Customs, Excise and Gold Tribunal - Delhi
Birla Jute Industries Ltd. vs Commissioner Of Central Excise on 22 March, 1999
Equivalent citations: 1999(65)ECC451, 1999(111)ELT503(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. These are two appeals arising out of a common order in appeal dated 22-2-1994 passed by the Collector (Appeals), New Delhi. The issue involved is about the rate of duty chargeable on the goods removed after 5 PM on the date of presentation of Finance Bill in the Parliament.
2. Shri A. Bhattacharya, learned Advocate has appeared on behalf of M/s. Birla Jute Mills in E/A. No. 1193/94-C. No one has appeared on behalf of M/s. Shriram Cement Works in A. No. 1204/94-C inspite of notice. As the issue involved in both the appeals is common, these are being disposed of by this common order.
3. Shri Bhattacharya, learned Advocate submits that by a notification, Basic Excise duty at the rate of Rs. 290/- per MT was levied on cement manufactured by them. In addition, Special Excise duty at the rate of 15% of Basic Excise duty was also chargeable. While presenting the Finance Bill, the Finance Minister mentioned in his Budget speech that as a measure of simplification, the Special Excise duty is merged with the Special Excise duty rates. By issue of Notification 5/93, dated 28-2-1993, the Basic Excise duty was enhanced from Rs. 290/- to Rs. 330/- per MT. Both the appellants had removed the cement after 5 PM on the day of presentation of budget dated 27-2-1993 after giving an undertaking under Rule 224(2A) of the Central Excise Rules. The learned Counsel further submitted that as the Special Excise duty has been merged with the Basic Excise duty, in fact the rate of duty has come down from Rs. 330.50 to Rs. 330/- only and the question of charging any additional duty from them should not have arisen. Further, relying on the decision of the Tribunal in the case of Sirpur Papers v. Collector of Central Excise, Madras reported in [1984 (16) E.L.T. 546], he contended that both the Basic Excise duty and Special Excise duty are duties of excise and accordingly, the rate of duty which was applicable with effect from 28-2-1993 should have been charged from the appellants i.e. the chargeable duty at the rate of Rs. 330/- per MT only. Finally, he submitted that under Rule 224(2A), the undertaking is required to be given to pay the duty at the enhanced rate if any, that may be applicable to such goods with effect from the date immediately following the date of presentation of budget. The duty according to him as defined in Rules 2(V) of the Central Excise Rules means the duty payable under Section 3 and as per Section 3, the duty is as per the rate set forth in the Schedule to the Central Excise Tariff Act. He states that as the rate has been increased by way of Notification, the undertaking is not invokable in the present situation because the Scheduled rates in the tariff has not undergone any change.
4. Countering the arguments, Shri H.K. Jain, learned DR submitted that the issue is squarely covered by the decision of the Appellate Tribunal in the case of Manglam Cement v. Collector of Customs, Jaipur reported in [1998 (29) R.L.T. 669] where the Tribunal held that the demand of duty at the enhanced rate in respect of the clearances effected on budget day, is payable by the appellants therein. He also mentioned that any duty leviable under Section 3 of the Act has to be considered taking into the rates specified in the Tariff Act and under Notification issued under Section 5A of the Act. Once the rate of duty has been enhanced, the undertaking given by the appellants is invokable for the clearances effected on the budget day.
5. We have considered the submissions of both the sides. We agree with the submissions of the learned SDR that the decision in the case of Mangalam Cement (supra) is on all fours with the issue involved in both these appeals. As in that appeal also, the issue involved was the same regarding chargeability of duty at enhanced rate on cement cleared on budget day. The rate of duty enhanced, if any, was by way of notification. We do not find any reason to differ with the view taken by the Tribunal in Mangalam Cement case and following the ratio of that decision, we reject both the appeals.