TMI Blog1989 (1) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... s however given proforma credit of the said duty under the Notification under Rule 56-A. On the final product manufactured, the Petitioner claimed and the Department granted a reduction in duty under Notification No. 46/70. This pertained to the period 2nd January, 1970 to 19th October, 1971. The Office of the Superintendent, Central Excise, by its Show Cause Notices dated lst/2nd January, 1971, 2nd January, 1971 and 30th November, 1971 raised a demand in the sum of Rs. 46,489.20, Rs. 1,66,850.80 and Rs. 1,66,999.84 respectively. According to the Department, the Petitioner was not entitled to claim benefit of both the Notifications and the duty had been shortly levied. Hence the amounts mentioned in the Show Cause Notices were payable by the Petitioner to the Department. The Petitioner by its replies dated the 9th March, 1971 and 28th December, 1971 inter alia contended that there was no bar from claiming benefit under both the Notifications. The Petitioner's product complied with the requirements of the Notification No. 46/70 as the raw material qualified the requirement of being duty paid at the time of assessment and, therefore, the Petitioner was eligible for reduction in duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad availed of the proforma credit in respect of the duty that was paid on the raw material (ingots). In effect, it meant that at the time of using such raw material after availing of the proforma credit, the same became non-duty paid. By using such non-duty paid raw material in the further manufacture of aluminium articles, the Petitioner did not fulfil the aforesaid conditions stipulated in the Notification No. 46/70. Consequently, the Petitioner was not eligible to the concessional rate of duty under that Notification. Had the Petitioner not availed of the proforma credit in respect of the duty that was paid on the ingots, it could have definitely been eligible for the concessional rate of duty under Notification No. 46/70. It is this latter part of the reasoning of the Assistant Collector which found favour with the Appellate and the Revisional Authorities that was seriously assailed by Shri Patel in the present proceedings. According to Shri Patel the Petitioner had paid the requisite duty on the raw material used in the manufacture of its final products. All that the Petitioner had been granted was the proforma credit in respect of that duty. This was done not by refunding to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Digvijay Cement v. Union of India, 1986 (25) E.L.T. 879 (902). 5. Shri Patel further submitted that there are several Notifications similar to one relevant to the present Petition with same conditions. Wherever the Government did not want to give benefit both under exemption Notification and Rule 56-A, a specific proviso is added to incorporate such a condition. He placed reliance on various Notifications wherein the benefit of two Notifications was specifically excluded by insertion of a proviso to the Notification. Since such a proviso was absent in the present Notification, it was not open to read in the present Notification a curtailment of benefit under the exemption Notifications. 6. In order to appreciate the controvercy at hand it may be convenient to peruse the relevant Notifications. Notification No. 46/70 has provided an exemption on aluminium and its products provided the prescribed amount of duty of excise or the additional duty levied under Section 2A of the Indian Tariff Act, 1934, as the case may be, has already been paid. The extent of exemption from duty is Rs. 850/- per metric tonne. 7. Rule 56-A (Notification No. 91/67) provides for special procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods mentioned therein from payment of excise duty altogether. The only requisite condition for grant of the said concession is that the prescribed amount of duty of excise has already been paid on the raw material. In our judgment, the Petitioner by availing of the proforma credit under Rule 56-A is not deprived of the benefit under the Notification No. 46/70. The Petitioner has paid the requisite duty on the raw material used in the manufacture of its final product. The duty so paid has at no point of time been refunded to the Petitioner. Therefore, it cannot be held that merely because the Petitioner has availed of the proforma credit in terms of the benefits granted by Rule 56-A (Notification No. 91/67), it is deprived of the concession and the rate of duty on the finished product provided under Notification No. 46/70. Under Rule 56-A (Notification No. 91/67) the Petitioner has been given a proforma credit which can be availed of only at the time of the clearance of the finished product and not otherwise. Such relief, which is conferred on the Petitioner by Rule 56-A (Notification No. 91/67) cannot have the effect of the raw material used in the manufacture of the final product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an exemption he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. What the legislature intended to be done or not to be done can only be legitimately ascertained from that what it has chosen to enact either in express words or by reasonable or necessary implication. (M/s. Hemraj Gordhandas v. H.H. Dave, 1978 Excise Law Times 350). In this view of the matter, it will have to be held that the benefit conferred by both the rule and the Notification are self-contained and independent. If a person is within them, he will be entitled to their benefits. This cannot be denied on the ground that he has availed of the benefit one or the other. However, if the benefit under an exemption Notification is subject to the condition that it will not apply if benefit under any other Notification is availed of, only in such a case the manufacturer will have the option to avail the benefit of only one Notification. In other words, there is no bar to avail the benefit of the proforma credit, set-off and the exemption notification simultaneously so long as he fulfills the conditions and follows the procedure embodied in the rule and the notification unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 46/70 would not be available on the ground that the benefit under Notification No. 91/67 has been availed of. 11. Shri Desai, the learned Counsel appearing on behalf of the Respondents, however, submitted that the present petition is not tenable under Article 226 of the Constitution of India as the concerned authorities have applied the provisions of law to the facts of the case and their finding cannot be interfered with under Article 226 of the Constitution of India. In our judgment, there is no merit in the aforesaid contention. Once it is found that the concerned authorities have misconstrued the relevant provisions of the notifications and they have failed to give effect to the true purport and effect of the same thereby casting a heavy monetary liability on the petitioner which cannot be justified in law. The present petition will have to be held as maintainable and the relief claimed will have to be granted. 12. On the merits of the petitioner's claim, Shri Desai submitted that the petitioner has taken the benefit of the proforma credit and hence it is not entitled to the benefit of the Notification No. 46/70. The petitioner has taken proforma credit and has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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