Writ Petition Nos. 6048 to 6050 of 1984. Case: Asia Tobacco Company Ltd. Vs Union of India & Others. High Court of Madras (India)
| Case Number | Writ Petition Nos. 6048 to 6050 of 1984 |
| Judges | Shri Nainar Sundaram, J. |
| Issue | Central Excise Rules, 1944 - Rule 8(1) |
| Citation | 1984 (18) ELT 152 (Mad) |
| Judgement Date | August 10, 1984 |
| Court | High Court of Madras (India) |
Judgment:
-
The petitioner in these three writ petitions is one and the same. It is a Company incorporated under the Companies Act, 1956. The petitioner manufactures cigarettes in its factory at Hosur, Dharmapuri District. The petitioner claims that it manufactures cigarettes for itself and for M/s. I.T.C. Limited. Cigarettes are subject to levy of excise duty under Tariff Item 4(11) (2) of the Central Excise Tariff, under manufactured tobacco. There was a partial exemption Notification 30/79 of Central Excise, dated 1-3-1979, hereinafter referred to as the Exemption Notification and the said notification, with its amendments by Notification Nos. 140/79-C.E. dated 30-3-1979 and 25/81-C.E., dated 1-3-1981, issued under sub-rule (1) of rule 8 of the Central Excise Rules, 1944, hereinafter referred to as the Rules, reads as follows:
Partial Exemption to Cigarettes:
In exercise of the powers conferred by sub-ruled(1) of rule 8 of the Central Excise Rules, 1944, read with sub-Section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) (hereinafter referred to as the Additional Duties of Excise Act) the Central Government hereby exempts cigarettes of the description specified in column (1) of the Table hereto.annexed and falling under sub-item 11(2) of Item No. 4 of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) (hereinafter referred to as the Central Excise Act) from so much of the duty of excise leviable thereon both under the Central Excise Act and the Additional Duties of Excise Act, as is in excess of the duty specified in the corresponding entry in column (2) thereof.
TABLE
Description
Rate of duty
(1)
(2)
Cigarettes of which the value per one thousand
(i) does not exceed rupees ten
One thousand and fifty per cent ad valorem plus twenty-one rupees and fifty paise per one thousand.
(ii) exceeds rupees ten but does not exceed rupees thirty-five
One hundred and fifty per cent ad valorem plus ten per cent ad valorem for every additional rupee or part thereof in excess of a value of rupees ten per one thousand, plus twenty-one rupees and twenty-five paise per one thousand.
(iii) exceeds rupees thirty-five
Four hundred per cent ad valorem plus twenty one rupees and twenty-five paise per one thousand:
Provided that the amount of duly so levied shall be apportioned in the ratio of 72.5: 27.5 between the duty leviable under the Central Excise Act and the Additional Duties of Excise Act respectively.
(Notification No. 30/79-C.E., dated 1-3-1979 as amended by Notification No. 140/79-C.E., dated 30-3-1979 and No. 25/81-C.E., dated 1-3-1981).
The petitioner claims, and there is no denial of the same by the respondents, that it was clearing cigarettes manufactured for itself and for M/s. I.T.C. Limited at the rates specified in the Exemption Notification, depending on the assessable value. The Central Government, by Notification 284/82-C.E., dated 10-11-1982, hereinafter referred to as the withdrawal Notification, rescinded the Exemption Notification pursuant to the powers under sub-rule (1) of rule 8 of the Rules. The Withdrawal Notification reads as follows:
MINISTRY OF FINANCE
(Department of Revenue)
New Delhi, the 30th November, 1982
NOTIFICATION
No. 284/82-Central Excises.
"G.S.R. 728(E). - In exercise of the powers conferred by sub-Rule (1) of rule 8 of the Central Excise Rules, 1944 read with sub-Section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) the Central Government hereby rescinds the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 30/79-Central Excises, dated the 1st March, 1979
(F. No. 349/2/82-TRU)
J.K. BATRA, Under Secy.
On 6-12-1982, the third respondent addressed a letter to the petitioner as follows:
OFFICE OF THE SUPERINTENDENT OF CENTRAL EXCISE HOSUR III RANGE, HOSUR
O.C. No. 1554/82 Dated 6-12-1982
To
M/s. Asia Tobacco Company Limited,
Sipcot Industrial Complex,
Hosur.
Gentlemen,
Subject: Central Excise Cigarettes-.Issue of Notification No. 284/82-Central Excise, dated 30-11-1982-Differential Duty of the cigarettes cleared with effect from 30-11-1982-Demands issued-Regarding:
You are hereby informed that Notification No. 30/79, dated 1-3-1979 prescribing concessional rate of duty for Cigarettes has been rescinded by Notification No. 284/82-Central Excise, dated 30-11-1982 consequently the clearances of cigarettes effected from 30-11-1982 based on the assessable value claimed in your price list dated 12-11-1982 on provisional basis would have been cleared on tariff rates of duty applicable on cigarettes on provisional basis pending issue of orders by the Assistant Collector on the above price list filed by you. So far with effect from 30-11-1982 to 5-12-1982 you have cleared 62064 thousand of Scissor brand cigarettes. So you are hereby requested to pay the differential duty as furnished below for the above quantity of cigarettes cleared by you on the above period.
B.E.D.
A.E.D.
S.E.D.
Total
Rs. 5,81,850/-
Rs. 3,64,526/-
Rs. 58,185/-
Rs. 10,04,661/-
You are hereby requested to pay the above differential duty immediately and produce the paid challan.
Yours faithfully,
Sd.
Superintendent of Central Excise Hosur III Range, Hosur.
The petitioner, by its reply dated 10-12-1982, the contents of which run as follows, expressed surprise with regard to the withdrawal Notification and pleaded that the withdrawal Notification has not been brought to its notice and it has not been handed over a copy of the same and, however, it is paying the demanded amount without prejudice to its rights and contentions in the matterÿ:
ASIA TOBACCO COMPANY LIMITED
EX/280/427
10th December, 1982.
The Superintedent of Central Excise,
Hosur Range III, Hosur.
Dear Sir,
We are in receipt of your demand notice O.C. No. 1554/82 dated 6-12-1982, on 7-12-1982. We are surprised to note that the Notification No. 284/82 Central Excise, dated 30-11-1982 have been brought to our notice on 7-12-1982 demanding with retrospective effect the differential duty on clearance from 30-11-1982. In fact we have not been handed over a copy of the Notification 284/82-Central Excise, dated 30-11-1982 to enable us to pay the duty as demanded by you
However, we are paying Rs. 10,04,661/- without prejudice to our rights and contentions in this matter. The paid challan is enclosed for your information.
Yours faithfully,
or ASIA TOBACCO COMPANY LIMITED
Sd.
Factory Manager.
On 23-4-1983, M/s. I.T.C. Limited, for whom the petitioner manufactures cigarettes, addressed a letter to the Controller of Publications, Publication Department of Government of India, Delhi-100054, requesting information and the actual date when the Gazette containing the Withdrawal Notification was made available to the public. That letter reads as follows:
LEG/381 23rd April, 1983
Controller of Publications,
Publication Department of
Government of India,
Old Secretariat,
Civil Lines,
Delhi-100 054.
Dear Sir,
Gazette of India
As far as we are aware the Gazette copy of the Notification No. 284/82-Central Excise, dated 30th November, 1982 rescinding the Notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 30/79-Central Excise, dated 1st March, 1979 was not made available to the public until some time in the first week of December, 1982.
We shall be most grateful if you would kindly let us know the exact date on which the Gazette of India containing the above notification was actually printed and the date on which the same was made available to the public. Please treat the matter as most urgent.
Yours faithfully,
I.T.C. Limited.
Sd.
Accountant (ITD).
On 23-4-1983, a reply was received from the Assistant Controller (Periodicals) for Controller of Publications, and the said reply runs as follows:
GOVERNMENT OF INDIA
Department of Publication.
Civil Lines, Delhi-110054
No. Gaz/81 179/83 23-4-1983
To
Accountant
I.T.C. Limited
Virginia House
37, Chowringhee,
Calcutta.
Dear Sir,
With reference to your letter No. LEG/381, dated 23-4-1983 regarding the date of availability for the public of the Gazette of India Exty. Pt. II Section III sub-Section 1, dated 30-11-1983 No. G.S.R. Notification 284/82-Central Excise. In this connection I write to inform you that the said Gazette of India was placed on sale for public on 8-12-1982.
Yours faithfully,
Sd.
Assistant Controller (Periodicals)
for Controller of Publications.
On 9-5-1983, the petitioner wrote to the second respondent pointing out that the Withdrawal Notification was placed on sale for public only on 8-12-1982 and therefore, the effect of the Withdrawal Notification would be only from 8-12-1982 and wanted that while working the differential duty for the period from 30-11-1982 to 7-12-1982, the same should be calculated taking into consideration the date applicable as per the Exemption Notification. The said letter stands extracted as follows:
ASIA TOBACCO CO. LIMITED
EX/280/1323/KSM
May 09, 1983
The Assistant Collector of Central Excise,
Hosur I.D.O., Bagalur Road,
Hosur-635 109.
Dear Sir,
Subject: Notification No. 284/82 issued by Government of India.
The Notification 30/79, dated 1-3-1979 was rescinded by Notification No. 284/82, dated 30-11-1982. We are advised that this notification will come into effect only from the date it is printed in the Official Gazette made available to the public. We are enclosing herewith a true copy of letter received from Assistant Controller (Periodicals) for Controller of Publications. Government of India, Department of Publications, New Delhi, dated 23-4-1983 stating that the above notification was placed on sale for public on 8-12-1982. Therefore, the effect of the notification 284/82 could be made Applicable only from this date. In...
To continue reading
Request your trial
-
W.P. No. 24408 of 2007 and M.P. Nos. 1 and 2 of 2007. Case: Beekey Enterprises Vs Quarantine Officer, Tamil Nadu. High Court of Madras (India)
...be said to have been brought into force. In this context, the judgment of this Court in Asia Tobacco Co. Ltd. v. Union of India [1984 (18) ELT 152 (Mad)] was approved by the Supreme Court in the judgment relating to Collector of Central Excise v. New Tobacco Co. [1998 (97) ELT 388 (SC)] and......
-
W.P. No. 24408 of 2007 and M.P. Nos. 1 and 2 of 2007. Case: Beekey Enterprises Vs Quarantine Officer, Tamil Nadu. High Court of Madras (India)
...be said to have been brought into force. In this context, the judgment of this Court in Asia Tobacco Co. Ltd. v. Union of India [1984 (18) ELT 152 (Mad)] was approved by the Supreme Court in the judgment relating to Collector of Central Excise v. New Tobacco Co. [1998 (97) ELT 388 (SC)] and......