products Nil The other relevant notification is dated 1st April 1968, which we have already reproduced earlier. 6. The contention of the learned counsel for the appellant-company before us is that admittedly cushion compound is not used in the process of resoling or retreading of tyres and is used only for the purpose of repairs of the carcass of the tyres. Therefore, according to the learned counsel, cushion compound m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eadings and in the revision application the appellant-company has relied on the circular referred to above. In this revision application, the Government of India passed a four line order which reads as follows - "Having regard to all the facts and circumstances of the case, the Government of India are pleased to allow the revision application and direct that consequential relief be granted to the petitioner." 8. In addition to this, the learned counsel for the appellant also relied on the insertion of the words 'or repair' in the notification dated 1st April 1968 and the contention is that since it was only with effect from the 1st of March 1973 that the notification dated 1st April 1968 came to be amended so as to include the words 'repair of tyres', it must be understood that products like tread gum which were used for repairs prior to this date were not subject to excise duty. 9. Mr. Somasundaram appearing on behalf of the Department, has pointed out to us that the notification in question which is dated 1st April 1968 must be construed on its own terms and that the power of the authorities to construe the notification in the exercise of their quasi-judicial function canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or retreading of tyres. The second part is an inclusive part and the inclusive part specifies certain kinds of products such as tread rubber, camel back, cushion compound, cushion gum, tread gum and tread packing strips. While construing the Notification issued in exercise of the Statutory power, the notification must be so read as to give effect to all parts of the Notification. Instead of specifying in two separate portions of the notification, namely, products which are given exemption and products which are not given exemption, the authority which has issued the notification has indicated the products which are not entitled to exemption by putting in a clause of exclusion by using the phraseology 'other than'. While enumerating the products which are not entitled to exemption, the notification has referred to certain products which were not used for resoling or retreading of tyres and since those products were not to be given exemption they were included in the inclusive part of the bracketed portion. When the latter part of the bracketed portion used the words 'including the products', these words had clearly a reference to products other than those which fall in the first par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication and the circumstances that that notification has been amended at a subsequent period of time cannot control the plain meaning of the words of the notification. 11. It is true that it was argued before us by the learned counsel for the department that a similar case of the appellant has been rejected on an earlier occasion when the revision application of the appellant was rejected by the Government of India on 5th October 1972. The principles of res judicata do not apply in matters relating to taxation and in any case when the matter has come to this Court for the first time, the appellant cannot be prevented from canvassing what according to the appellant should be the correct construction of the Notification dated 1st April 1968. The learned Judge has remanded the matter to the authorities in order to ascertain whether there was any captive consumption of cushion compound. As we have already pointed out, such does not appear to be the case of the appellant, but since some indulgence has been shown to the appellant, we are not entitled to interfere with the direction in the absence of an appeal by the Department. In our view, there is thus no substance in the appeal. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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