TaxTMI 
TaxTMI 
2026 (2) TMI 969
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....rit petitioner is a Central Government undertaking. It is one of the Navaratnas. It is a producer of lignite and peat. Section 83 of the Finance Act, 2010 provided for levy of "Clean Environment Cess" (CEC) on certain goods for the purpose of financing and promoting clean environment and energy initiatives, funding research in that area and for related purposes. Chapter VII of the said Act dealing with CEC is as follows : "Clean Environment Cess 83. (1) This Chapter extends to the whole of India. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. (3) There shall be levied and collected in accordance with the provisions of this Chapter....
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....lating to offences and appeals shall, with such modifications and alterations as it may consider necessary, be applicable in respect of cess levied under sub-section (3). Power of Central Government to make rules. 84. (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Chapter. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for - (a) the manner of assessment, collection and utilisation of the cess under sub-section (6) of section 82; (b) any other matter relating to the cess under subsection (6) of section 82. (3) Every rule made and every notification issued....
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....l Excise Act, 1944 (1 of 1944) relating to the matters specified therein, shall be applicable in regard to like matters in respect of cess imposed under section 83 of the said Finance Act, namely:- Sections 5A, 6, 9, 9A, 9AA, 9C, 9D, 9E, 11, 11A, 11AA, 11AB, 11AC, 11B, 11BB, 11C, 11D, 11DD, 11DDA, 12A, 12B, 12C and 12D; Chapters III, VI, VIA and VIB. [Notification No. 2/2010-Clean Energy Cess, dated 22-6-2010]" 4.The petitioner is particularly aggrieved by the application of Section 11A of the Central Excise Act, 1944 for recovery of Clean Environment Cess. The challenge raised in this writ petition has ceased to be relevant post introduction of GST regime. However, the issue is very much alive in respect of the pre-GST period i....
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....ion 83 which confers the power to issue notification is silent on assessment and collection of the Cess. * Collection is nothing but recovery. Therefore, Section 11A can be made applicable to recovery of Cess only through rules issued under Section 84 of the Act and not by way of notification issued under sub-section 7 of Section 83. In support of his contentions, the learned counsel relied on a catena of case-laws. 5.Per contra, the learned Additional Solicitor General pointed out that the rule-making power as well as the power to notify have both been conferred only on the Central Government. He submitted that the tracing of the power to Section 83(7) or 84 of the Act amounts to making distinction without difference. He cal....
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....ce Act, 2010, certain provisions of the Central Excise Act, 1944 could have been made applicable to assessment and recovery of CEC. It is true that the expression "assessment and collection" are mentioned in Section 83(6) and Section 84(2)(a) of the Act but they are conspicuously absent in Section 83(7) of the Act. Section 83(7) talks about "levy" alone. We hold that the expression "levy" occurring in Section 83(7) of the Finance Act, 2010 would encompass the manner of assessment and collection also. The Hon'ble Supreme Court in CCE v. National Tobacco Company (1972) 2 SCC 560 held that the expression "levy" has a wider connotation. It includes both the imposition of tax as well as assessment. In Rai Ram Krishna v. State of Bihar (1963 ....
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....n the Principles of Administrative Law). Therefore, the lawmakers invariably couch the empowering provision in rather wide terms. Otherwise, the rule may be assailed on the ground that it is beyond the scope of the rule makers' authority. On the other hand, if the legislature had decided to employ the device of incorporation by reference, there is no need for elaboration. In Raja Ram Pal v. Lok Sabha (2007) 3 SCC 184, it was observed that the legislative device of incorporation by reference is a well known device where the legislature, instead of repeating the provisions of a particular statute in another statute, incorporates such provisions in the latter statute by reference to the earlier statute. It is adopted for the sake of conven....