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American Spring and Pressing Works Ltd. Vs. S.L. Wadkar and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Petition No. 1303 of 1978
Judge
Reported in1992(39)LC332(Bombay)
AppellantAmerican Spring and Pressing Works Ltd.
RespondentS.L. Wadkar and ors.
Excerpt:
exemption - agricultural implements--parts of non-power operated implements not entitled to exemption up to 3.2.1978. notfn. 55/75-ce. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the..........woodcrs, wheel hoes, seed drills etc. the implements manufactured by the petitioners are power operated as well as non-power operated.3. in this petition we are concerned with the question whether under the residuary item 68 of the first schedule to the excise act the petitioners are liable to pay the rate of duty prescribed in the said item on parts of agricultural implements manufactured by them which are not operated by power. the petitioners have set out the provisions of item 68 in paragraph 3 of the petition. the operative words read as under:all other goods, not elsewhere specified, manufactured in a factory but excluding-4. on 30lh april, 1975 notification no. 114/75-ce was issued for insertion in the schedule annexed to an earlier notification certain items of which.....
Judgment:

Desai, J.

1. The petitioners before this Court are a public limited company duly incorporated under the Companies Act, 1956 having their registered office at Adarsh Housing Society Road, Post Box No. 7602, Malad, Bombay-64. The respondents 1 and 2 are various authorities under the Central Excises and Salt Act, 1944. Respondent 3 to the petition is the Union of India.

2. The petitioners manufacture various sprayers and dusters for spraying pesticides and chemicals on crops. They also manufacture other agricultural implements like threshers, woodcrs, wheel hoes, seed drills etc. The implements manufactured by the petitioners are power operated as well as non-power operated.

3. In this petition we are concerned with the question whether under the residuary Item 68 of the First Schedule to the Excise Act the petitioners are liable to pay the rate of duty prescribed in the said Item on parts of agricultural implements manufactured by them which are not operated by power. The petitioners have set out the provisions of Item 68 in paragraph 3 of the petition. The operative words read as under:

All other goods, not elsewhere specified, manufactured in a factory but excluding-

4. On 30lh April, 1975 notification No. 114/75-CE was issued for insertion in the Schedule annexed to an earlier notification certain items of which Item 11 is material. The said Item 11 read as follows:

Agricultural implements but excluding-

(i) power operated agricultural implements; and

(ii) implements designed for use as attachments with tractors or power tillers.

5. Broadly speaking, after this notification, agricultural implements but subject to the two exceptions specified were excluded from the purview of Tariff Item No. 68. The exclusions were power operated agricultural implements and implements designed for use as attachments with tractors or power tillers. The latter two types of agricultural implements would thus still remain within the purview of Item 68 being excluded from the exclusion.

6. We are concerned with parts of agricultural implements which are not parts of power operated agricultural implements.

7. Excise duly is leviable when the items manufactured are removed outside the factory. If alter 30ih April, 1975 an agricultural implement was being manufactured and sought to be removed it would he outside the purview of Item 6K if it was not power operated. The question, however, is whether the same benefit of exclusion from duty would be available to a part of such an implement.

8. As a matter of interest it may be stated that on 3rd February, 1978 notification No. 23/78 was issued by which the said Item 11 was substituted as follows:

11. Agricultural implements and parts thereof but excluding:

(i) power operated agricultural implements and parts thereof, and

(ii) implements designed for use as attachments with tractors or power tillers and parts thereof.

The position after 3rd February, 1978 was thus clear. Agricultural implements as well as parts thereof subject to the two exclusions were taken out of the purview of Item 68. The question is what was the position concerning parts of non-power operated agricultural implements for the period 30.4.1975 up to 3.2.1978. This is the period for which we are concerned in the present petition.

9. In other words, does the whole by necessary implication include a part?

10. Mr. Gumastc appearing for the petitioners drew my attention to various items in the First Schedule where there is specific provision for levying excise duty on certain items as well as parts. For example, Item 33A of the First Schedule provides for excise duly on wireless receiving sets of all sorts whereas Item 33AA provides for excise duly on pans of wireless receiving sets. Under 33A ad valorem duly is leviable whereas under 33AA there was a fixed excise duty of Rs. 5/- on each part. Similarly, we have Items 34 and 34A which provide for rates of excise duty leviable on motor vehicles (Item 34) and parts and accessories of motor vehicles (Item 34A). As far as these two items are concerned, the rates are both ad valorem but were not identical.

11. Thus it is dear that parts of items have not been Considered to be automatically within the purview of the item itself. What must apply to levy must equally apply to an exclusion or exemption. If this be the correct approach then in 1975 agricultural implements non-power operated) were taken out of the purview of the residuary Item 68 but parts of such agricultural implements would remain within the purview since they were not specifically provided for. Indeed, if Item 10 introduced by notification 114175 is perused it is clear that the notifying authority warred ware of the difference between an item and pans thereof.

12. It is only when the fresh notification of 3rd February, 197S was issued and became effective that parts of agricultural implements would be taken out of the purview of Item 68 provided they were not power operated or implements designed for use as attachments with tractors or power tillers. Such parts then would be within the purview and impact of Item 68 and attract the rate of excise duty specified from time to time for this item till 3rd February, 1978 notification was issued and brought into effect.

13. Mr. Gumastc very faintly urged that the parts of an item cannot he considered to be within Item 68 itself. It is difficult to accept any such submission. If these parts can be designated as manufactured goods then unless they were provided for elsewhere specifically in the Schedule or in the Act they would fall within the ambit of this Item.

14. The orders of respondents Nos. 1 and 2 which are impugned in the writ petition have proceeded on the footing that till the second notification of 3rd February, 1978 parts of agricultural implements were chargeable to the rates of excise duty specified by Hem 68. In my view, the view taken by these authorities is in accordance with the provisions of the Act and the Schedules thereof as amended from lime to time. If that he so, the challenge to these orders must fail and the Rule granted ought to be ordered to stand discharged.

15. In the result, the Rule granted will stand discharged. Slay to stand vacated subject to what is hereinafter provided. The petitioners will pay costs to the respondents in a single set at the usual rate.

16. At the time of admitting this petition stay was granted on condition that a bank guarantee is furnished by the petitioners in the amount of Rs. 61, 836.76.1 presume that the said bank guarantee has remained in force till today. I direct the petitioners to pay the amount covered by the guarantee to the excise authorities on or before 19th February, 1982. If payment is effected and the solicitors to the respondents confirm such payment then the bank guarantee is to be returned to the petitioners for being cancelled. This, however, to be done only on necessary letter being written on that behalf by the respondents' solicitors. If no such letter is received by the Prothonotary by 39th February, 1982, the Prothonotary to call upon the bank to make payment of the amount under the guarantee and on receipt of such amount the same is ordered to be paid over to respondent No. 3 towards the claim of the excise authorities against the petitioners. In case there is any difficulty in realising the amount miff the bank guarantee then from and after 3hl March, 1982 the respondents will be is puberty to take all available and permissible steps against the petitioners for recovery of the amount in respect of which slay was granted. On such recovery the Prothonotary to have the bank guarantee cancelled. Prothonotary to act on the minutes.


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