TMI Blog2000 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... es' appeal required to be rejected, or the impugned order is required to be set aside and the appeal accepted." 2. The amendment to chapter note 6 referred to above is Note 6 to Chapter 39 of the Central Excise Tariff. Chapter 39 itself relates to 'Plastics and Articles Thereof' and the controversy is about clause (b) of Note 6 which came into force with effect from 1-3-1988 and reads as under :- "Notwithstanding anything contained in Note 3 to this Chapter, heading Nos. 39.01 to 39.14 shall also include primary forms obtained from conversion of another primary form, falling under the same heading; and such conversion shall amount to "manufacture". 3. The dispute in both the appeals relate to whether conversion of plastic materials fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 39.11 applied only to goods of a kind produced by chemical synthesis falling in the categories specified therein. Further, Rule 6 stated that in heading Nos. 39.01 to 39.14 the expression 'primary forms' applies only to the forms mentioned in that Note. 5. During the hearing of the cases, learned Sr. Counsel representing M/s. King Plastics explained that duty of excise is attracted only in the event of 'manufacture'. Conversion of goods from one form to another normally does not amount to 'manufacture' attracting central excise duty. This was the position in respect of plastics also until the amendment which incorporated a new definition under clause (b) of Note 6. It is clear from the notes to chapter 39 that conversion from one form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in (1986) 4 Supreme Court Cases 447. In the case of G.M. Kokli and Others (supra), the Supreme Court observed as under :- "11. Section 70, so far as is relevant, says "the provisions of the Factories Act shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory". It is well-known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, "notwithstanding anything contained in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in South India Corp. (P) Ltd. v. Secretary, Board of Revenue, Trivandrum. 68. It is well settled that the expression 'notwithstanding' is in contradistinction to the phrase 'subject to', to the latter conveying the idea of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e be answered in favour of the assessees by holding that the amendment of Note 6 with effect from 1-3-1988 was not clarificatory in nature but is a new provision and shall have effect only prospectively. He also submitted that, in this view of the matter, the appeals are required to be decided in favour of the assessees. 9. The learned CDR reiterated the submissions in the Revenue's appeal and submitted that in view of the provisions of Note 6, the processes carried out by the assessees should be treated as amounting to 'manufacture'. He also submitted that amendment to Note 6 should be treated as clarificatory in nature and of retrospective application as its purpose was only to clear the ambiguity between the scope of Note 3 and Note 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Note 6 override the contrary provisions of Note 3 only because of the non obstante clause with which Note 6 opens. A new provision can have retrospective effect only if it is so specifically stated or by necessary implication. That is not the case with the amendment to Note 6. 11. In the light of the above discussions, we hold that the amendment of Chapter Note 6 to Chapter 39 with effect from 1-3-1988 was not clarificatory. Therefore, its operation is only prospective. The reference is thus answered in favour of the assessees. Consequently, appeal No. E/4095/90-C of M/s. Das Co. is allowed and appeal No. E/3363/91-C of Collector of Central Excise, Bombay-I is rejected. Appeals and reference are ordered accordingly. - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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