TMI Blog2001 (2) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... construed. Where a condition precedent is not fulfilled before claiming any exemption, such benefit would not be admissible. - 863-864 of 1992 - - - Dated:- 15-2-2001 - B.N. Kirpal and Brijesh Kumar, JJ. [Judgment per : Brijesh Kumar, J.]. - The question that falls for consideration in these appeals is as to whether or not, the respondent has been rightly given benefit of Notification No. 16/83-C.E., dated 11-2-1983, issued by the Central Government under Rule 8(1) of the Central Excise Rules, 1944, in regard to the payment of additional Customs duty under Section 3(1) of the Customs Tariff Act, 1975, on the waste and scrap of imported Cellulose Acetate sheets. 2.We have heard Shri Mukul Rohtagi, learned Additional Solicitor General for the appellant and Shri V. Lakshmikumaran, learned counsel for the respondent. 3.The respondent, M/s. Presto Industries, is an industrial unit manufacturing combs and brushes, in Kandla Free Zone, from the imported Cellulose Acetate sheets. On certain given conditions, exemption from payment of excise duty is admissible to the manufacturer in the Free Trade Zone. So far it relates to the resultant waste and scrap of the imported raw m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 is exempted in respect of scrap for home consumption outside the Free Trade Zone, under Notification No. 16/83-C.E., therefore, no additional Duty in the nature of countervailing duty was liable to be paid. It was also found that the respondent had paid the Customs Duty on the scrap as required by Clause (b) to the Proviso to the Notification No. 16/83-C.E. The CEGAT upheld the order passed by the Collector of Customs (Appeals) finding that no additional duty of customs would be payable where Excise Duty is exempt under a Notification issued under Rule 8(1) of the Excise Rules 1944. It also relied upon the decision in M.R.F. Limited v. Union of India and Others, 1987 (32) E.L.T. 465 (Mad.) though on facts it stands on a different footing. 6.The case of the assessee further is that since no Excise Duty is payable, no additional duty under Section 3(1) of the Customs Tariff Act, 1975 can be levied as additional duty could only be equal to the Excise Duty for the time being leviable on a like article if produced in India or in case it is not so produced the excise duty which would be leviable on the class or description of articles to which the imported articles belongs. 7.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r case, may be determined by rules made by the Central Government in this behalf. …………………………………………………………………………… ……………………………………………………………………………. The provisions of the Customs Act, 1962 (52 of 1962), and(6) the rules and regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties, shall, so far as may be, apply to the duty chargeable under this section as they apply in relation to the duties leviable under that Act." A perusal of Section 3(1) of the Customs Tariff Act quoted above shows that on any article imported into India, a duty in addition may be levied to be called 'additional duty' equal to the excise duty for the time being leviable as may be in force on an item manufactured in India and in case it is not so manufactured, as may be leviable on the class or description of articles to which the imported article belong. It is also clear that the 'additional duty' is in addition to the Customs Duty levied under Customs Act, 1962 on any article which is imported into India. The Customs Tariff Act provides for the rates at which duties of Customs are leviable under Customs Act, 1962 as specified in the two Schedules. The additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade Zone, from the whole of the duty of excise leviable thereon under Section 3 of the Central Excises and Salt Act, 1944 (1 of 1944) : Provided that :- (a) such scrap or waste material is out of any goods brought into the said zone from a place outside India, and (b) such scrap or waste material is cleared for home consumption outside the said zone on payment of duties of customs leviable thereon under any law for the time being in force." The whole of the excise duty leviable under the Central Excises Salt Act, 1944 is liable to be exempted, on scrap or waste arising in the course of manufacture of any goods in the Kandla Free Trade Zone, which is imported from outside India and it is cleared for home consumption outside the zone on payment of duties of customs leviable thereon under any law for the time being in force. So far condition provided under clause (a) of the proviso there is no dispute. But as it relates to fulfilment of Clause (b) to proviso, it is in dispute. Admittedly additional duty leviable under Section 3(1) of the Customs Tariff Act has not been paid. Their case is that basic customs duty has been paid which fulfils the requirement. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 3 of the Customs Tariff Act, 1975, it failed to comply with the condition as contained in Clause (b) to the proviso to the proviso to the Notification No. 16/83-C.E., dated 11-2-1983. The onus of proof of fulfilment of condition subject to which an exemption may be admissible lies on the assessee or upon a party claiming benefit under the Notification as also held in the case of Motiram Tolaram and Another - 1999 (112) E.L.T. 749 (S.C.) = 1999 (6) SCC 375. So far the question of construing an exemption Notification is concerned, such Notifications are to be strictly construed. Where a condition precedent is not fulfilled before claiming any exemption, such benefit would not be admissible. 11.In the result it is found that due to non-payment of additional duty as prescribed under Section 3(1) of Customs Tariff Act, the respondent would not be entitled for the benefit of exemption from Excise Duty under Notification No. 16/83-C.E.. It was wrongly made admissible to the respondent. 12.In view of what has been discussed above, the appeals are allowed and the orders passed by the Collector of Customs (Appeals) and CEGAT are set aside and the order passed by the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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