Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Gemini Overseas Ltd. on 31 July, 1992
Equivalent citations: 1993(63)ELT574(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. These are revenue appeals against the order of the Collector (Appeals) who have held that cess of 0.05% on the imported items, namely, of different type of raw silk is not leviable in terms of the provisions of Section 5-A of the Textile Committee (Amendment) Act, 1991 and Cess Rules, 1975. The learned Collector (Appeals) has held as follows :
"I have examined the appeal and submissions. Cess on such goods is leviable under the provisions of the Textile Committee (Amendment) Act, 1963 and Cess Rules, 1975. The Section 5A of the said Act authorised imposition of cess on textile and textile machinery manufactured in India and it is also further laid down that the manufacturer shall pay to the Committee the amount of duty of excise levied under Sub-section (1) within one month from the date on which he received a notice of demand therefor from the Committee. The mechanism for collection of such cess has been laid down in the rules framed Under Section 22 of the said Act under the name and style. "The Textile Committee (Cess) Rules, 1975" read with Notification F. No. 55018/(35)/75-Tax.(III)/CTEG dt. 1-6-1977 published in part II, Section 3, Sub-section (ii) of the Gazette of India Extra-ordinary dated 1-6-1977 and in that cess is leviable and payable to Textile Committee.
In view of the above, no cess is leviable on the imported goods under the Textile Committee Act. Accordingly, I set aside the order of the Asstt. Collector. The appeal is allowed."
2. The Revenue in these appeals has contended that Notification F. No. 55018/(35)/75-Tex.(HI) CTEG dt. 1-6-1977 mentioned about fixed cess @0.05% ad valorem and declares it to be charged as duty of excise and in terms of Section 3(1) of the Customs Tariff Act, 1975 which empowers for the levy of additional duty equal to excise duty. Therefore, the Revenue have stated that cess duty at the rate of 0.05% is leviable when all the imported goods as specified in the Textile Committee (Amendment) Act, 1963 read with the notification mentioned above. They have contended that in these cases cess had not been collected at the time of clearance of the goods and therefore, a show cause notice had been issued under Section 28(1) of the Customs Act, 1962 and thereafter the duty had been confirmed by the Asstt. Collector in the order-in-original. They have contended that the learned Collector was not justified in setting aside the order-in-original.
3. We have heard Shri J.N. Nair, JDR for the Revenue and Shri B.R. Dhavle, learned consultant for the respondent.
4. Shri Nair submitted that this matter is no longer res integra as the Bench has already considered the matter in great detail in similar cases on the same question in the case of Collector of Customs, Calcutta v. Birla Jute Industries Ltd. in Order No. C/17 to 20/92-D, dated 14-1-1992 reported in 1992 (61) E.L.T. 100 (Tri.). He further contended that the Bench had gone into great detail as regards the collection of cess by the authorities constituted under the Customs Act and have held that the short levy has been demanded has been raised in respect of CVD under Section 3 of the Customs Tariff Act and Cess Textile Committee (Amendment) Act, 1963 which is separately leviable by Textile Committee under the provision of the said Act. The bench has already held that as per the Notification the CVD has to be equivalent to the cess at the rate of 0.05% leviable on all imported goods as specified in the Textile Committee (Amendment) Act, 1963 read with the said notification.
5. Shri Dhavle, learned consultant contended that the imported goods was being utilised for manufacture of textile in Handloom Industry and therefore, they were exempted under the said notification and hence the cess was not leviable in the present case.
6. We have carefully considered the submissions made by both the sides and perused the order as well as the notification in question. The notification in question fixed the rate of cess of 0.05% ad valorem at which the duty of excise shall be levied and collected for the purposes of Textile Committee Act, 1963 and on all textiles and all textile machinery manufactured in India except the textile manufactured from handloom or powerloom industry. Therefore, what is exempted in the said notification is the cess to be levied under the Textile Committee Act, 1963. The respondents have not produced any notification exempting the levy of CV duty under the provisions of the Customs Act, 1962. The Bench has gone into great detail in order of Collector of Customs v. Birla Jute Industries on this very issue and have categorically held that levy of CV duty under Section 3(1) of the Customs Tariff Act, 1975 is leviable at the rate of 0.05% being equivalent to the cess levied under Section 5A of Textile Committee Act, 1963 and as per the cited notification (supra). The respondents are contending that cess is exempted on textile manufactured out of handloom and therefore the CV Duty should also not be levied under the Customs Tariff Act. In this case, the demand is not under the Textile Committee Act but under the Customs Tariff Act. Therefore, there being no independent notificatiion exempting the levy of CV duty. The claim of the Department is sustainable and applying the ratio of the above cited impugned order, we set aside the impugned order and allow the appeal.