Customs, Excise and Gold Tribunal - Delhi
Jayalakshmi Cotton And Oil Products P. ... vs Collector Of C. Ex. on 17 April, 1990
Equivalent citations: 1990(50)ELT268(TRI-DEL)
ORDER
G. Sankaran, President
1. M/s. Jayalakshmi Cotton & Oil Products Pvt. Ltd. has filed the instant appeal aggrieved with the Order No. 103/86 (G) dated 12-3-86 passed by the Collector of Central Excise (Appeals), Madras.
2. The facts of the case, briefly stated, are that the appellants were engaged, during the material time, in producing vegetable oil from oilseeds and processing the same. During the months of January and February 1984, they paid cess on the oil produced at Rs. 5/- per quintal. Later on, they preferred a claim for refund of the cess so paid amounting to Rs. 62,488.25 on the ground that they were not required to pay the cess at all. The contention was that under the Vegetable Oils Cess Act, 1983, cess was not payable on oil produced from oilseeds or any other oil bearing material of plant origin which had been subjected to any processing subsequent to the recovery of oil. This claim was dismissed by the Assistant Collector whose Order was upheld by the Collector (Appeals). It is the latter's order that is now under appeal in the present proceedings.
3. The appeal was fixed for hearing on 4-4-90 and a notice to this effect was sent by registered post to the appellants. However, when the matter was called on for hearing, they were not represented in the Court nor was there any communication, on record, from them in response to the notice of hearing seeking adjournment. In the circumstances, we perused the record and heard Shri Chandrasekaran, DR, for the respondent-Collector.
4. The Vegetable Oils Cess Act, 1983 (Act No. 30 of 1983) was brought into force from 1-1-84. This Act provided for the levy and collection of a cess on vegetable oils for the development of the oilseeds industry and vegetable oils industry and matters connected therewith. Section 3 providing for levy and collection of cess on vegetable oils read as follows :-
"(1) There shall be levied and collected by way of cess for the purposes of the National Oilseeds and Vegetable Oils Development Board Act, 1983, a duty of excise on vegetable oils produced in any mill in India at such rate not exceeding five rupees per quintal of vegetable oil, as the Central Government may, from time to time, specify by notification in the Official Gazette:
Provided that until such rate is specified by the Central Government, the duty of excise shall be levied and collected at the rate of one rupee per quintal of vegetable oil."
5. Section 2 of the Act which contains definitions of certain terms used in the Act does not define vegetable oil. However, it defines 'mill' as follows :-
" 'mill' means any premises in which or in any part of which, vegetable oil is produced, or is ordinarily produced, with the aid of power.
Explanation - "Power" means electrical energy or any other form of energy, which is mechanically transmitted and is not generated by human or animal agency."
There is no dispute that the appellants are a 'mill' for the purpose of the Act. Sub-section (2) of Section 2 provides that words and expressions used but not defined in the Act and defined in the National Oilseeds and Vegetable Oils Development Board Act, 1983, (Act No. 29 of 1983) shall have the meanings respectively assigned to them in that Act. The expression 'vegetable oil' has been defined in Section 3(h) of Act No. 29 of 1983 as follows :-
"3(h) 'vegetable oil' means any oil produced from oilseeds, or any other oil bearing material of plant origin, and containing glycerides but does not include any such vegetable oil which has been subjected to any processing subsequent to the recovery of oil."
Act No. 29 of 1983 was brought into force on 8-3-84. The contention of the appellants is two-fold -
(a) Since Act No. 30 of 1983, in terms of which the subject amount of cess was paid, did not contain a definition of 'vegetable oil', one has to look at the definition of the term in Act No. 29 of 1983. However, the latter Act was brought into force only on 8-3-84. Therefore, till the coming into force of Act No. 29 of 1983, no cess could have been levied on vegetable oil under Act No. 30 of 1983 even though that Act provided for the levy and collection of cess on vegetable oil and the Government had also issued a notification prescribing the rate of cess as authorised under the Act.
(b) Even assuming that cess was payable under Act No. 30 of 1983, though Act No. 29 of 1983 had not been brought into force till 8-3-84, it was not payable in the appellants' case because they were processing crude vegetable oil, as extracted from the oilseeds and, according to the definition in Act No. 29 of 1983, oil subjected to processing was not included in the definition of 'vegetable oil'.
6. The Departmental Representative countered both the above submissions by adopting the reasoning contained in the orders of the lower authorities.
7. Act No. 30 of 1983, as we have seen, provides for levy and collection of cess on vegetable oil produced in any 'mill' in India at such rate not exceeding five rupees per quintal as the Central Government may specify by notification. It is no doubt true that there is no definition of "vegetable oil" in Act No. 30 of 1983 and Act No. 29 of 1983 containing the definition of the term had not come into force. This, in our opinion, would not mean that no cess whatsoever was payable till the enforcement of Act No. 29 of 1983, that is, 8-3-84. The authority for levy and collection of cess on vegetable oils produced in any mill was clearly spelt out in Section 3 of Act No. 30 of 1983. There is no dispute that the appellants had produced vegetable oil in their mill. Even without the aid of the definition of the term contained in Act No. 29 of 1983, cess could have been legitimately collected on vegetable oil produced in any mill, in terms of Section 3 of the Act (30 of 1983). As such, we reject the first contention.
8. As regards the second contention, it may be stated that the effect of the definition of "vegetable oil" in Act No. 29 of 1983 is, inter alia, to exclude any vegetable oil (produced from oilseeds or any other oil bearing material of plant origin and containing glycerides) which had been subjected to any processing subsequent to the recovery of oil. The term was expressly defined to mean any oil produced from oilseeds, or any other oil bearing material of plant origin and containing glycerides. There is no dispute that the appellants did produce oil in their mill from oil seeds. Cess was, therefore, leviable even in terms of this definition on the crude vegetable oil as extracted or produced from oil seeds. Of course, the definition excluded processed oil and processed oil could not have been levied with cess. In the present case, it is not the processed oil which was subjected to cess but the crude oil as extracted or produced from oilseeds. The second contention of the appellants is also not tenable.
9. In the above view of the matter, we do not see any merit in the appeal. Consequently, the impugned order is upheld and the appeal is dismissed.