TaxTMI 
TaxTMI 
1985 (1) TMI 324
X X X X Extracts X X X X
X X X X Extracts X X X X
....(Refunds) before whom the refund claim was filed, rejected the said refund claim by his Order dated 16-11-1973. The appeal before the Appellate Collector of Central Excises, Madras was also rejected vide his order dated 5-8-1974. 2. Being aggrieved by the said Order of the Appellate Collector, the appellants filed Revision Application before the Government of India which now stands transferred to this Tribunal and is treated as an appeal. 3. We have heard Shri C.S. Lodha, Advocate, counsel for the appellants and Mrs. Vijay Zutshi, S.D.R. for the department and gone through the record. 4. Shri Lodha, the learned counsel for the appellants raised a preliminary objection that this Tribunal has no jurisdiction to hear and entertain this appeal. According to him, Section 35P(2) of the Central Excises and Salt Act, 1944 (1 of 1944) gives jurisdiction to the Tribunal to decide the transferred matters pending immediately before the appointed day before the Central Government under Section 36, as it stood immediately before that date. According to Shri Lodha, the present case which is now before this Tribunal has not been validly transferred to this Tribunal as these....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... incorporated become part and parcel of the later Act as they had been "bodily transposed into it". According to Shri Lodha, the result is to constitute the later Act along with the incorporated provisions of the earlier Act an independent legislation which is not modified or repealed by a Modification or a Repeal of the earlier Act. He cited three decisions of Supreme Court, namely, Narotam Dass v. State of M.P. (AIR 1964 S.C. 1667), Bolani Ores Ltd. v. State of Orissa (Supra) and Mahindra and Mahindra Ltd. v. Union of India (Supra) in support of this contention. 5. In view of these submissions, Shri Lodha, the learned counsel of the appellants, requested that the matter be sent back to Government of India, to be dealt with under the provisions of Section 10 of the Produce Cess Act, 1966. 6. Mrs. Vijay Zutshi, the learned S.D.R. countered the arguments of Shri Lodha and pointed out that preamble of the impugned order passed by the Appellate Collector of Central Excise, Madras shows that the revision proceedings pending before the Government of India which were transferred to this Tribunal after coming into force the Finance Act, 1982, under Section 35P of the Centr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y quantity of such oils is exported, the miller is entitled to the refund from out of the proceeds of cess levied and collected under the provisions of the Produce Cess Act, 1966. 10. In this case before us, a refund claim of Rs. 16,000 was filed out of the cess paid on castor oil (a product specified in Second Schedule) sold through commission agents and exported by shippers. The present appeal relates to claim for refund on such exports up to the end of December, 1972, and hence in view of the provisions of Section 15(2) of the Produce Cess Act, 1966, the provisions of the Central Excises and Salt Act, 1944, and the rules made thereunder are to be applied. 11. The question arises whether the provisions of appeal as laid down in the Central Excises and Salt Act, 1944 would be applicable in this case or the appellate procedure as mentioned in Section 10 of the Produce Cess Act, 1966 is to be followed ? 12. Under Section 11B of the Central Excises and Salt Act, 1944 which was brought into force on 17th November, 1980, any person can claim refund of excise duty paid by him by making an application to the Assistant Collector of Central Excise within six months ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sal of this Section shows that resort to the provisions of this Section can be made only if an occupier of a mill is aggrieved by an assessment made under Section 9 of the Act. Assessments under Section 9 are made on the basis of returns filed under Section 8 of the said Act. Section 8 does not speak of the refund of cess. It is only Section 6 of this Act which talks of refund of cess on oils exported, which is the case before us. From the scheme of the Produce Cess Act, 1966, it is clear that the orders relating to refund of cess on oil exported are not redressable under Section 10 of this Act, which talks only of assessment made under Section 9 of the said Act. In these circumstances, in view of the provisions of Section 15(2) of the Produce Cess Act, 1966, one has to take recourse to the appellate procedure as laid down in the Central Excises and Salt Act, 1944 from time to time regarding orders for refund of cess on oils exported. 16. In this case before us, the claim for refund of cess filed by the appellants was rejected by the Assistant Collector of Central Excise, Hyderabad II Division by his Order C. No. V/12/30/7/69 dated 16-11-1973. Aggrieved by that order, an ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Appeal. 18. The words "so far as may be" occurring in Section 15(2) of the Produce Cess Act, 1966 nowhere restrict that the Appellate procedure as laid down under Section 10 of this Produce Cess Act, 1966 will only be applicable in the matters under the said Act. Hon'ble Supreme Court in the case of Mahindra and Mahindra v. Union of India and Others (AIR 1979 S.C. 798) had the occasion to interpret the words "as far as may". According to their lordships, the words "as far as may" are to be invoked only to the extent they are applicable. 19. In this case, as we have discussed above, the provisions of the Central Excises and Salt Act, 1944 and the rules made thereunder regarding levy, collection, refund and exemption of duties are applicable to the Produce Cess Act, 1966. When there is no provision under the Produce Cess Act, 1966 to give redress to aggrieved party regarding the matter of refund, naturally the provisions of the Central Excises and Salt Act, 1944 which have been made applicable under Section 15(2) of the said Act are to be invoked. The words "so far as may be" occurring in Section 15(2) of the Produce Cess Act, 1966 shatters the entire case of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the same subject matter or forming part of the same system. The Produce Cess Act, 1966 is not an exhaustive Act inasmuch as imposition of cess under this Act is levied and collected as a customs duty or as an excise duty and that is why in certain matters that is, in relation to the levy and collection of duties of customs or excise including refunds and exemptions from duty, the provisions of the Customs Act, 1962 and the Central Excises and Salt Act, 1944 and the rules made thereunder have been made applicable. These two enactments are pari materia and, therefore both these statutes must be read together in a harmonious way. It is not a case where the provisions of the Central Excises and Salt Act, 1944 or the provisions of the Customs Act, 1962 have been bodily lifted and put in the later Act, that is, Produce Cess Act, 1966. It is the case where the provisions of the earlier Acts like Customs Act and Central Excises and Salt Act, 1944 have been made available for certain purposes. 21. In view of our discussion above, we find no force in this primary objection raised by the learned counsel of the appellants and reject the same. 22. [Order per : assent by G. Sank....
X X X X Extracts X X X X
X X X X Extracts X X X X
....p;        * (d) for the purpose of taxation have the powers which a municipal corporation or a municipal council has, as the case may be, under the Madhya Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956) or the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961) -". Construing this provision, the Supreme Court observed in para 16 (page 703 of the report) as follows "The Act of 1973 did not by Section 69(d) incorporate in its true signification any particular provision of the two earlier Acts. It provides that for purpose of taxation the Special Area Development Authority shall have the powers which a Municipal Corporation or a Municipal Council has under the Madhya Pradesh Municipal Corporation Act, 1956 or the Madhya Pradesh Municipalities Act, 1961. The case, therefore, is not one of incorporation but of mere reference to the powers conferred by the earlier Acts." 25. Similarly, in Section 15(2) of the Produce Cess Act, there is no reference to any particular provision or provisions of the Central Excises and Salt Act. The reference to the Central Excises and Salt Act is in a general way and is obviously int....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bout by the Finance (2) Act of 1980 (given effect to from 11-10-1982), are to be held to apply even now to proceedings by way of appeals and further proceedings (except proceedings under Section 10 of the Produce Cess Act), the result would be that so far as appeals are concerned, they will have to be preferred to the Appellate Collectors of Central Excise though, subsequent to the amendments, with effect from 11-10-1982, of the Central Excises and Salt Act, the institution of Appellate Collector of Central Excise has been abolished and, in its place, the institution of Collector of Central Excise (Appeals) has been set up. Therefore, unless the amendments in the Central Excises and Salt Act are imported into Produce Cess Act also, the provisions regarding appeals and further proceedings (except under Section 10) would be wholly unworkable and ineffectual. Applying the ratio of the Supreme Court decision, it has to be held that even if the provisions in Section 15(2) of the Produce Cess Act are to be construed as an instance of legislation by incorporation, the amendments to the provisions of the Central Excises and Salt Act would have to be deemed to apply to appeals and further p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is to be found in sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Act No. 58 of 1957) and sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (Central Act, No. 40 of 1978). These and similar provisions in other enactments do not have their own scheme of appeals and related proceedings in contrast to the Produce Cess Act. It is, therefore, reasonable to conclude that appeals and related proceedings in respect of matters arising out of such enactments would be governed by the relative provisions in the Central Excises and Salt Act as they stand from time to time. Any contrary view would mean a vacuum in respect of appeals and related proceedings in respect of orders passed under those enactments, in so far as the period subsequent to the constitution of this Tribunal, is concerned when the pre-existing provisions relating to appeals and related proceedings under the Central Excises and Salt Act were deleted and replaced by a fresh set of provisions. Surely, such could not be the intention of the legislature. 28. It was urged before us that the new provisions incorpor....