TaxTMI 
TaxTMI 
1994 (12) TMI 212
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....ue has been decided against them by Tribunal in case of Reckitt & Colman of India Ltd. v. CCE - reported in 1992 (63) E.L.T. 148 (Tribunal) and in case of Sarda Service Corporation v. CCE - reported in 1992 (62) E.L.T. 173. There is, he also conceded, no contrary judgment of Tribunal or any Court. 2.2 The Learned Advocate however submitted that basic issue has not been fully appreciated in these judgments which are sub-silentio. Rule 57A as well as notification issued thereunder refers to "Specified duty". Special excise duty is a "Specified duty". Rule 57B stipulates that notwithstanding anything contained in Rule 57A, credit of specified duty on inputs may, in a case where the duty on inputs has been paid under a notification issued un....
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....le thereon, on the basis of value of clearances of such inputs, credit of duty may be allowed at the rate otherwise applicable to such inputs but for the said Notification. The proviso to the said Rule 57B lays down that such a Notification should provide for grant of credit for such inputs at such higher rates as may be specified. Special Excise Duty is not covered by any such exemption Notification. What is exempted under Exemption Notification 175/86, dated 1-3-1986 as subsequently amended is the duty of excise leviable which is specified in the Schedule to the Central Excise Tariff Act, 1985. Such a duty is the basic excise duty. Special excise duty is not specified in the said Schedule and it is levied under the provisions of the Finan....
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....ide for grant of credit on such goods at a higher rate. 5.5 Para 5 of Notification 175/86, allows credit, in spite of exemption granted under notification, at a higher rate. Para 5 of this notification in other words, says that even though certain goods may have paid duty at a concessional rate by virtue of this notification, these would be eligible, in terms of rule 57B, to a credit at a higher rate when used as inputs in the manufacture of finished excisable goods. In other words, credit at the normal rate such as is charged in case of other goods. 6. Notification No. 175/86, dated 1-3-1986, as amended, has been issued under Rule 8 of Central Excise Rules, 1944, simpliciter without reference to any other statute. This noti....
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....4 ... by reason of sub-section (4) of Section 32 of the Finance Act, 1979 and similar provision in the other Finance Acts. Rule 8(1) would become applicable empowering the Central Government to grant exemption from payment of special duty of excise, but when the Central Government exercises this power, it would be doing so under Rule 8(1) read with sub-section (4) of Section 32 or other similar provision. The reference to the source of power in such a case would not be just to Rule 8(1), since it does not of its own force and on its own language apply to granting of exemption in respect of special duty of excise, but the reference would have to be to Rule 8(1) read with sub-seciton (4) of Section 32 or other similar provision." 6.3 ....
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....ued does not mention special excise duty, but only basic duty, higher rate in case of special duty cannot be claimed only on the basis of Rule 57B without reference to its proviso. 7.2 If legislature thought it fit not to grant such higher rate in case of special excise duty, there is, in my view, nothing more to be said. If however, it was a result of omission, it is not for the Courts to supply the deficiency. Assuming that similar concession ought to have been, but has not been, provided for in the statute, it cannot be so provided for by Court as to do so would be to take it away from the field of construction and push it up to the domain of legislation. Assuming that there is causus omissions, the defect cannot be remedied by t....