(1)
DHROPADABAI AND OTHERS Vs.
TECHNOCRAFT TOOLINGS .....Respondent D.D
19/03/2015
Facts:The legal heirs of Ambadas Lahane filed an application for compensation under the Workmen's Compensation Act, 1923, after Lahane, an employee, died due to a chest pain at his workplace.The employer, Technocraft Toolings, contested the claim, arguing that Lahane was covered under the Employees' State Insurance Act, 1948 (ESI Act), and therefore, the legal heirs were not entitled to ...
(2)
HMT WATCHES LTD. Vs.
M.A. ABIDA AND OTHERS .....Respondent D.D
19/03/2015
Facts:HMT Watches Ltd. filed criminal complaints against M.A. Abida for dishonoring 57 cheques issued to discharge outstanding liabilities.The Respondent claimed the cheques were given as security and challenged the proceedings in the High Court.The High Court quashed the cases based on the Respondent's factual defenses.Issues:Whether the High Court's quashing of the cases based on dispu...
(3)
VIPULBHAI M. CHAUDHARY Vs.
GUJARAT COOPERATIVE MILK MARKETING FEDERATION LTD. AND OTHERS .....Respondent D.D
19/03/2015
Facts: The case involves the removal of a chairperson or elected office bearer from a cooperative society through a motion of no-confidence. The relevant statutes and bylaws did not contain specific provisions regarding such removal.Issues:Whether an office bearer can be removed through a motion of no-confidence in the absence of specific provisions in the statutes or bylaws.What procedure should ...
(4)
AIDEK TOURISM SERVICES PVT. LTD. Vs.
COMMISSIONER OF CUSTOMS .....Respondent
Sections, Acts, Rules, and Article mentioned:
Rule 192, Rule 8, Rule 8(1): Central Excise Rules, 1944
Section 2, Section 3, Section 3(1): Central Excise Tariff Act, 1985
Section 11B, Section 5A(1): Central Excises and Salt Act, 1944
Section 12: Customs Act, 1962
Section 3(1): Customs Tariff Act, 1975
Subject:
Eligibility of Concessional Rate of CVD under Notification No. 64/93-CE
Headnotes:
Facts:
The case involves Aidek Tourism Services Pvt. Ltd., an importer, seeking a refund of 10% of the total Counter Vailing Duty (CVD) paid on imported Honda Accord cars, claiming eligibility for a concessional rate of CVD under Notification No. 64/93-CE. The dispute arose regarding whether the importer could be considered the "manufacturer" for the purpose of availing the additional exemption of 10% CVD as per the notification.
Issues:
The central issue is whether the importer can be deemed the "manufacturer" for the purpose of availing the concessional rate of additional duty under Notification No. 64/93-CE.
Held:
The Supreme Court held that the importer could indeed be treated as the "manufacturer" for the purpose of availing concessions under Notification No. 64/93-CE. This decision was based on the interpretation of relevant provisions of the Central Excise Rules, the Central Excise Tariff Act, and the Customs Act, along with previous judgments, particularly Thermax Private Limited vs. Collector of Customs (Bombay). The Court observed that the objective of the notification was to extend benefits to importers of saloon cars for use as tourist taxis, and therefore, the importer should be deemed eligible for the concession.
Consequently, the appeal preferred by the Assessee was allowed, and the order of the Delhi Bench of CEGAT was reversed, upholding the view of the Mumbai Bench. The Assessee was entitled to a refund of 10% CVD paid.
Referred Cases:
Collector of Central Excise, Jaipur Vs. J.K. Synthetics, , (2000) 120 ELT 54 : (2000) 10 SCC 393
Lohia Sheet Products Vs. Commissioner of Customs, New Delhi, , (2008) 126 ECC 173 : (2008) 152 ECR 173 : (2008) 224 ELT 349 : (2008) 4 JT 443 : (2008) 4 SCALE 354 : (2008) 11 SCC 510
Commissioner of Central Excise, New Delhi Vs. Hari Chand Shri Gopal and Others, etc. etc., , (2010) 182 ECR 143 : (2010) 260 ELT 3 : (2010) 12 JT 563 : (2010) 12 SCALE 122 : (2011) 1 SCC 236 : (2011) AIRSCW 1119 : (2010) 8 Supreme 225
M/s. Motiram Tolaram and Another Vs. The Union of India and Another, , AIR 1999 SC 3121 : (1999) 66 ECC 61 : (1999) ECR 48 : (1999) 112 ELT 749 : (1999) 6 JT 48 : (1999) 4 SCALE 666 : (1999) 6 SCC 375 : (1999) 1 SCR 82 Supp : (1999) AIRSCW 3070 : (1999) 7 Supreme 235
CC (Preventive) Amritsar Vs. Malwa Industries Ltd., , (2009) 162 ECR 169 : (2009) 235 ELT 214 : (2009) 2 JT 690 : (2009) 2 SCALE 466 : (2009) 12 SCC 735 : (2009) 2 SCR 120 : (2009) 2 UJ 716 : (2010) AIRSCW 225 : (2009) 7 Supreme 193
Thermax Private Limited Vs. The Collector of Customs (Bombay), New Customs House, , AIR 1993 SC 1339 : (1993) 42 ECC 1 : (1992) 42 ECR 422 : (1992) 61 ELT 352 : (1992) 5 JT 281 : (1992) 2 SCALE 212 : (1992) 4 SCC 440 : (1992) 3 SCR 943
The Commissioner of Central Excise, New Delhi Vs. Hari Chand Shri Gopal etc., , AIR 2005 SC 3595 : (2005) 102 ECC 481 : (2005) 188 ELT 353 : (2005) 12 JT 189 : (2005) 8 SCALE 58 : (2005) 8 SCC 164 : (2005) 3 SCR 931 Supp
JUDGMENT
Arjan Kumar Sikri, J.—In all these appeals the question of law which arises for determination is identical and even the Assessee is the same. However, it so happened that the same issue was considered by the Delhi Bench as well as West Regional Bench at Mumbai of the Customs, Excise and Gold (Control) Appellate Tribunal (for short, 'CEGAT') and they have given conflicting opinions. Insofar as Mumbai Bench of CEGAT is concerned, it has decided the issue in favour of the Assessee. However, the Delhi Bench, while taking a contrary view, which is in favour of the Revenue, has not agreed with the Mumbai Bench of CEGAT for the reasons mentioned therein, which shall be noted at the appropriate stage.
2. The issue relates to the eligibility for concessional rate of additional duty [also known as Counter Vailing Duty (CVD)] in terms of Notification No. 64/93-CE. The Assessee is in the business of tourism, which operates taxis to ferry the tourists from one place to another. Way back in the year 1995, it had imported Honda Accord cars and filed refund claim on the ground that it was eligible for concessional rate of CVD in terms of the aforesaid Notification. In this refund claim the Assessee sought refund of 10% of total CVD. The refund claim of the Assessee was rejected. Questioning the veracity of this decision of the Assistant Commissioner of Customs, Refund Department, Mumbai, as well as Delhi, the Assessee approached the Commissioner (Appeals) at both the places. The Commissioner (Appeals) in Mumbai allowed the appeal of the Assessee and granted the benefit of the aforesaid Notification with a direction to the lower authority to sanction the refund to the Assessee as claimed. Against this order, the Revenue preferred appeal before CEGAT. CEGAT, vide orders dated November 13, 2000 rejected the appeal of the Revenue. Against these orders, Revenue is in appeal.
3. On the other hand, in the proceedings emanating from the rejection of the refund by the Assistant Commissioner of Customs (Refund), New Delhi, the appeal of the Assessee was dismissed by the Commissioner of Customs (Appeals), New Delhi. This order of the Commissioner was challenged by the Assessee before CEGAT. The Delhi Bench of CEGAT, however, dismissed the appeal of the Assessee vide orders dated January 08, 2001. Against these orders it is the Assessee which has filed the appeals.
4. These are the reasons to hear all the appeals analogously as the question of law raised by the Revenue as well as the Assessee is common.
5. Before we advert to the view taken by the two respective Benches of CEGAT, it would be apposite to take stock of few facts which led to the controversy in issue, along with terms of Notification No. 64/93-CE dated February 28, 1993.
6. The admitted facts are that the Honda Accord cars imported by the Assessee were manufactured abroad. On the import of such cars, normally, CVD is payable @ 40%. This duty was paid by the Assessee at the time of clearance of the imported goods and refund of 10% was claimed seeking the benefit of Notification No. 64/93-CE. This Notification dated February 28, 1993 is reproduced below for the better appreciation of the dispute:
No. 64/93-C.E., dated 28.2.1993 as amended by No. 11/94-C.E. dated 1.3.1994: In exercise of the powers conferred by Sub-section (1) of Section 5A of the Central Excise and Salt Act, 1944 (1 of 1944), the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts all goods falling under heading No. 87.03 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) from so much of the duty of excise leviable thereon which is specified in the said Schedule as is in excess of the amount calculated at the rate of 40 per cent ad-valorem.
Provided that in a case where a saloon car after clearance has been registered for use solely as a taxi, the manufacturer of the said saloon car shall be entitled to a further exemption of duty of 10 percentage points subject to the following conditions, namely:
(i) the manufacture at the time of clearance of such saloon car has paid excise duty calculated at the rate of 40% ad valorem;
(ii) the manufacturer furnishes to the Assistant Collector of Central Excise a certificate from an officer authorised by the concerned State Transport Authority in this behalf to the effect that such saloon car has been for use solely as a taxi, within three months of the date of clearance of the said saloon car from the factory of manufacture or such extended period as the said Assistant Collector may allow;
(iii) the manufacturer had not collected from the person in whose name such saloon car has been registered as a taxi, or in a case had collected and has refunded to such person, the amount equivalent of such further exemption of duty, and
(iv) the manufacturer files a claim for refund of duty in terms of Section 11-B of Central Excise and Salt Act, 1944(1 of 1944).
7. What follows from the bare reading of the aforesaid Notification is that exemption from customs duty is provided in respect of goods falling under Heading 87.03 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Tariff Act'), which is in excess of the amount calculated @ 40% ad valorem. Under Heading 87.03, various kinds of goods are mentioned. However, proviso to this Notification gives exemption of duty of 10% CVD in respect of particular goods, namely, saloon cars, if such saloon cars are used solely as taxis. It is subject to four conditions mentioned in the proviso.
8. Pertinently, this proviso mentions that the entitlement of further exemption of duty of 10% is admissible to 'the manufacturer of the said saloon car'. It is this expression used in the said proviso which is the bone of contention. According to the Revenue, only the manufacturer of the saloon car, which is imported and used solely as a taxi, is entitled to additional exemption of duty of 10% CVD, as the plain read of the provision manifestly suggests. The submission of the Assessee, on the other hand, is that for the purpose of this proviso, the importer, like the Assessee, is to be deemed as the manufacturer of the said saloon car. This is the short issue that needs determination.
9. Before adverting to the respective arguments of the learned Counsel for the Revenue as well as the Assessee, we deem it proper to state the reasons given by the two Benches of CEGAT, rendering opposite decisions. In fact, as we take notice of these orders, it would become apparent as to how the two Benches have perceived the language of the same Notification, in the light of the same judgments, differently, and that will obviate the necessity of taking note of the arguments of the counsel for the parties, and those are the respective arguments of the counsel for the parties.
10. The argument of the Assessee before the Mumbai Bench (or for that matter even before the Delhi Bench) was that the entire case had to be viewed from the philosophy behind the provisions of Section 3 of the Tariff Act, which was taken note of by the Apex Court in the case of Hyderabad Industries Ltd. and Anr. v. Union of India and Ors. (1699) 5 SCC 15 and Collector of Central Excise, Jaipur Vs. J.K. Synthetics, , treating the importer as the manufacturer of such goods for the purpose of giving benefit of such Notification. Reliance was also placed on the judgment of this case in Thermax Private Limited Vs. The Collector of Customs (Bombay), New Customs House, . The Mumbai Bench of CEGAT relied upon and extracted from the judgment of this Court in Thermax Private Limited (supra) and accepted the plea of the Assessee thereby giving benefit of the Notification to the Assessee. The Delhi Bench, on the other hand, though took note of judgments in Thermax Private Limited (supra) and Hyderabad Industries Ltd. (supra), was of the opinion that those judgments did not apply to the facts of this present case. According to the Delhi Bench, the importer was to be treated as manufacturer only to the extent of granting the benefit of levying CVD @ 40% in terms of the Notification and the ratio of the said judgments could not be stretched to hold that the importer is to be treated as a manufacturer for the purpose of Notification No. 64/93-CE, which extends further concession of 10% only to the manufacturers.
11. From the aforesaid, it is clear that the entire case hinges upon the ratio laid down in Thermax Private Limited (supra) and followed in Hyderabad Industries Ltd. (supra) as well as in J.K. Synthetics (supra).
12. In Thermax Private Limited (supra), the facts were that the Assessee had imported goods described as "Sanyo Single Effect Chiller" from Japan for the purpose of using the same for refrigeration/air conditioning of two factories. The Assessee cleared the goods by paying customs duty as well as additional duty leviable Under Section 3(1) of the Tariff Act. The customs duty had been paid on the imported goods under customs tariff Item No. 84.17(1) at 40 per cent of the value of the imported goods plus a surcharge of 25 per cent thereon. The rate of additional duty had to be determined on the basis of Item 29-A(3) of the Central Excise Tariff and the basic excise duty payable thereon was at 80 per cent of the value of the goods under the above item read with Notification No. 42 of 1984/C.E. dated March 1, 1984. However, Notifications (No. 93 of 1976/CE and 63 of 1985/CE) provided a further concession of 25 per cent ad valorem provided conditions set out therein was fulfilled. There was no dispute that the Assessee was fulfilling other conditions contained in column (5) of the said Notification, one of which was that the Chiller imported by the Assessee was used in a factory-vide item (xiii). The Revenue, however, took the view that the second condition to claim a concession in CVD was not fulfilled, namely, the procedure specified in Chapter X of the Central Excise Rules, 1944 (for short, the 'Rules') was not followed. Chapter X of the Rules deals with remission of excise duty on goods used for special industrial purposes. Rule 192 in the said Chapter provides that benefit under this Chapter would be claimed by a manufacturer. The primary reason for rejection of concessional duty, therefore, was that the Assessee in the said case as importer of goods was not a manufacturer. In this context, the issue arose as to whether Assessee could be treated as a manufacturer for the purpose of availing the concession under the Rules. The Court answered the aforesaid question in the affirmative deeming the importer as the manufacturer to make him entitled to get the benefit of the said Notification.
13. The discussion in the judgment started with reference to Section 3(1) of the Tariff Act. As this provision applies in the present case as well, we take note of the same, which reads as under:
3. Levy of additional duty equal to excise duty.-(1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article.
Explanation.-In this section, the expression 'the excise duty for the time being leviable on a like article if produced or manufactured in India' means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India, or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs and where such duty is leviable at different rates, the highest duty.
14. This Section deals with levy of additional duty, i.e. CVD, which is normally equal to the excise duty that is payable on a like article if produced or manufactured in India. However, it is a matter of common knowledge that Notifications of exemptions have been issued by the Excise Department from time to time Under Rule 8(1) of the Rules, in the case of imported goods, for determining the leviability of additional duty Under Section 3(1) of the Act. In that case, Notification No. 93/1976 was issued Under Rule 8 of the aforesaid Rules, which provides for a concession of 25% ad valorem, as already noted above. As per this Notification, one of the conditions to be fulfilled was that of procedure specified in Chapter X of the Rules. This Chapter provides for-'remission of (central excise) duty on goods used for special industrial purposes'. Rule 192, which appeared in this D.D
19/03/2015
Facts: The case involves Aidek Tourism Services Pvt. Ltd., an importer, seeking a refund of 10% of the total Counter Vailing Duty (CVD) paid on imported Honda Accord cars, claiming eligibility for a concessional rate of CVD under Notification No. 64/93-CE. The dispute arose regarding whether the importer could be considered the "manufacturer" for the purpose of availing the additional ex...
(5)
MRS. PRIYANKA SRIVASTAVA Vs.
STATE OF UTTAR PRADESH .....Respondent D.D
19/03/2015
Facts: The borrower, who defaulted on a loan, filed criminal cases against bank officials. A one-time settlement was reached between the borrower and bank officials, including withdrawal of various cases. Despite this settlement, the borrower filed another application under Section 156(3) of the Cr.P.C, alleging cheating against the bank officials. The FIR was registered based on this application....
(6)
M.P. AGENCIES Vs.
STATE OF KERALA .....Respondent D.D
18/03/2015
Facts:The appellant, M.P. Agencies, is a distributor of "Ujala Supreme" and "Ujala Stiff and Shine," fabric whitener and liquid fabric stiffener respectively.These products are manufactured by an industrial unit, which purchases acid violet paste (AVP) and dilutes it in water, selling it under the brand name "Ujala."The issue revolves around the classification and tax...
(7)
SATNAM OVERSEAS LTD. Vs.
COMMISSIONER OF CENTRAL EXCISE .....Respondent D.D
18/03/2015
Facts:Satnam Overseas Ltd. (the Appellant) contested the classification and taxation of their product 'Rice and Spice' by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT).The product, a mixture of raw rice, dehydrated vegetables, and spices, underwent a process involving blending, heating, and packaging.The Additional Commissioner proposed to classify the product under H...
(8)
TAMILNADU TERMINATED FULL TIME TEMPORARY LIC EMPLOYEES ASSOCIATION Vs.
LIFE INSURANCE CORPORATION OF INDIA AND OTHERS ....Respondent D.D
18/03/2015
Facts: The case revolves around an industrial dispute between the Tamil Nadu Terminated Full Time Temporary UC Employees Association and the Life Insurance Corporation of India (LIC). The dispute arose over the absorption of certain temporary employees who had served the LIC between January 1, 1982, and May 20, 1985. The employees sought absorption as regular and permanent service employees. (Para...
(9)
DAULAT RAM Vs.
STATE OF HARYANA .....Respondent D.D
17/03/2015
Facts:Zile Singh was reported missing, and his father lodged a First Information Report (FIR) stating that the deceased was last seen with the appellant and other co-accused.Subsequently, Zile Singh's body was found in a well, and the appellant, along with others, was charged with murder and disposal of evidence.The trial court convicted the appellant, and the High Court upheld the conviction...