Customs, Excise and Gold Tribunal - Delhi
Bharat Agriculture Implements And ... vs Collector Of Central Excise on 9 January, 1992
Equivalent citations: 1992(42)ECR518(TRI.-DELHI)
ORDER
Harish Chander, Vice President
1. The present miscellaneous application emerges from stay order No. E/307/91-B1 dated 8th October, 1991. Shri V. Sridharan, the learned advocate has appeared on behalf of the applicants. He pleaded that the earlier order passed by the Tribunal is not correct and is not in conformity with the provisions of law. He drew the attention of the Bench to internal page 3 of the stay order where it has been observed that the "Collector has recorded a finding that on the basis of documents recovred from the appellants they have been purchasing ship scraps from a particular company at Bhav Nagar. This company had always been attaching Gate Passes issued by the Ship Breakers to their Invoice. From the Gate Passes it is obvious that the scrap had been removed from the licensed premises of the Ship Breakers direct to the appellants. On these facts, the Collector has recorded his findings that the contention of the appellants that scrap has been purchased from the open market is not factually sustainable." Shri Sridharan, the learned advocate pleaded that on the last date of hearing, the appellants could not file the waiver letter dated 6th April, 1989 which appears on page 14 of the paper book. He also drew the attention of the Bench to the Gujarat High Court's order which appears on pages 12 and 13 of the paper book. The consent order is dated 1st May, 1986. Shri Sridharan also pleaded that the letter dated 6th April, 1989 has to be construed as exemption under Rule 8(2) of the Central Excise Rules, 1944. In support of his argument, he cited the following decisions:
(1) Tata Yodogawa Ltd. and Anr. v. Union of India and Ors.
2. I.E.L. Ltd. v. Collector of Central Excise, Bombay
3. Mayengbam Radhamohan Singh v. The Chief Commissioner (Administrator) Manipur and Ors.
where it was held that "It is also the view of this Court that if power can be traced to a valid power the fact that the power is purported to have been exercised under non-existing power docs not invalidate the exercise of the power.
Shri Sridharan pleaded that the mere absence of the Rule 8(2) in the Government's circular dated 6th April, 1989 cannot lead to the inference that it is not an exemption under Rule 8(2) of the Central Excise Rules, 1944 and this is the only provision which authorises the Government to grant ad hoc exemption. Shri Sridharan also pleaded that the financial position of the applicants is bad. He referred to the balance-sheet of the applicants for the year ending 31st March, 1991 which appears on page 47 of the paper book. He pleaded that this balance-sheet was not available on the last date of hearing and as such, it could not be considered by the Bench. He also pleaded that there are other assessees who are not required to pay this amount on identical facts and it amounts to discrimination. He pleaded for the modification of the order.
2. Shri S.K. Sharma, the learned JDR who has appeared on behalf of the respondent, pleaded that there arc no changed circumstances from the last date of hearing till date. On the last date of hearing all these facts were within the knowledge of the applicants and the Tribunal had decided the matter on the basis of the material available on record and supplied by the applicants. He pleaded that there is no justification for the modification of the order passed by the Tribunal.
3. We have heard both the sides and have gone through the facts and circumstances of the case. The appeal was filed in the Tribunal on 8th March, 1989 and the stay application was presented in the Registry on 31st March, 1989. The matter had been coining up for hearing before the Tribunal from time to time and the hearings had taken place on the following dates:
10.4.1989 17.7.1989 18.8.1989 22.8.1989 14.3.1991 8.10.1991 The applicants had been mentioning from time to time that 11-C notification is to be issued by the Government and the matter was under contemplation and the revenue had also no objection for the grant of interim stay, and interim stay had been repeatedly granted from time to time. As no 11-C notification was issued, and as such the Tribunal had no alternative but to decide the stay application and had decided the same on 8th October, 1991. During the course of arguments, we were told by Shri Sridharan, the learned advocate that the Government is still contemplating to issue notification under Section 11-C. This Tribunal is a creature of the statute and we are bound by the provisions of the statute. It was so observed by the Hon'ble Supreme Court in the case of Miles India Ltd. v. The Assistant Collector of Customs reported in 1985 ECR 289 (SC) : ECR C 750 SC : ECR C Cus 1094 SC. The Central Excise Duty is to be paid in terms of the charging section and if a particular commodity is subject to excise duty and falls under a particular tariff item or tariff heading, duty has to be paid unless an exemption has been granted by the Central Government. The goods in dispute viz., ship breaking scrap is dutiable under old Tariff Item 25(9) and the new Tariff Item 72.125. We have perused the Government of India circular F. No. 139/49/86-CX4 dated 6th April, 1989. The letter dated 6th April, 1989 is reproduced below:
Subject : Consent Terms filed in the High Court of Gujarat regarding Levy of Duty on ship-scrap-implementation thereof.
I am directed to refer to the petitions filed in the High Court of Gujarat by certain ship breakers regarding levy of excise duty on ship scrap, and to say that Consent terms were filed in the said Court, with the approval of the Government, whereupon the Court passed individual orders as under:
Consent Terms signed by the Learned Counsel for the parties arc filed and they are taken on record. There will be an order in terms of the consent terms in this petition. The petition is disposed of accordingly. No order as to costs.
2. The question of giving effect to term (3) of the consent order has been engaging the attention of the Government with a view to devising a suitable mechanism for waiving of the arrears of duty on ship-scrap for the past period. It has been decided to waive the duty on ship-scrap leviable under erstwhile T.I. 25, or chapter 72 or 73 of the Central Excise Tariff Act, 1975, for the period prior to the issue of notification No. 386/86-Central Excise, dated the 20th August, 1986. Accordingly, the show cause notices and the confirmed demand notices may be withdrawn in these cases.
Sd/-
(M.V.B. Rao) Under Secretary.
A simple perusal of the same shows that the Ministry had ordered waiver of the duty on ship scrap leviable under erstwhile item 25 or chapter 72 or 73 of the Central Excise Tariff Act, 1975 for the period prior to the issue of notification No. 386/86-CE dated 20th August, 1986 and it was ordered that the show cause notices and the confirmed demand notices may be withdrawn in those cases. This letter dated 6th April, 1989 cannot be equated with an exemption notification issued under Rule 8 of the Central Excise Rules, 1944. As we have earlier pointed out the matter was coming up repeatedly for hearing from time to time and if at all the appellants had any intention for filing any additional papers, they were well within their rights to file the same. Whatever the appellants had chosen, they had filed the same and while disposing of the stay application, the Bench had taken into consideration all the aspects which were argued at the time of the hearing of the stay application and even this letter referred to by the learned advocate was prior to the date of hearing of the passing of the order. The learned advocate has placed heavy reliance on the following decisions:
(1) Mayengbam Radhamohan Singh v. The Chief Commissioner (Administrator) Manipur and Ors.
2. I.E.L. Ltd. v. Collector of Central Excise, Bombay
3. Tata Yodogawa Ltd. and Anr. v. Union of India and Ors.
We have considered the decisions cited by the learned advocate, these judgements do not help as here the facts and circumstances are different.
4. Now coming to the financial hardship, the stay application was filed by the applicants on 31st March, 1989. With the stay application the applicants had filed the balance-sheet for the year 31st December, 1987 and income-tax assessment and wealth-tax assessment for the year ending 31st March, 1988. The stay application was disposed of by the Tribunal on 8th October, 1991. The Tribunal while disposing of the stay application had duly taken into consideration the balance-sheet and profit and loss account filed by the applicants for the year ending 31st March, 1990 and the Bench had passed the order after taking into consideration the financial position of the applicants. The facts and circumstances of the case do not justify any modification in the earlier order No. E/307/91-B1 dated 8th October, 1991 passed by the Tribunal. The miscellaneous application is rejected.
5. In the stay order it was ordered that the applicants shall deposit the amount within three months from 8th October, 1991. Three months had expired on 8lh January, 1992. In the interest of justice, we grant further time to the applicants. We order that the applicants shall comply with the terms of the stay order No. El307191-Bl dated 8th October, 1991 on or before 28th February, 1992. The matter to be listed for mention on 10th March, 1992. The applicants shall report compliance of this order to the Registry on or before 7th March, 1992. It is made clear that on the next date of hearing in case there is no information on record as to the compliance of the order passed by the Tribunal, the appeal will be liable to be dismissed for non-compliance of provisions of Section 35-F of the Central Excises and Salt Act, 1944 without any further notice. We have got full sympathy with the applicants, but the facts and circumstances of the case do not justify the admission of the miscellaneous application. The same is accordingly rejected.
Pronounced and dictated in open court.