Collector Of Central Ex. vs Vishal Paper Mills (P) Ltd. on 20 January, 1995

Customs, Excise and Gold Tribunal - Delhi

Equivalent citations: 1995 ECR 291 Tri Delhi, 1995 (77) ELT 220 Tri Del

ORDER

P.K. Kapoor, Member (T)

1. This is an appeal by the Collector, Central Excise, Chandigarh against the order dated 31-8-1988 passed by the Collector of Central Excise .(Appeals) New Delhi. The respondents who are engaged in the manufacture of paper and paper board falling under Chapter 48 of the Central Excise Tariff filed a Classification List No. 28/87-88, dated 1-4-1987 claiming therein the benefit of the exemption admissible to S.S.I. units in terms of Notification No. 175/86-C.E., dated 1-3-1986 (as amended). After the approval of the classification list, the respondents filed another Classification List No. 62/87-88, dated 15-9-1987 claiming therein the benefit in terms of Notification No. 175/86-C.E., dated 1-3-1986 (as amended) and Notification No. 45/83, dated 1-3-1983 (as amended) in respect of Mill Board manufactured by them. The respondents were issued a show cause notice dated 17-12-1987 stating that in terms of para 2 of Notification No. 45/83, dated 1-3-1983, the benefit of the Notification was not admissible to them since they were also availing the exemption in terms of Notification No. 85/85, dated 17-3-1985 (as superseded by Notification No. 175/86, dated 1-3-1986). Thereafter the Assistant Collector passed an order dated 1-6-1988 denying the benefit of Notification No. 45/83-C.E., dated 1-3-1983 to respondents. Being aggrieved by the order passed by the Assistant Collector, the respondents preferred an appeal before the Collector (Appeals) who vide his impugned order set aside the order passed by the Assistant Collector on the grounds that para 2 of Notification No. 45/83, dated 1-3-1983 only provides that the exemption under the said notification would not be admissible to a manufacturer who also availed the benefit of the small scale exemption under Notification No. 85/85, dated 17-3-1985, and there being no such stipulation in the said notification in regard to Notification No. 175/86, dated 1-3-1986 (issued in supersession of Notification No. 85/85, dated 17-3-1985) the benefit of Notification No. 45/83-C.E., dated 1-3-1983 could not be denied on the grounds that the assessees were also availing the benefit of Notification No. 175/86, dated 1-3-1986.

2. Appearing on behalf of the Revenue, Shri Sharad Bhansali, learned SDR stated that the Collector (Appeals) had erred in holding that after the issue of Notification No. 175/86, dated 1-3-1986 the respondents were eligible for exemption under Notification No. 45/83, dated 17-3-1985 as well as under Notification No. 175/86, dated 1-3-1986. He contended that the Collector (Appeals) should have held that Notification No. 175/86, dated 1-3-1986 having been issued in supersession of the earlier S.S.I. Notification No. 85/85, dated 17-3-1985 in Notification No. 45/83, dated 1-3-1983, Notification No. 175/86, dated 1-3-1986 was to be read wherever Notification No. 85/85, dated 17-3-1985 was occuring. In support of his submission he placed reliance on the judgment of the Bombay High Court in the case of Chowgule and Co. Pvt. Ltd. v. Union of India reported in 1988 (38) E.L.T. 401.

3. On behalf of the respondents Shri G.S. Bhangoo, learned Advocate, submitted that the notification relating to the exemption to small scale units was amended several times and simultaneously with each such amendment Notification No. 45/83, dated 1-3-1983 was amended to provide that the exemption under the said notification would not be admissible to manufacturers who availed the exemption admissible to S.S.I, units. He contended that the fact that para 2 of Notification No. 45/83, dated 1-3-1983 was not similarly amended when Notification 175/86, dated 1-3-1986 was issued was indicative of the Government's intention not to deny the exemption under the said notification to manufacturers who availed the exemption admissible to S.S.I, units. He pleaded for the rejection of the appeal.

4. We have examined the records of the case and considered the submissions made on behalf of both sides. It is seen that the only point that arises for consideration in this case is whether the exemption under Notification No. 45/83, dated 1-3-1983 could be denied to a unit availing S.S.I. exemption under Notification No. 175/86, dated 1-3-1986 issued in supersession of Notification No. 85/85, dated 17-3-1985 even though the exemption clause in para 2 of Notification No. 45/83, dated 1-3-1983 was not amended to substitute Notification No. 85/85 by Notification No. 175/86, dated 1-3-1986.

5. Before examining the rival contentions, we refer to para 2 of Notification No. 45/83-C.E., dated 1-3-1983 (as amended) reproduced below :-

" 2. Nothing contained in this notification shall apply to a manufacturer of paper board who avails of the exemption under the notification of the Government of India, in the Ministry of Finance (Department of Revenue), No. 89/80-Central Excises, dated the 19th June, 1980, or No. 85/85-Central Excises, dated the 17th March, 1985."

On behalf of the appellant, the learned SDR has contended that in terms of Section 8 of the General Clauses Act, Notification No. 175/86-C.E., dated 1-3-1986 having been issued in supersession of Notification No. 85/85-C.E., dated 17-3-1985, any reference to Notification No. 85/85 - C.E., dated 17-3-1985 in Notification No. 45/83-C.E., dated 1-3-1983 will have to be deemed as reference to Notification No. 175/86-C.E., dated 1-3-1986. In support of his contention he has placed reliance on the observation of the Bombay High Court in para 40 of the judgment in the case of Chowgule and Co. Pvt. Ltd. v. Union of India, reported in 1988 (38) E.L.T. 401 extracted below :-

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On a plain reading of the extract from the Bombay High Court judgment, it follows that Section 8 of the General Clauses Act does not relate to a situation when any notification is issued in supersession of any earlier notification since all that is provided in Section 8 ibid is that if any Central Act or Regulation after being repealed is re-enacted with or without modification of any provision of the former enactment, then any reference in any other enactment or in any instrument to the repealed provision has to be construed as reference to the re-enacted provision unless a different intention is indicated. In this regard we find that in the case of P.M. Barot of Ghanshyam Tobacco Stores v. Collector of Central Excise, reported in 1989 (39) E.L.T. 603 the Tribunal has also held that Rules or subordinate legislation cannot acquire the same status as that of a 'Statute' as contemplated by Section 3 (19) of the General Clauses Act, 1897 or 'Regulations' as defined in Section 3(5) thereof.

6. In view of the above discussion we do not find any force in the contention of the learned S.D.R. that in terms of Section 8 of the General Clauses Act, after the issue of Notification No. 175/86-C.E., dated 1-3-1986 in supersession of Notification No. 85/85-C.E., dated 17-3-1985 in para 2 of Notification No. 45/83-C.E., dated 1-3-1983, Notification No. 85/85-C.E., dated 17-3-1985 will have to be read as Notification No. 175/86, dated 1-3-1986.

7. In view of the foregoing we do not find any infirmity in the findings of the Collector (Appeals) that after 1-3-1986, in the absence of any provision in Notification No. 45/83-C.E., dt. 1-3-1983, denying the benefit of the exemption under the notification to manufacturers who were availing the S.S.I. Exemption under Notification No. 175/86-C.E., dt. 1-3-1986, the respondents were also eligible for the exemption under Notification No. 45/83-C.E., dt. 1-3-1983.

8. The appeal is, therefore, rejected.