Fibres Ltd Vs. Commissioner of Central Excise, Mumbai-Iii  Insc 1148 (15 November 2007)
Sinha & Dalveer Bhandari
APPEAL NO.1950 OF 2006 S.B. Sinha, J.
Interpretation of a Circular dated 24.09.1992, which was published on
15.10.1992 in the Trade Circular by the Central Board of Excise and Customs, is
in question in this appeal which arises out of a judgment and order dated
9.8.2005 passed by the Central Excise and Service Tax Appellate Tribunal in
Appeal No. E/3137/99 (Mumbai) and E/CO/389/99 (Mumbai), whereby and whereunder
an appeal preferred by the respondent herein from a judgment and order dated
30th June, 1999 passed by the Commissioner of Central Excise (Appeals), Mumbai,
basic fact of the matter is not in dispute. The appellant herein manufacture
HDPE bags. They used to classify the said bags for the purpose of payment of
excise duty under Chapter 63 of the Central Excise Tariff Act (hereinafter
referred as 'the Act'). The period for which the excise duty was payable is
1.4.1992 to 15.10.1992.
duty was paid accordingly. It is also not in dispute that different High Courts
took different views as to whether the duty is payable under Chapter Heading
63.54 or Chapter heading 39 of the Act.
is furthermore not in dispute that a Division Bench of the High Court of Madhya
Pradesh in Raj Pack Well Ltd. vs. Union of India, [1990 (50) ELT 201], took the
view that the HDPE bags should be classified under Chapter heading 39 of the
Central Excise Tariff Act, 1985 and not under Chapter heading 63 thereof.
Indisputably, again the Central Board of Excise and Customs upon noticing that
the appeal against the aforesaid decision of the Division Bench of the High
Court is pending before this Court for final decision, issued a circular on
24.9.1992, the relevant portion whereof is as under:
therefore, in exercise of the powers conferred under Section 37-B of the
Central Excises and Salt Act, 1944 (1 of 1944) (henceforth referred to as the
Act) and for the purpose of ensuring uniformity in the classification of the
said goods, the Central Board of Excise and Customs hereby orders that HDPE
strips and tapes of a width not exceeding 5 mm shall be henceforth classified
under sub- heading 3920.32 and sacks made therefrom under sub-heading 3923.90
of the Tariff."
Relying on or on the basis of the said circular letter, a show cause notice was
issued upon the appellants herein by the respondents to pay the differential duty
under Chapter 39 for the period 1.4.1992 to 15.10.1992.
cause having been shown, the Assistant Commissioner of Central Excise by an
order dated 21.10.1997 dropped the proceedings. Revenue being not satisfied
therewith preferred an appeal thereagainst before the Commissioner of Central
Excise under Section 35E(4) of the Central Excise and Salt Act, 1944. By a
judgment and order dated 30th
June, 1999 the said
appeal was dismissed. Feeling aggrieved, Revenue preferred an appeal before the
Tribunal which, as noticed hereinbefore, has been allowed by reason of the
Tribunal in its judgment relied upon a three-Judge Bench decision of this Court
in ITW Signode India Ltd. vs. Collector of Central Excise, [2003 (158) E.L.T.
403 (SC)] for arriving at its decision that in view of the amendment of Section
11A of the Central Excise Act, the validity whereof had been upheld, the
revenue was within its jurisdiction to get the differential duty which has not
Madhav Rao, learned counsel appearing on behalf of the appellant would, in
support of its appeal, submit that the Tribunal went wrong in passing the
impugned judgment in so far as it failed to take into consideration a decision
of this Court in H.M. Bags Manufacturer vs. Collector of Central Excise, [1997
(94) E.L.T. 3 (SC)], in its correct perspective, wherein it has clearly been
opined that the word "henceforth" used by the Board must lead to the
conclusion that only prospective effect thereto could be given and not a
Padia, learned senior counsel appearing on behalf of the revenue, on the other
hand, placed strong reliance on the judgment of this Court in ITW Signode India
Ltd. (supra). It was submitted by Dr. Padia that although at one point of time,
classification of excisable items might have been approved but if such approval
was based on a wrong premise, which was sought to be corrected, Section 11A
which has been amended with retrospective effect from 17.11.1980, could be brought
into service for the purpose of recovery of the differential amount of duty. It
was urged that for the said purpose, neither penalty is leviable nor the period
for which the duty can be demanded exceeded six months and in view of the fact
that the notice issued by the appellant herein was for a period of six months,
the decision of this Court ITW Signode (supra) is squarely applicable.
Drawing our attention to the decision of the Madhya Pradesh High Court;
on or on the basis whereof, the Circular letter dated 24.10.1992 has been
issued, it was contended that the validity of the said circular letter having
not been challenged by reason thereof, the mistake committed by the revenue in
classifying HDPE bags under Chapter heading 63 came to be known to them in
terms of the said judgment.
is beyond any pale of doubt that Section 11A of the Central Excise Act was
amended having regard to the Constitution Bench decision of this Court in
Collector of Central Excise, Baroda vs. Cotspun Limited, [1999 (113) E.L.T. 353
(SC)]. Amendment of Section 11A was found in ITW Signode (supra) as a
validating legislation, retrospective operation whereof, therefore, was held to
be permissible. In arriving at the said decision, this Court noticed a large number
of binding precedents operating in the field to hold that as the basis for the
decision rendered in Cotspun Limited (supra) has been taken away by reason
thereof, the Parliament was entitled to give the same retrospective effect and
retroactive operation. While applying the said law, this Court in ITW Signode
11A deals with a case when inter alia excise duty has been levied or has been,
short-levied or short-paid. The word 'such' occurring after the words 'whether
or not' refers to non-levy, non- payment, short-levy or short-payment or
erroneous refund. It is, therefore, not correct to contend that the word 'such'
indicates only such short levy which has been held to be non-existent in Cotspun
having regard to Rule 173B. Such short-levy or non-levy may be on the basis of
any approval, acceptance or assessment relating to the rate of duty on or
valuation of excisable goods. Thus, any approval made in terms of Rule 10, in
the event, any mistake therein is detected, would also come within the purview
of the expression 'such short-levy or short-payment'. Such notice is to be
served on the person chargeable with the duty which inter alia has been
short-levy or short-paid."
(supra) was decided when the matters relating to classification, approval
thereof as also short-levy or upon detection of a mistake were governed by the
rules. Rule 10 and Rule 173B were to be read in conjunction with each other and
the Constitution bench merely followed the said principle of interpretation of
different situation has arisen now having regard to the fact hat not only the
substantive provision dealing with the consequence of non-levy, non-payment of
short levy or short-payment or erroneous refund but also has laid down the
statute, it is trite, must be read as a whole. The plenary power of legislation
of the Parliament or the State Legislature in relation to the legislative
fields specified under Seventh Schedule of the Constitution of India is not
disputed. A statutory act may be enacted prospectively or retrospectively. A
retrospective effect indisputably can be given in case of curative and
validating statute. In fact curative statutes by their very nature are intended
to operate upon and affect past transaction having regard to the fact that they
operate on conditions already existing. However, the scope of the Validating
Act may vary from case to case."
However, we are concerned with a different situation herein. Whereas there cannot
be any doubt that the revenue is entitled to rectify a mistake but
implementation thereof would depend upon the statutory provisions. Section 37B
of the Central Excise Act confers powers upon the Central Board of Excise and
Customs to issue such orders, instructions and directions as the Central Excise
Officers may deem fit, if it considers necessary or expedient to do so for the
purpose of uniformity of classification of goods in a case or with levies of
duty of excise on such goods. It was, therefore, necessary for the Tribunal to
construe the said circular dated 24.9.1992 in its proper perspective.
The circular refers to the fact that there had been lack of uniform
classification of the said goods as a result whereof disparity existed in the matter
of pricing of commodity by the manufacturer. It is on the aforementioned
premise that the decision of the High Court of Madhya Pradesh was referred to
and sought to be acted upon. But the Court was not unmindful of the fact that
only by reason of the said judgment, the law cannot be said to have been
settled as an appeal had been preferred thereagainst the judgment of the Madhya
Pradesh High Court had been pending decision. It was in the aforementioned fact
situation that the Board thought it fit and expedient in the interest of
administration of taxing statute to bring out uniformity in the assessment
reason of the said circular, proper classification was made for the first time.
It was done with the purpose of ensuring uniformity therein. It was expressly
directed to have prospective application. Although the decision of the Orissa
High Court was the basis for issuance of the said circular, it was to operate
independent thereof as it was clearly noticed that the same had not attained
finality. The said circular, so far as the Revenue is concerned, was,
therefore, to operate irrespective of the decision of the Orissa High Court.
Having said so, the Board was not unmindful of the consequences which may flow therefrom.
It in exercise of its statutory power, therefore, directed its application from
a future date.
H.M. Bags Manufacturer (supra) becomes relevant in view of the terminology used
by the Board in issuing the aforementioned circular. Therein this Court clearly
held that such a circular will have prospective effect, particularly when the
word "henceforth" has been used by the Board. H.M. Bags Manufacturer,
therefore, is a binding precedent. If the Board itself did not intend to
classify HDPE bags with retrospective effect, in our opinion, no demand for
duty prior to issuance of the said notice could be made.
ITW Signode which was rendered in a different fact situation and dod not deal
with the proposition of law with which we are concerned herein, in our
considered view, could not have been applied by the Tribunal for the purpose of
determining the issue in question.
For the reasons aforementioned, we are of the opinion that the impugned
judgment cannot be sustained which is set aside accordingly. The appeal is allowed.
in the facts and circumstances of this case, there shall be no order as to