ANDHRA SUGARS LTD Vs. COLLECTOR OF CENTRAL EXCISE
LAWS(CE)-1986-4-3
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on April 28,1986

Appellant
VERSUS
Respondents

JUDGEMENT

S. Kalyanam, Member (J) - (1.)THIS appeal is directed against the order of Collector of Central Excise (Appeals), Madras dated 5.9.1984 confirming the order of the Assistant Collector of Central Excise, Eluru dated 31.1.84 demanding a duty of Rs. 89,535.40 from the appellant under Sub-Sec. 2(d) of Section 47 of the Finance Act, 1982 in respect of clearances of caustic soda, caustic potash, acids and fertilisers during the period 1976-77 to 1978-79. The appellants herein are manufacturers of caustic potash falling under Tariff Item 14B, sulphuric acid falling under T.I. 14G and fertilisers under T.I. 14H. The appellant availed themselves of Exemption under Notification No. 198/76 CE (excess production incentive) in respect of caustic soda during the years 76-77 to 78-79, in respect of caustic potash for the year 1978-79, in respect of acids for the years 76-77 to 78-79 and in respect of fertilisers during the year 1978-79. While the appellant paid the effective duty leviable by virtue of Notification No. 198/76-CE, referred to supra, they sold the goods at a price by including the full duty, which would have been payable by them but for the exemption notification. Section 47 of the Finance Act, 1982, amended Section 4 of the Central Excises & Salt Act, 1944, by incorporating an explanation clause giving the same retrospective effect from 1.10.1975. In pursuance of the provisions of the Finance Act, 1982, the Department alleged that the appellants paid duty less to the tune of Rs. 89,535.40 in respect of clearances effected by them under Notification No. 198/76-CE and the proceedings instituted against the appellant, eventually resulted in the present impugned order now appealed against.
(2.)The learned consultant for the appellant submitted that Section 47(2)(d) of the Finance Act, 1982 cannot be made applicable to recover the differential duty of Rs. 89,535.40 arrived at on the basis of assessable value. It was urged that inasmuch as no show cause notice was issued against the appellant in respect of the sum demanded under the impugned order prior to 27/2/82 within the period of limitation in terms of Section 11(K) of the Act, the duty demanded is clearly barred by limitation under Section 11(A) of the Central Excises & Salt Act, 1944. The learned consultant further submitted that Section 47 of the Finance Act, 1982 does not over-ride or supercede Section 11(A) of the Central Excises & Salt Act, 1944. It was further urged that under Section 47(2) of the Finance Act, 1982, only action on thing taken or done or purporting to have been taken or done at any time during the period 1.10.75 to 27.2.82 shall be deemed to have always been validly and effectively taken or done as if the amendment made by Sub-section (1) has been in force at all material times and in the instant case, inasmuch as no action or thing has been taken or done or purported to have been taken or done at any time between 1.10.75 to 27.2.82, differential duty cannot be demanded in terms of Section 47(2)(d) of the Finance Act, 1982. The learned consultant for the appellant also placed reliance on the various rulings of the High Court as well as Special Bench of the Customs, Excise & Gold (Control) Appellate Tribunal which we/shall advert to at the relevant place.
The learned SDR contended that by issue of amendment to Section 4 of the Central Excises & Salt Act, 1944 with retrospective effect, the assessments made by the authorities on the R.T. 12 shall be deemed to have been validly made as if the amendment made by Sub-section (1) of Section 47 of the Finance Act, 1982 had been in force at all material times and recovery of the same would follow as a consequence in terms of Section 47(2) of the Finance Act, 1982. It was further urged that inasmuch as the assessable value is to be determined with reference to actual effective rate of duty paid and not the tariff rate or the rate of duty leviable under the act on goods under assessment, the determination of duty under the impugned order is correct in law. Finally, it was urged that the period of limitation under Section 11(A) of the Act would not be relevant in construing the scope of Section 47(2) of the Finance Act, 1982.

(3.)WE have carefully considered the submissions of the parties herein. In order to better appreciate the submissions of the parties herein, we would like to extract Section 47(2) of the Finance Act, 1982.
47(2) ... Any action or thing taken or done or purporting to have been taken or done at any time during the period commencing on the 1st day of October 1975 and ending with the 27th day of February 1982 (hereafter in this sub-section referred to as the paid period) under the Central Excises Act, shall be deemed to be and to have always been, for all purposes, as validly and effectively taken or done as if the amendment made by Sub-section (1) had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority:-

a) all duties of excise levied, assessed or collected during the said period on any excisable goods under the Central Excises Act, shall be deemed to be and shall be deemed always to have been, as validly levied, assessed or collected as if the amendment made by Sub-section (1) had been in force at all material times;

b) no suit or other proceedings shall be maintained or continued in any court for the refund of, and no enforcement shall be made by any court of any decree or order directing the refund of, any such duties of excise which have been collected and which would have been validly collected if the amendment made by Sub-section (1) had been in force at all material times;

c) refund shall be made of all such duties of excise which have been collected but which would not have been so collected if the amendment made by Sub-section (1) had been in force at all material times;

d) recovery shall be made of all such duties of excise which have not been collected or, as the case may be, which have been refunded but which would have been collected, or, as the case may be, would not have been refunded, if the amendment made by Sub-section (1) had been in force at all times.

Explanation :- For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force.



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