LexCOMMISSIONER OF CENTRAL EXCISE AND CUSTOMS versus M/S. VENUS CASTINGS (P) LTD. ETC. ETC.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS
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MIS. VENUS CASTINGS (P) LTD. ETC. ETC.
APRIL 5, 2000
[S. RAJENDRA BABU AND S.N. PHUKAN, JJ.]
Central Excise Act 1944-Section 3A( 4 ), Central Excise Rules-Rules
96W( 3) and 96ZP-Manufacturers having opted to pay excise duty under the
provisions of Rule 96W(3) of the Central Excise Rules claimed benefit of
abatement accruing under Section 3A(4) of the Act-Held: There are two
alternative procedures for payment of duty which do not clash with each
other-Under Section 3(4) of the Act, the annual production capacity is
determined by the Commissioner of Central Excise in terms of the Rules and
duty fvced accordingly-Under Rule 96ZO manufacturers are classified on the
basis of furnace capacity and duty is relatable to this-Having opted for
procedure under Rule 96W( 1), a manufacturer may opt out of procedure
under Rule 96ZO( 3) for a subsequent period and ask for assessment based on
annual production-Those who ha~e opted for payment under Rule 96W( 3)
cannot claim benefit of abatement since the said Rule Specifically excludes
application of Section 3A(4)-When an assessee opts for payment under Rule
96W(3), no annual assessment is done and so duty cannot be determined on
that basis, he cannot then claim to pay on actual production basis under
Section 3A( 4) of the Act, seeking to adopt both of the alternative provisions--
Rule 96W( 3) is not Ultra Vires.
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Constitution of India-Article 136-Court will entertain SLP when there
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is difference of opinion between High Courts/between two Benches of the same
High Court, or when there is uncertainty in the law.
The respondent assessees had opted for payment of excise duty un·
der Rule 96Z0(3) of the Central Excise Rules but claimed benefit of
abatement available under Section 3A(4) of the Central Excise Act. When
this was refused by the Revenue some of the respondents tiled Writ peti-
tions. This appeal is by the Revenue because both the Tribunal and the
High Court had allowed contention of the respondents.
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Allowing the appeals, this Court
988
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C.C.E. v. VENUS CASTING (P) LTD.
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HELD : 1. The schemes contained in Section 3A(4) of the Central
Excise Act and Rule 96Z0(3) or Rule 96ZP(3) of the Excise Rules are two
alternative procedures to be adopted at the option or the assessee. Thus
the two procedures do not clash with each other. H the assessee opts for
procedure under Rule 96ZO(l) he may opt or the procedure under Rule
96Z0(3) for a subsequent period and seek determination of annual capac-
ity production. An assessee cannot have a hybrid procedure of combining
the procedure under Rule 96ZO(l) to which Section 3A(4) of the Act is
attracted. The claim by the respondents is a hybrid procedure of taking
advantage of the payment of lumpsum on the basis of total furnace capac-
ity and not on-the basis of actual capacity of production. Such a procedure
cannot be adopted at all, for the two procedures are alternate schemes of
payment of tax. Therefore, it is made clear that the manufacturers, if they
have availed of the procedure under Rule 96Z0(3) at their option, cannot
claim the benefit of determination of production capacity under Section
3A(4) of the Act which is specifically excluded. [994-E-G; 995-EJ
Sathavahana Stee{s & Alloys (P) Ltd. v. Government of India, (1999)
114 ELT 787; Mis. Jalan Castings (P) Ltd. v. Commissioner of Central
Excise & Ors., WritPetitionNo.1127of1999,disposedofonFebruary 28,
2000 by Allahabad High Court, approved.
Pravesh Castings (P) Ltd., Kanpur Nagar v. Commissioner of Central
Excise, Allahabad & Am:, (2000) 36 RLT 239, Overruled.
State of Kerala'& Am: v. Builders Association of India & Ors., [1997]
2 sec 183, referred to.
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2. It cannot be said that collection of tax based oil annual furnace
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capacity is not relatable to the production of goods and does not carry the
purpose of the Act. In holding whether a relevant rule to be Ultra Vires it
becomes necessary to take into consideration the purpose of the enactment
as a whole, starting from the preamble to the last provision thereto. H the
entire enactment is read as a whole indicates the purpose and that purpose
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is carried out by the rules, the same cannot be stated to be Ultra Vires of
the provisions of the enactment. [995-D-EJ
3. When different Benches of the same High Court have taken dif-
ferent views and another High Court has taken a view contraryExcerpt shown. Read the full judgment & AI analysis in Lexace.