TaxTMI 
TaxTMI 
2013 (7) TMI 435
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....yable and therefore it includes all types of Excise duties. Therefore, the decision of the lower authority that they are liable to pay AED (T&TA) in addition to Excise duty is not correct. He relies upon several decisions of the Tribunal. Shri Rajendra Nagar, learned SDR reiterates the OIA. 3. We have considered the submissions made by both sides. We find that in this case, Notification No.33/1001-CE, provides an option to manufacture embroidery fabrics to pay the duty @ Rs.45/- per metre length of the machine per shift instead of regular rate of duty. The question is as to whether this would include all types of duties. Before we proceed further, it is necessary to note the preamble of the notification which is relevant, which is reproduced below: "In excise of the powers conferred by Rule 15 of the Central Excise (No.2) Rules, 2001, the Central Government hereby specifies embroidery in the piece, in strips or in motifs on cotton fabrics, man made fabrics, silk fabrics or woolen fabrics, in respect of which an assessee shall have the option to pay the duty of Excise on the basis of meter length of the machine per shift and fixes a rate of duty of Rs.45 per meter....
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.... 3. For better appreciation, relevant provision of the said Act is being reproduced below:- "3. Levy and collection of additional duties of excise on certain textiles and textile articles. (1) When goods of the description mentioned in the Schedule chargeable with a duty of excise under the Central Excise Act, 1944 (1 of 1944), read with any Notification for the time being in force issued by the Central Government in relation to the duty so chargeable (......................), are assessed to duty, there shall be levied and collected a duty of excise equal to fifteen per cent of the total amount so chargeable on such goods. (2) The duties of excise referred to in sub-Section (1) in respect of the goods specified in the Schedule shall be in addition to the duties of excise chargeable on such goods under the Central Excise Act, 1944 (1 of 1944), or any other law for the time being in force and shall be levied for the purpose of Union and the proceeds thereof shall not be distributed among the States. (3) The provisions of Central Excise, Act, 1944 (1 of 1944), and the rules made there under, includes those relating to refunds and exempt....
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....rt and the Apex Court allowed the appeal reversing the Tribunal's decision. In these circumstances, the impugned order cannot be sustained. Hence, we allow the appeal with consequential relief." 5. As is seen from above, the earlier Tribunal decision in the case of Gokak Mills adopting the view that inasmuch as the Notification involved in that case granted exemption from duty of excise, having been issued under Rule 8 (1) of the Central Excise Rules, without reference to any other statute, would not apply to the levy and collection of other kinds of duties and must be read as limited to duty of excise, was reversed by the Hon'ble Supreme Court. 6. Inasmuch as the above two judgments squarely cover the issue in question, I find no justification to confirm the demand against the appellant. Their appeal is accordingly, allowed. Difference of Opinion Whether the appeal is required to be rejected as held by Member (Technical) or the same is required to be allowed as held by Member (Judicial) ORDER NO.M/1688-1689/WZB/AHD/2010 Per: Archana Wadhwa: Vide order No.M/1008-1009/WZB/AH'BAD/2009 dated 24.6.2009, f....
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....CCE Bangalore - 2007 (05) LCX 0303 covers the disputed issue in favour of the appellant. iii) Whether the Tribunal's decision in the case of Gokak Mills Vs. CCE Bangalore - 2001 (043) RLT 0459, which stands reversed by the Apex Court would cover the disputed issue or not. iv) Whether the appellant is required to pay additional duty in terms of additional Excise Duty (T & TA). v) Whether the appeal is required to be rejected as held by Member (Technical) or the same is required to be allowed as held by Member (Judicial). 2. Ld. counsel appearing on behalf of the appellant would support the order of Hon'ble Member (Judicial) and submit that the Additional Excise Duty (Textile and Textile Articles) [hereinafter referred to as AED (T&TA)] is dated as per the act on the excise duty levied by the special act. It is his submission that the appellant herein is manufacturing silk fabrics embroider and has availed the benefit of Notification No.33/2001-CE dated 28.06.01. He reads the entire notification and more specifically clause 3 to the said notification along with the preambles. He would submit that AED (T&TA) is collected as a duty of ....
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....be extended to payment of cess provided under industries (Development and Regulation) Act, 1951 and Education Cess leviable under Finance Act, 2004 can be calculated and collected as per law. It is his submission that Hon'ble High Supreme Court has approved this decision. He would also refer to various other decisions which are as follows: 1. Jindal Drugs Ltd. - 2011 (267) ELT 653 (Tri.-Del.) 2. Hotel Leela Venture Ltd. - 2009 (234) ELT 389 (S.C.) 3. Orient Traders - 2009 (237) ELT 447 (S.C.) & 4. CBEC Circular dated 11.12.96. 4. I have considered the submissions made at length by both sides and perused the records. The point that needs to be decided in the difference of opinion is whether the discharge of duty excise under Notification No.33/2001-CE would take into its ambit the payment of required to be paid on AED (T&TA), 1978. 5. In order to appreciate the correct position or the duty liability, it is required to refer to Notification No.33/2001-CE. The preamble to the said notification reads as under: "In exercise of the powers conferred by Rule 15 of the Central Excise (No.2) Rules, 2001, th....
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...., shall, as far as may be, apply in relation to the levy and collection of such other duties of excise as they apply in relation to the levy and collection of the duties of excise leviable under that Act or those rules, as the case may be. (iii) ............... (iv) .............. (v) Objections over non-payment/non-collection of some of the said duties, such as Additional Duty of Excise (AED) and Special Additional Excise Duly (SAED) on Motor Spirit (MS) and High Speed Diesel oil (H.S.D.) and Education Cess and National Calamity Contingent Duty (NCCD) on various goods are still being raised and demands are being issued by the field formations in pursuance thereof or otherwise. This is causing hardship to the exporting community and may adversely affect country's exports. To put an end to the uncertainty for the trade and industry and to bring in clarity, the Board, for the purpose of uniformity with respect to levy of duties of excise, hereby orders that as per rule 19 of the Central Excise Rules, 2002, rule 19 of the Central Excise Rules, 2001 and rule 13 of the Central Excise Rules, 1944, none of the duties chargeable under any Act....
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....er any Act or Parliament which provides that in relation to levy and collection of such duty, the provisions of Central Excise Act in the Rules made there under, shall, as far as may be, apply was/is payable under export of goods under bond. I am conscious of the fact that the said circular is issued for the specific reference raised from the trade as well as from the lower formation, as to export of the goods under bond, whether other duties are applicable to be paid by the assessee or not, but the understanding of the issue of the Board seems to be that any duty which is payable under the special Act of the Parliament and needs to be collected as per the provisions of Central Excise Act, there is no needs to pay such duty for the export of the goods can be considered to come to a conclusion in the matter in hand. It is undisputed that AED (T&TA) is levied under the special provisions of the Act and these are to be recovered as duty of excise under the provisions of Central Excise Act, is also mandated in the very same Act. If that be so, then Revenue's argument against the Board's direction issued under Section 37B; is inconsistent. 9. Further, it is seen that clause 3 of noti....