1985 (3) TMI 79 - AT - Central Excise

Tribunal Rules Special Excise Duty Inapplicable to Pre-March 1978 Manufactured Goods Despite Post-Date Removal.

VAZIR SULTAN TOBACCO CO. LTD. Versus COLLECTOR OF C. EX., HYDERABAD

VAZIR SULTAN TOBACCO CO. LTD. Versus COLLECTOR OF C. EX., HYDERABAD - 1985 (21) E.L.T. 757 (Tribunal) Issues Involved:1. Whether Special Excise Duty (SED) is leviable on goods manufactured before the imposition of the duty but removed after its imposition.2. Whether the interpretation of Section 37 of the Finance Act, 1978, by the lower authorities amounts to giving retrospective effect to the provision.Issue-wise Analysis:1. Levy of SED on Goods Manufactured Before Imposition:The primary contention was whether the SED imposed under Section 37 of the Finance Act, 1978, is applicable to goods manufactured before 1-3-1978 but removed between 1-3-1978 and 12-3-1978. The appellants argued that SED, being an excise duty, is a levy on manufacture, not on removal. Citing multiple judicial precedents, including the Supreme Court judgments in M/s. Chhotabhai Jethabhai Patel and Company v. Union of India (AIR 1962 S.C. 1006) and R.C. Jall Parsi v. Union of India (AIR 1962 SC 1281), the appellants emphasized that excise duty is related to the manufacture of goods and not their removal. They argued that the goods in question, having been manufactured before the imposition of SED, should not be liable for the duty.The respondent countered this by stressing that Section 37 of the Finance Act, 1978, clearly states that SED is to be levied on goods chargeable with a duty of excise under the Central Excises Act. The respondent cited the Kerala High Court judgment in Aluminium Industries Limited v. Union of India (1984 (16) E.L.T. 183) to support the view that the chargeability and computation of excise duty are centered at the time of removal, not manufacture.The Tribunal, referring to the Federal Court's advisory opinion in The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, and the Supreme Court judgments, concluded that the taxable event for excise duty is the manufacture or production of goods, although the collection may occur later. Therefore, SED could not be levied on goods manufactured before its imposition.2. Retrospective Effect of Section 37:The appellants argued that interpreting Section 37 to apply SED on goods manufactured before its imposition would amount to giving retrospective effect to the provision, which is not justified without explicit legislative intent. They cited the Supreme Court judgment in D.R. Kohli and others v. Atul Products Limited, which emphasized that excise duty could only be levied on goods manufactured after the introduction of the relevant tariff item.The respondent maintained that there was no question of retrospectivity since the goods were excisable both before and after the introduction of the Finance Bill, 1978. The respondent referenced the case of Assankutty v. Assistant Collector of Central Excise, asserting that the levy of duty attaches automatically to excisable goods, regardless of when they were manufactured.The Tribunal, however, found that the imposition of SED on goods manufactured before 1-3-1978 would indeed amount to giving retrospective effect to Section 37, which was not supported by the legislative text. The Tribunal also noted that the Supreme Court's judgments in Kirloskar Brothers and Amar Dye Chem supported the view that goods not liable to duty at the time of manufacture could not be subjected to new duties imposed later.Judgment:The Tribunal concluded that SED, being a separate levy under Section 37 of the Finance Act, 1978, could not be applied to goods manufactured before the date of its imposition. The appeal was allowed, and consequential relief was directed to be granted to the appellants. The majority opinion held that the goods should not be subjected to SED if they were manufactured before 1-3-1978, aligning with the principles established in the cited Supreme Court judgments. However, a dissenting opinion argued that the special duty should be applicable to goods removed after the imposition date, irrespective of their manufacture date, emphasizing the distinction between basic excise duty and special excise duty.