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German Remedies Limited Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1987)(11)ECC150
AppellantGerman Remedies Limited
RespondentCollector of Central Excise
Excerpt:
.....the learned sr. advocate, has appeared on behalf of the appellants, he has reiterated the facts. shri engineer, the learned advocate has pleaded that the appellant is a manufacturer of patent and proprietory medicines and the goods fail under tariff item no. 14e of the central excise tariff. he has referred to the notification no. 117/66 dated 16-7-1966 as amended from time to time and notification no. 161/66-ce dated 8-10-1966. shri engineer has pleaded that the appellant is entitled to the benefit of both the notifications. both the notifications are independent of each other and not inter-connected and the subsequent notification does not carry any proviso. he has referred to a judgment of the tribunal in the case of indye chemicals, ahmedabad v. collector of central excise,.....
Judgment:
1. German Remedies Limited, Bombay has filed two appeals being aggrieved from order in appeal No. A-53-54/B1-6-7/83 dated 28-1-1983 passed by Collector of Central Excise (Appeals), Bombay. Since both the appeals emerge from the same order, the same are being disposed of by a consolidated order.

2. The facts of both the appeals are similar. The appellants cleared their products falling under Tariff Item 14E at maximum retail price and supplied at tender rate to the Government Department thereby paid less duty than the actual amount of duty payable by them during the period from March 1979 to September 1979. Therefore, the concerned Range Superintendent issued a show cause cum demand notice for the differential duty of Rs. 24,009.89 to the appellant. In reply to the show cause notice the appellant had stated that the goods in question had been cleared at their M.R.P. less 20% being their option under Notification No. 161/66-CE dated 8-10-1966 as amended from time to time; and it was their option whether to clear the goods for supply to Government at contract/tender rates or at M.R.P. under the said Notification. It was also stated by the appellant that they could not supply goods to the Government on the price higher than the M.R.P.which was fixed by the Government of India, Ministry of Petroleum, Chemicals & Fertilizers, New Delhi, The contract price was in fact always lower than their M.R.P. For various considerations the contract rate was negotiated with the Government and a certain rate was mutually arrived at which became a fixed price, excise duty included. It was contended before the learned Assistant Collector that Notification Nos.

161/66-CE dated 8-10-1966 and 117/66-CE dated 16-7-1966 were not contradictory and they were free to avail of The exemption under Notification No. 161/66 even in those cases where prices were fixed through contract. Further, it was argued that the tender price was not higher than the maximum retail prices. It was further argued that the appellant did not charge higher price to the Government and cleared the said goods at lower price as stated by the Range Superintendent in the show cause notices in question. The goods had been supplied under tender prices under Notification No. 161/66-CE dated 8-10-1966 and the prices for assessment were according to the tender price. They were entitled to avail of the concession in both the Notification Nos.

161/66-CE dated 8-10-1966 and 117/66-CE dated 16-7-1966. These two notifications were independent and not exclusive of each other. The learned Assistant Collector of Customs observed that the prices quoted were inclusive of Central Excise duty. No separate excise duty had been recovered/shown in the invoices. The demand in question had been issued for P or P medicines cleared as per maximum retail price but actually supplied at Tender rates to the Government Departments. The demand was issued for difference between duty paid on the value arrived as per M.R.P. but duty was payable on the value of Tender price after deducting the Central Excise duty element. He had confirmed the demand for Rs. 24,009.89 under Rule 10 of the Central Excise Rules, 1944. In another order with similar observations he had also confirmed the demand for Rs. 12,058.75. Being aggrieved from the aforesaid order the appellant had filed two appeals to the learned Collector of Central Excise (Appeals), Bombay. The learned Collector had confirmed the findings of the lower authorities but had modified the order to the extent that the duty liability had to be determined keeping in view that the duty has to be levied on the contract price minus the actual duty payable. Being aggrieved from the aforesaid order the appellant has come in appeal before the Tribunal.

3. Shri D.B. Engineer, the learned Sr. Advocate, has appeared on behalf of the appellants, he has reiterated the facts. Shri Engineer, the learned Advocate has pleaded that the appellant is a manufacturer of patent and proprietory medicines and the goods fail under Tariff item No. 14E of the Central Excise Tariff. He has referred to the Notification No. 117/66 dated 16-7-1966 as amended from time to time and Notification No. 161/66-CE dated 8-10-1966. Shri Engineer has pleaded that the appellant is entitled to the benefit of both the notifications. Both the notifications are independent of each other and not inter-connected and the subsequent notification does not carry any proviso. He has referred to a judgment of the Tribunal in the case of Indye Chemicals, Ahmedabad v. Collector of Central Excise, Ahmedabad reported in 1986 (25) ELT 318 where the Tribunal had held that if the exemptions have been granted separately, the benefits thereunder should be available to the assessee separately unless there is any specific provision to the contrary. Also, an interpretation which creates an anomaly of a nature resulting in either of the notifications becoming inoperative or redundant is to be avoided. The Tribunal further held that construed strictly and in accordance with the plain meanings of the words used therein. However, if there is any doubt, the benefit of it must go to the assessee so that the tax burden is lessened. But when there is no scope of any doubt, there hardly arises any question of giving any benefit to the assessee. Shri Engineer has also referred to another judgment of the Hon'ble Supreme Court in the case of Hemraj Gordhandas v. H.H. Dave, AC/CE and Ors. reported in 1978 ELT J 350 where the Hon'ble Supreme Court had held that it is well established that in a taxing statute there is no room for any intend-ment but regard must be had to the clear meaning of the words. If the tax payer is within the plain terms of an exemption he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. In a Court of Law or Equality what the legislature dntended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact either in express words or by reasonable or necessary implication. Shri Engineer has further pleaded that the appellant had opted to avail the benefit of the later Notification No. 161/76-CE dated 8-10-1966and had opted for the 25% discount on the price specified in the price list showing the retail price referred to the said order. Shri Engineer has pleaded that it is a hard case. He has pleaded for the acceptance of the appeal.

4. Shri A.K. Rajhans, the learned JDR, has appeared on behalf of the respondent. He has relied on the orders passed by the lower authorities and has referred to the wording of the Notification No. 161/66-CE dated 8-10-1966. He has laid special emphasis on 2nd proviso to the said notification. He has pleased for the dismissal of the appeal.

5. In reply Shri Engineer has again pleaded for the acceptance of the appeal.

6. We have heard both the sides and have gone through the facts and circumstances of the case. In terms of the Notification No. 161/66-CE, dated 8-10-1966 the Central Government exempts patent or proprietory medicines falling under TI l4E of the First Schedule to the Central Excises and Salt Act, 1944 from so much of the duty of excise leviable thereon as is excess of the duty calculated on the basis of the value arrived after allowing a discount of 25% on the price specified in the price list showing the retail prices referred to in the said order. The appellant had opted to avail the benefit of Notification No. l61/66-CE dated 8-10-1966. The Tribunal in its earlier order in the case of Indye Chemicals, Ahmedabad v. Collector of Central Excise, Ahmedabad reported in 1986(25) E.L.T 318 cited by Shri Engineer, Advocate had held that if the exemptions have been granted separately the benefits thereunder should be available to the assessee separately unless there is any specific provision to the contrary. We have gone through both the exemption notifications. Both the notifications are independent of each other and not inter-connected and in the subsequent notification No.l61/66-CE dated 8-10-1966 there is no proviso that this notification is subject to earlier notification No. 117/ 66-CE dated 16-7-1966. We do not find any reason why the appellant should be denied the benefit of the subsequent notification No. l61/66-CE. The Hon'ble Supreme Court in the case of Hemraj Gordhandas v. H.H. Dave, Assistant Collector of Central Excise and Ors. reported in 1978 E.L.T 3-350 had held that it is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. If the tax payer is within the plain terms of an exemption he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. In a court of Law or Equality what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact either in express words or by reasonable or necessary implication.

7. Keeping in view the above discussion, the judgment of the Hon'ble Supreme Court and earlier judgment of the Tribunal we allow both the appeals. The orders passed by the lower authorities are set aside. The Revenue Authorities are directed to give consequential effect to this order.


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