TaxTMI 
TaxTMI 
2019 (10) TMI 680
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....in Form - I and Form - II as required under Rule 6 of the Chewing Tobacco Rules and depositing duty in cash as well as from cenvat credit account. Since the final products viz Zarda Scented Tobacco packed in pouches was liable for duty, they were availing cenvat credit of duty paid on Zarda Scented Tobacco purchased in bulk and was utilising the said credit for duty paid on Zarda scented tobacco cleared by them in pouches which was also disclosed by them in Form - II. Initially the capacity determination rules were applicable to Branded/ unbranded tobacco packed in pouches and w.e.f. 13.04.2010 by virtue of notification no. 17/2010 - CE (NT) dt. 13.04.2010 the same was made applicable to Zarda Scented Tobacco. The Appellant vide letter dt. 16.08.2010 were informed by the Range Superintendent that Rule 16 do not provide for taking cenvat credit in case of scented Zarda Tobacco. The Appellant filed reply that they had availed cenvat credit under genuine belief that credit is available as final product is dutiable and the amendment of Rule 16 left to be amended by the govt. inadvertently. The Appellant also made representation to the Commissioner for amending the Rule 16 of Chewing To....
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....Tobacco rules were amended. The legislative interest was to allow the cenvat. When the Chewing Tobacco rules were made applicable to Zarda scented Tobacco, the Rule 16 inadvertently remained to be amended and the said omission was corrected subsequently. That vide notification no. 17/2010 - CE (NT) dt. 13.04.2010 the Zarda scented tobacco was notified manufactured with aid of packing machine and packed in pouches also under section 3A of the Act. Consequently, the chewing tobacco and unmanufactured tobacco packing machine (Capacity Determination and Collection of Duty) rule 201 were amended vide Notification No. 18/2010 - CE (NT) dt. 13.04.2010 making the said rules applicable to Zarda scented tobacco also. It cannot be intention of the government to levy duty on zarda scented tobacco in bulk and then again on packed in pouches. He submits that the substitution of Rule 16 is retrospective in effect since on the representation of Appellant the Rule 16 was amended. The law maker has remedied the mistake and has made explicit what was implicit that the cenvat credit would be available on bulk Zarda Scented Tobacco used in pouch packed Zarda Scented Tobacco. He relies upon the Apex Cou....
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....o also. The chewing tobacco rules provided for availment of cenvat credit on chewing tobacco procured in bulk and used in packing of Tobacco pouches with the aid of packaging machines. When the Chewing Tobacco and Unmanufactured Tobacco Packaging Machines (Capacity Determination & Collection of Duty) Rules also become applicable to Zarda scented tobacco, it was just obvious that the Zarda scented tobacco came at par with chewing tobacco in terms of levy of duty as well as availment of cenvat credit. The Appellant availed credit of duty paid on bulk on Zarda Scented Tobacco just like chewing tobacco and discharged duty on pouches manufactured from Bulk Zarda Scented Tobacco. The Appellant's representation to the authorities led to explicit mention of Zarda Scented Tobacco in Rule 16 so as to make it eligible for availing cenvat credit. In our view when the Chewing tobacco rules were made applicable to the Zarda Scented Tobacco, it explicitly meant that whatever duty liability and manner of levy alongwith facility of credit was applicable on chewing tobacco was also applicable to Zarda scented tobacco. Pertinently when the legislation wanted to keep Zarda scented tobacco in same cate....
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....ay as to incorporate itself or a part of itself into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that there is no need to refer to the amending Act at all." 10. Yet another Constitution Bench of the Hon'ble Supreme Court in the case of Shyam Sunder & Others v. Ram Kumar & Another reported in AIR 2001 SC page 2472, while dealing with the question whether a substituted provision necessarily means the amended provision is retrospective in nature has held as under : "A substituted section in an Act is the product of an amending Act and all the effects and consequences that follow in the case of an amending Act the same would also follow in the case of a substituted section in an Act." 11. In fact,, the Division Bench of this Court in the case of SHA Chunnilal Sohanraj v. T. Gurushantappa reported in 1972 (1) MYS. L.J. PAGE 327 DB has held as under : "When an amending Act has stated that the old sub-section has been substituted by the new sub-section the inferenc....
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...., notwithstanding anything inconsistent therein with the provision of the Special Economic Zones Act, 2005. This section therefore overreaches and eclipses the provisions of any other law containing provisions contrary to the SEZ Act, 2005. Though the definition of the word "export" in the SEZ Act, in Sec. 2(m) included supply of goods to a "Unit" or "Developer", in clause (i) of sub-rule (6) of Rule 6 of the Cenvat Credit Rules, 2004 the word "Developer" was conspicuously missing and only "unit" was included before the 2008 amendment. It is in that context the aforesaid amendment by Notification No. 50/2008 C.E. (N.T), dated 31-12-2008 was brought in, to clarify the doubt. As the said amendment is clarificatory in nature, that is the reason why it was brought by way of "substitution". The effect of the said "substitution" is that the Cenvat Rules 2004 are to be read and construed as if the altered words had been written into the Rules of 2004 with pen and ink and the words "to a developer of the SEZ for their authorized operation" was there from the inception. This is the understanding of the Government as is also clear from the circular issued by the C.B.E.&C. bearing No. 29/2006....