TaxTMI 
TaxTMI 
2020 (12) TMI 316
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.... Or in the alternative (d) Declaring continued existence/non-deletion of SKO from the Fourth Schedule of Central Excise Tariff Act, 1944, after 1.7.17, to be violative of section 174 of Central Goods and Service Tax 2017 and also violative of Entry No.84 of List - I (Union List) of the Seventh Schedule to Constitution of India, which has been amended by the Constitution (One Hundred and First) Amendment Act, 2016." 3. This writ petition was heard at length on 20.11.2020 and the submissions made by learned counsels for the parties were noted. Submission on behalf of the petitioner 4. Learned counsel for the petitioner has submitted as under :- (i) A show cause notice dated 17.10.2007 under the Central Excise Act, 1944 was issued to the petitioner for excise duty of Rs. 2,96,99,001/- not paid for the period from 01.11.2002 to 31.03.2005. Penalty was also sought to be imposed under Section 11-A of the Central Excise Act 1944 read with Rule 25 of the Central Excise Rules, 2002. (ii) A scheme known as "Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019" was enacted by Finance (No.2) Act, 2019. Section 124 of the Finance Act, 2019 provides ....
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.... existence of SKO (Super Kerosene Oil) in the 4th Schedule to the Central Excise Act showing rate of duty as nil, can not be continued under the Central Excise Tariff Act. Submission on behalf of the respondents 5. Sri Gaurav Mahajan, learned counsel for the respondent nos. 2 & 3 supports the action of the respondents and the impugned order. He further submits that proper procedure was followed before rejecting the application of the petitioner. 6. Sri Gaurav Mahajan, further submits that SKO continues to be an excisable goods falling under the 4th Schedule of the Central Excise Act. Facts 7. Briefly stated facts of the present case are that the petitioner is engaged in the manufacturing and clearance of various petroleum products falling under Chapter 27 of the Central Excise Tariff Act, 1985 (hereinafter referred to as "the Tariff Act"). During the period 01.11.2002 to 31.03.2005 petitioner paid Central Excise duty on the basis of Central Excise invoice in which value was shown much lower than actual price recovered by the petitioner from the buyers as per the commercial invoices in respect of Superior Kerosene Oil (SKO). Consequently, a show cause notice dated ....
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....d communication dated 26.02.2020 to the petitioner with the remarks as under :- "As per Section 125 (h) of the Finance (No.2) Act, 2019, the product i.e. SKO is set forth in the Fourth Schedule of Central Excise Tariff Act, 1944, therefore, the application to avail benefits of SVLDRS Scheme can not be accepted" . 10. Aggrieved with the aforesaid communication, the petitioner has filed the present writ petition. Discussion and Findings 11. By the constitution (One Hundred and First Amendment) Act 2016, dated 08.09.2016, Article 246-A was inserted providing for Special Provision with respect to goods and service Tax. By Section 17 of same Amendment Act, the 7th Schedule to the Constitution was amended by substituting in list -1 - Union List, the entry 84 as under :- Entry 84 of List - 1 - Union List 12. Duties of excise on the following goods manufactured or produced in India, namely :- "(a) Petroleum Crude; (b) High Speed Diesel; (c) Motor Spirit (commonly known as petrol); (d) natural gas (e) aviation turbine fuel; and (f) tobacco and tobacco products." 13. In K.C. Sachdeva Vs. State 1976 Cri.L.J. 1208(para 4) learned Single Judge has observed that ....
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....eir production or manufacture on his own account." 16. Section 3 of the Act, 1944 as amended by Act 18 of 2017 is the charging Section. It provides for leavy and collection of duty of excise to be called Central Value Added Tax (CENVAT) on all excisable goods which are produced or manufactured in India, at the rates set forth in the Fourth Schedule. Sub-Section 3 of Section 3 empowers the Central Government to provide by Notification rates of duty and tariff values with respect to the articles enumerated in the Fourth Schedule. Thus, all the items which are enumerated in the Fourth Schedule are excisable goods in terms of the provisions of Section 2(d), read with Section 2(f) and are liable to duty at the notified rates under the charging Section 3 of the Act. 17. "Manufacture" is the taxable event under the Central Excise Act, 1944 while under Section 9 of the CGST Act/UPGST Act, the event of taxation is the supply of goods or services except the supply of alcoholic liquor for human consumption. Sub-Section 2 of Section 9 of the CGST Act/UPGST Act empowers to levy tax on supply of petroleum crude, high speed diesel oil, motor spirit, natural gas and aviation turbine fuel sha....
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....eviable in the absence of rate of duty. It does not mean that such goods are not excisable. All the goods mentioned in Fourth Schedule to the Act, 1944 shall continue to be excisable goods unless the goods is removed from the Schedule by an amendment. Section 174 of the CGST Act has not repealed the Central Excise Act, 1944 as respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution. The Central Excise Act, 1944 as amended by Act 18 of 2017 has been enacted with respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution which includes S.K.O. 22. The petitioner has sought the relief No. (c) and (d) to delete SKO from the Fourth Schedule of Central Excise Tariff Act, 1944. There is no such Act. The relief sought is without substance. Apart from this, inclusion of SKO in the Fourth Schedule of the Act, 1944 is not violative of Section 174 of the CGST Act, 2017, for detailed reasons given in the foregoing paragraphs. 23. "Sabka Vishwas Scheme" is a complete code in itself. An earlier scheme known as "Kar Vivad Samadhan" scheme was considered by Hon'ble Supreme Court in the case of Unio....