{"id":203384,"date":"2011-07-06T00:00:00","date_gmt":"2011-07-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commnr-of-central-excise-vs-ms-doaba-steel-rolling-mills-on-6-july-2011"},"modified":"2016-11-21T18:06:08","modified_gmt":"2016-11-21T12:36:08","slug":"commnr-of-central-excise-vs-ms-doaba-steel-rolling-mills-on-6-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commnr-of-central-excise-vs-ms-doaba-steel-rolling-mills-on-6-july-2011","title":{"rendered":"Commnr. Of Central Excise, … vs M\/S. Doaba Steel Rolling Mills on 6 July, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commnr. Of Central Excise, … vs M\/S. Doaba Steel Rolling Mills on 6 July, 2011<\/div>\n
Author: D Jain<\/div>\n
Bench: D.K. Jain, H.L. Dattu<\/div>\n
                                                                    REPORTABLE\n\n                  IN THE SUPREME COURT OF INDIA\n\n\n                   CIVIL APPELLATE JURISDICTION\n\n\n                    CIVIL APPEAL NO. 3400 OF 2003\n\n\n\n\n  COMMISSIONER OF CENTRAL                    --              APPELLANT\n\n  EXCISE, CHANDIGARH\n\n\n\n\n                                VERSUS\n\n\n\n\n  M\/S DOABA STEEL ROLLING MILLS              --            RESPONDENT\n\n\n\n                                  WITH\n\n\n                  CIVIL APPEAL NOS.8342-8344 OF 2004,\n\n\n                    CIVIL APPEAL NO.8345 OF 2004 &\n\n\n                  CIVIL APPEAL NOS.4992-4993 OF 2011\n\n         (ARISING OUT OF S.L.P. (C) NOS.35323-35324 OF 2010)\n\n\n\n\n\n                            J U D G M E N T\n<\/pre>\n
D.K. JAIN, J.:\n<\/p>\n
1. Leave granted in SLP (C) Nos. 35323-35324 of 2010.\n<\/p>\n
                                                                       1<\/span><\/p>\n
2.    This batch of appeals, by grant of leave, arises out of judgements and orders <\/p>\n
      dated   17th  October   2001   in   C.C.E.S.No.4   of   2001,   21st  October,   2003   in <\/p>\n
      C.E.C. 11, 12, 13 of 2003 and C.E.C. No.122 of 2003 passed by the High <\/p>\n
      Court   of   Punjab   &   Haryana;   6th  November   2009   in   Review   application <\/p>\n
      No.29356 of 2008 and 8th July 2010 in C.E. Reference application No.113 of <\/p>\n
      2000   both   passed   by   the   High   Court   of   Judicature   at   Allahabad.   By   the <\/p>\n
      impugned   judgements,   in   the   main   reference   applications,   filed   by   the <\/p>\n
      Commissioner  of Central Excise, under Section  35H of the Central  Excise <\/p>\n
      Act,   1944   (for   short   “the   Act”),   the   questions   referred   by   the   Customs, <\/p>\n
      Excise and Gold (Control) Appellate Tribunal, as it then existed, (for short <\/p>\n
      “the Tribunal”) have been answered in favour of the assessee and the review <\/p>\n
      applications preferred by the Commissioner against the said judgments have <\/p>\n
      been dismissed.\n<\/p>\n
3. Since   all   the   appeals   involve   a   common   question   of   law,   these   are   being <\/p>\n
      disposed   of   by   this   common   judgment.     However,   to   appreciate   the <\/p>\n
      controversy,   the   facts   emerging   from   C.A.No.3400   of   2003   are   being <\/p>\n
      adverted to.  These are as follows :\n<\/p>\n
4.    Section   3A   of   the   Act,   which   has   a   chequered   history   of   insertions   and <\/p>\n
      omissions in the Act, was inserted in the Act for the second time by Act 26 <\/p>\n
                                                                                                2<\/span><\/p>\n
   of   1997,   with   effect   from   14th  May,   1997,   the   provision   relevant   for   the <\/p>\n
   purpose of these appeals. The Section has again been omitted by Act 14 of <\/p>\n
   2001, with effect from 11th  May, 2001.   Section 3A of the Act enables the <\/p>\n
   Central Government to charge Excise duty on goods on the basis of annual <\/p>\n
   capacity of production of mills etc. in respect of the notified goods.\n<\/p>\n
The relevant part of the Section reads as follows:\n<\/p>\n
      “3A.   Power of Central Government to charge excise duty on the <\/p>\n
      basis of capacity of production in respect of notified goods.– (1) <\/p>\n
      Notwithstanding   anything   contained   in   section   3,   where   the   Central <\/p>\n
      Government,   having   regard   to   the   nature   of   the   process   of <\/p>\n
      manufacture   or   production   of   excisable   goods   of   any   specified <\/p>\n
      description, the extent of evasion of duty in regard to such goods or <\/p>\n
      such   other   factors   as   may   be   relevant,   is   of   the   opinion   that   it   is <\/p>\n
      necessary to safeguard the interest of revenue, specify, by notification <\/p>\n
      in the Official Gazette, such goods as notified goods and there shall be <\/p>\n
      levied and collected duty of excise on such goods in accordance with <\/p>\n
      the provisions of this section.\n<\/p><\/blockquote>\n
\n      (2) Where  a notification is  issued under sub-section (1), the Central <\/p>\n
      Government may, by rules,–\n<\/p><\/blockquote>\n
<\/blockquote>\n
      (a)     provide the manner for determination of the annual capacity of <\/p>\n
              production of the factory, in which such goods are produced, by <\/p>\n
              an   officer   not   below   the   rank   of   Assistant   Commissioner   of <\/p>\n
              Central Excise and such annual capacity shall be deemed to be <\/p>\n
              the annual production of such goods by such factory; or<\/p>\n<\/blockquote>\n
      (b)     (i) specify the factor relevant  to the production of such goods <\/p>\n
              and the quantity that is deemed to be produced by use of a unit <\/p>\n
              of such factor; and <\/p>\n
                                                                                                   3<\/span><\/p>\n<\/blockquote>\n
              (ii)   provide   for   the   determination   of   the   annual   capacity   of <\/p>\n
              production of the factory in which such goods are produced on <\/p>\n
              the   basis   of   such   factor   by   an   officer   not   below   the   rank   of <\/p>\n
              Assistant   Commissioner   of   Central   Excise   and   such   annual <\/p>\n
              capacity   of   production   shall   be   deemed   to   be   the   annual <\/p>\n
              production of such goods by such factory:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                      Provided that where a factory producing notified goods is <\/p>\n
              in   operation   during   a   part   of   the   year   only,   the   annual <\/p>\n
              production thereof shall be calculated on proportionate basis of <\/p>\n
              the annual capacity of production:\n<\/p><\/blockquote>\n
<\/blockquote>\n
                      Provided further that in a case where the factor relevant <\/p>\n
              to the production is altered or modified at any time during the <\/p>\n
              year,   the   annual   production   shall   be   re-determined   on   a <\/p>\n
              proportionate   basis   having   regard   to   such   alteration   or <\/p>\n
              modification.\n<\/p><\/blockquote>\n
              ………………………………………………………………….”<\/p>\n<\/blockquote>\n
5. It is clear from a bare reading of the Section that the reason which persuaded <\/p>\n
   the   Legislature   to   introduce   this   provision   was   attributed   to   large   scale <\/p>\n
   evasion of payment of Excise duty by certain sectors.  Thus, the insertion of <\/p>\n
   the Section in the Act was with a view to safeguard the interest of revenue in <\/p>\n
   the sectors, like induction furnaces, steel re-rolling mills etc., where evasion <\/p>\n
   of Excise duty on goods produced in such mills was rampant.  The provision <\/p>\n
   authorises   the   Central   Government   to   notify   certain   goods,   for   levy   and <\/p>\n
   collection of duty of Excise on such goods, in accordance with the provision <\/p>\n
   of the  said  Section,   having regard  to  the  extent  of  evasion  of duty  as  also <\/p>\n
   other relevant factors.   The scheme evolved under this provision, envisages <\/p>\n
                                                                                                  4<\/span><\/p>\n
      the   determination   of   annual   capacity   of   production   of   such   factory   by   an <\/p>\n
      officer not below the rank of Assistant Commissioner  of Central Excise in <\/p>\n
      terms of the rules to be framed by the Central Government under sub-section <\/p>\n
      (2)   of   Section   3A   of   the   Act.     The   annual   capacity   of   production   of   the <\/p>\n
      factory is deemed to be the annual production of such goods by such factory, <\/p>\n
      on which an assessee is liable to pay duty.  The two provisos to sub-section <\/p>\n
      (2) of Section 3A of the Act, provide for determination\/re-determination of <\/p>\n
      annual capacity of production in the event of operation of the factory during <\/p>\n
      a part of the year or alteration or modification in any of the factors relevant <\/p>\n
      to the production of the factory.\n<\/p>\n
6.    In   exercise   of   the   powers   conferred   by   Section   3A(2)   of   the   Act,   by <\/p>\n
      Notification   No.   23\/97-CE   (NT)   dated   25th  July,   1997,   the   Central <\/p>\n
      Government framed and notified Hot Re-rolling Steel Mills Annual Capacity <\/p>\n
      Determination Rules, 1997 (for short “the 1997 Rules”), to be effective from <\/p>\n
      1st  August,   1997,   for   determination   of   annual   capacity   of   production   of   a <\/p>\n
      factory   producing     re-rolled   products   as   contained   in   the   said   notification.\n<\/p>\n
      The Rules prescribed the formulae for determination of the annual capacity <\/p>\n
      of production of a hot re-rolling mill, on the basis of the information to be <\/p>\n
      furnished   by   the   mill   to   the   Commissioner   of   Central   Excise;   on   the <\/p>\n
                                                                                                    5<\/span><\/p>\n
parameters   referred   to   in   Rule   3(3)   of   the   1997   Rules.   The   rate   and   the <\/p>\n
manner   of   payment   of   Excise   duty   under   Section   3A   of   the   Act   was   also <\/p>\n
indicated   in   the   notification.   Subsequently,   another   Notification   No.32\/97-\n<\/p>\n
CE   (NT)   was   issued   on   1st  August,   1997   making   the   said   Rules   effective <\/p>\n
from the even date. For the sake of ready reference, Rules 3 and 4, in so far <\/p>\n
as they are relevant for these appeals, are extracted below:\n<\/p>\n
    “3.   The   annual   capacity   of  production   referred   to   in   rule   2   shall   be <\/p>\n
    determined in the following manner, namely:-<\/p>\n
    (1)     a hot re-rolling mill shall declare the values of `d’ `n’ `I’ and <\/p>\n
            `speed of rolling’, the parameters referred to in sub-rule (3), to <\/p>\n
            the Commissioner of Central Excise (hereinafter referred to as <\/p>\n
            the Commissioner) with a copy to the Assistant Commissioner <\/p>\n
            of Central Excise:\n<\/p><\/blockquote>\n
\n    (2)     on   receipt   of   the   information   referred   to   in   sub-rule   (1),   the <\/p>\n
            Commissioner   shall   take   necessary   action   to   verify   their <\/p>\n
            correctness   and   ascertain   the   correct   value   of   each   of   the <\/p>\n
            parameters.  The Commissioner may, if so desires, consult any <\/p>\n
            technical authority for this purpose;\n<\/p><\/blockquote>\n
\n    (3)     the  annual   capacity  of  production  of  hot  re-rolled   products   of <\/p>\n
            non-alloy steel in respect of such factory shall be deemed to be <\/p>\n
            as determined by applying the following formula :-<\/p>\n
    Annual   Capacity   =1.885   x   10-4  x   d   x   n   x   i   x   e   x   w   x   Number   of <\/p>\n
    utilised hours (in metric tonnes) Where :<\/p><\/blockquote>\n
    d   = Nominal diameter of the finishing mill in millimetres<\/p>\n
    n   = Nominal revolutions per minute (RPM) of the drive<\/p>\n
    i    = Reduction ratio of the gear box<\/p>\n
                                                                                                  6<\/span><\/p>\n
w =Weight in Kilogramme per metre of the re-rolled     product.\n<\/p>\n
value of `e’ in the formula shall be deemed to be 0.30 in case of low <\/p>\n
speed   mills,   and   0.75   in   case   of   high   speed   mills   the   value   of   `w’ <\/p>\n
factor in the formula for the high speed mills shall be deemed to be <\/p>\n
0.45 and for the low speed mills shall be deemed to be as under, –\n<\/p>\n
…………………………………………………………………………\n<\/p>\n
…………………………………………………………………………\n<\/p>\n
4.    the   Commissioner   of   Central   Excise   shall,   as   soon   as   may   be, <\/p>\n
      after   determining   the   total   capacity   of   the   hot   re-rolling   mill <\/p>\n
      installed in the factory as also the annual capacity of production, <\/p>\n
      by an order, intimate to the manufacturer.\n<\/p>\n
Provided that the Commissioner may determine the annual capacity of <\/p>\n
the hot re-rolling unit on provisional basis pending verification of the <\/p>\n
declaration   furnished   by   the   hot   re-rolling   mills   and   pass   an   order <\/p>\n
accordingly.  Thereafter, the Commissioner may determine the annual <\/p>\n
capacity, as soon as may be, and pass an order accordingly.\n<\/p>\n
4   (1)     The   capacity   of   production   for   any   part   of   the   year,   or   any <\/p>\n
change in the total hot re-rolling mill capacity, shall be calculated pro  <\/p>\n
rata  on the basis of the annual capacity of production determined in <\/p>\n
the above manner stated in Rule 3.\n<\/p>\n
(2) In case a manufacturer proposes to make any change in installed <\/p>\n
machinery   or   any   part   thereof,   which   tends   to   change   the   value   of <\/p>\n
either of the parameters `d’ `n’ `e’ `I’ and `speed of rolling’ referred to <\/p>\n
in sub-rule (3) of sub-rule 3, such manufacturer shall intimate about <\/p>\n
the   proposed   change   to   the   Commissioner   of   Central   Excise   in <\/p>\n
writing, with a copy to Assistant Commissioner of Central Excise, at <\/p>\n
least one month in advance of such proposed change, and shall obtain <\/p>\n
the written approval of the Commissioner before making such change.\n<\/p>\n
Thereafter   the   Commissioner   of   Central   Excise   shall   determine   the <\/p>\n
date from which the change in the installed capacity shall be deemed <\/p>\n
to be effective.”\n<\/p>\n
                                                                                             7<\/span><\/p>\n
7.    However, by Notification No. 45\/97-CE (NT) dated 30th August, 1997, 1997 <\/p>\n
      Rules were amended with effect from 1st September, 1997.  By reason of the <\/p>\n
      said   amendment,   apart   from   substituting   a   fresh   sub-rule   (3)   of   Rule   3, <\/p>\n
      prescribing a new formulae to determine the annual capacity of production, <\/p>\n
      not very relevant for the purpose of the present appeals, Rule 5 was inserted <\/p>\n
      after sub-rule (2) of Rule 4, which reads  as follows :\n<\/p>\n
          “5. In case, the annual capacity determined by the formula in sub-rule <\/p>\n
          (3) of rule 3 in respect of a mill, is less than the actual production of <\/p>\n
          the mill during the financial year 1996-97, then the annual capacity so <\/p>\n
          determined shall be deemed to be equal to the actual production of the <\/p>\n
          mill during the financial year 1996-97.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
8.    The respondent-assessee is engaged in the manufacture of hot re-rolled steel <\/p>\n
      products   of   non-alloy   steel   in   a   hot   steel   rolling   mill,   classifiable   under <\/p>\n
      Chapter 72 of the Central Excise Tariff Act, 1944, for the purpose of levy of <\/p>\n
      Excise   duty   etc.     On   5th  January,   1998   the   Commissioner,   Central   Excise, <\/p>\n
      Chandigarh determined the annual capacity of production of the respondent <\/p>\n
      at 7683.753 MT, as per the formula laid down in sub-section (3) of Rule 3 of <\/p>\n
      1997   Rules.     However,   keeping   in   view   Rule   5,   the   annual   capacity   was <\/p>\n
      finally fixed at 11961.135 MT on the basis of actual production of the mill <\/p>\n
      during the financial year 1996-97.\n<\/p>\n
                                                                                                   8<\/span><\/p>\n
9.    Vide   letter   dated   13th  September,   1999,   the   respondent   requested   the <\/p>\n
      Commissioner   for   re-determination   of   annual   production   capacity   of   their <\/p>\n
      unit in terms of Rule 4(2) of the 1997 Rules on the ground that they have <\/p>\n
      changed some of the parameters of their   mill. The request was acceded to <\/p>\n
      and   vide   order   dated   27th  January   2000,   the   Commissioner,   applying   the <\/p>\n
      formula as laid down under Rule 3(3), determined the annual capacity of the <\/p>\n
      mill at 7328.435 MT but relying on Rule 5, he again computed the annual <\/p>\n
      capacity at 11961.135 MT, being equal to the actual production of the mill <\/p>\n
      during the financial year 1996-97.\n<\/p>\n
10. Aggrieved   by   the   said   order   of   the   Commissioner,   the   respondent   filed   an <\/p>\n
      appeal before the Tribunal. The Tribunal, vide order dated 6th  April, 2000, <\/p>\n
      allowed the appeal and held that  Rule 5 of the 1997 Rules cannot be applied <\/p>\n
      in view of change in technical parameters of the rolling mill.\n<\/p>\n
11. Dissatisfied   with   the   said   order,   the   Commissioner   made   an   application   to <\/p>\n
      the   High   Court   under   Section   35H   of   the   Act,   seeking   a   direction   to   the <\/p>\n
      Tribunal to refer the question of law, which according to him, arose from the <\/p>\n
      order of the Tribunal. Vide order dated 17th  October, 2001, the High Court <\/p>\n
      rejected the reference petition holding that no question of law arose from the <\/p>\n
      order of the Tribunal.  The High Court has held that the provisions of Rule 5 <\/p>\n
                                                                                                   9<\/span><\/p>\n
    cannot be invoked in a case where the annual capacity of the mill  is to be <\/p>\n
    determined in terms of Rule 4(2) of the 1997 Rules on account of change in <\/p>\n
    parameters, observing thus:\n<\/p>\n
        “It is the admitted position that the capacity for the year 1996-97 was <\/p>\n
        fixed on the basis of the parameters adopted by the respondent at the <\/p>\n
        relevant time.  Subsequently, the parameters were altered.  In view of <\/p>\n
        the change in parameters, it is admitted position that the capacity was <\/p>\n
        considerably reduced.  In fact, it has not been disputed that the annual <\/p>\n
        production had come down from 11961.135 Metric Tons to 7328.435 <\/p>\n
        Metric   Tons.     This   having   happened,   the   Revenue   could   not   have <\/p>\n
        claimed excise duty for the capacity which was not in existence.  The <\/p>\n
        provisions   of   Rule   5   cannot   be   invoked   in   a   case   where   after <\/p>\n
        determination of the capacity for the year 1996-97, the Unit makes a <\/p>\n
        change   in  the  capacity  and  the   production  actually  comes  down.    If <\/p>\n
        such a course were permitted, the result would be grossly unfair.”<\/p>\n<\/blockquote>\n
Additionally, the High Court has also noted that a similar view had been taken <\/p>\n
by   the   Tribunal   in   the   case   of   M\/s   Awadh   Alloys   (P)   Ltd.,   since   reported   in <\/p>\n
1999   (112)   ELT   719   (Tri.),   against   the   revenue   but   despite   opportunity   no <\/p>\n
information was furnished whether the said decision had been challenged by the <\/p>\n
revenue or not.  We may however, note at this juncture itself that the finding of <\/p>\n
the High Court to the effect that on account of change in parameters, the annual <\/p>\n
production  had come down from 11961.135 MT to 7328.435 MT is  factually <\/p>\n
incorrect.  The actual annual production determined initially as per the formula <\/p>\n
laid down in Rule 3(3) had worked out to 7638.753 MT, which on change in <\/p>\n
                                                                                                   1<\/span><\/p>\n
parameters now worked out at 7328.435 MT i.e. a difference approx. 300 MT <\/p>\n
only.\n<\/p>\n
12.Hence,   the   Commissioner   has   preferred   the   present   appeals   against   the <\/p>\n
   orders of the High Courts, noted in para 2 (supra).\n<\/p>\n
13. Mr.   B.   Bhattacharya,   learned   Additional   Solicitor   General   of   India, <\/p>\n
   appearing for the revenue, had strenuously urged that the view taken by the <\/p>\n
   High Court to the effect that once the technical parameters, as stipulated in <\/p>\n
   Rule   3(3)   of  the   1997  Rules,   are   altered  in  terms  of  Rule   4(2)   of the  said <\/p>\n
   Rules,   resulting   in   reduction   in   the   production   capacity,   Rule   5   cannot   be <\/p>\n
   invoked,   is   clearly   fallacious.     According   to   the   learned   counsel,   for   the <\/p>\n
   purpose of Rule 4(2), the production  capacity of the rolling mill has to be <\/p>\n
   determined under the said Rule 3(3) as there is no other rule to take care of <\/p>\n
   such   a   situation.     It   was   argued   that   when   the   production   capacity   of   a <\/p>\n
   factory  is  to  be determined   under  the said  Rule,  Rule  5  will  automatically <\/p>\n
   come   into   play.     Relying   on   the   clarification   issued   by   the   Board   vide <\/p>\n
   Circular   dated   26th  February   1998,   learned   counsel   argued   that   since <\/p>\n
   reference to previous year’s production in Rule 5 of the 1997 Rules is to the <\/p>\n
   actual production of the mill and does not relate to the technical parameters <\/p>\n
   of   the   machinery,   the   actual   production   of   the   year   1996-97   would   be <\/p>\n
                                                                                               1<\/span><\/p>\n
    relevant for determining the current year’s duty liability under Section 3A of <\/p>\n
    the  Act,   even  when  parameters  of  the  machinery   are  altered.     It  was  thus, <\/p>\n
    asserted   that   since   re-determination   of   capacity   of   production   under   Rule <\/p>\n
    4(2)   has   to   be   done   by   the   formulae   prescribed   in   the   said   Rule   3(3),   the <\/p>\n
    provisions of Rule 5 cannot be disregarded. Commending us to the decision <\/p>\n
    of this Court in Commissioner of Customs, Bangalore Vs. ACER India (P)  <\/p>\n
    Ltd.1, learned counsel contended that the Rules relating to determination of <\/p>\n
    capacity of production have to be strictly construed.\n<\/p>\n
14. Per contra, learned counsel appearing for the respondents, led by Mr. Balbir <\/p>\n
    Singh, submitted that when there is any change in the parameters of a rolling <\/p>\n
    mill, which are different from the rolling mill in the financial year 1996-97, <\/p>\n
    Rule 5 has no application.   Highlighting the fact that the decision of a Full <\/p>\n
    Bench   of   the   Tribunal   in  Sawanmal   Shibumal   Steel   Rolling   Mills  Vs.  <\/p>\n
    C.C.E., Chandigarh-I2  as also the decision of the High Court of Karnataka <\/p>\n
    in  Commr.   of   Central   Excise,   Belgaum  Vs.  Bellary   Steel   Rolling   Mills3, <\/p>\n
    wherein  it has been held that when there are alterations in the parameters, <\/p>\n
    referred to in Rule 3(3) of the 1997 Rules, Rule 5 does not apply, learned <\/p>\n
1 (2008) 1 SCC 382<\/p>\n
2 2001 (127) E.L.T. 46 (Tri.-LB)<\/p>\n
3 2009 (245) E.L.T. 114 (Kar)<\/p>\n
                                                                                                    1<\/span><\/p>\n
    counsel stressed that the revenue having accepted these decisions on the very <\/p>\n
    same point, it is debarred from taking a contrary stand in these appeals.\n<\/p>\n
15. In   rejoinder,   Mr.   Bhattacharya,   cited   the   decision   of   this   Court   in  C.K.\n<\/p>\n
    Gangadharan   &   Anr.  Vs.  Commissioner   of   Income   Tax,   Cochin4  in <\/p>\n
    support of his submission that the revenue is not precluded from questioning <\/p>\n
    the   correctness   of   the   decision   of   the   authorities   below   in   these   appeals <\/p>\n
    despite   the   fact   that   orders\/decision   in  the   afore-mentioned   cases   have   not <\/p>\n
    been challenged.\n<\/p>\n
16.Thus,   the   short   question   for   consideration   is   whether   Rule   5   of   the   1997 <\/p>\n
    Rules   will   apply   in   a   case   where   a   manufacturer   proposes   to   make   some <\/p>\n
    change in the installed machinery or any part thereof and seeks the approval <\/p>\n
    of the Commissioner of Excise in terms of Rule 4(2) of the said Rules?\n<\/p>\n
17. Before   addressing   the   contentions   advanced   by   learned   counsel   for   the <\/p>\n
    parties, it is essential to note at the outset that in all these appeals, there is no <\/p>\n
    challenge   to   the   validity   of   Rule   5   of   the   1997   Rules,   inserted   vide <\/p>\n
    Notification dated 30th August, 1997 and, therefore, we are only required to <\/p>\n
    interpret it and examine the width of its application.\n<\/p>\n
4 (2008) 8 SCC 739<\/p>\n
                                                                                               1<\/span><\/p>\n
18. As   noted   above,   Section   3A   was   inserted   in   the   Act   to   enable   the   Central <\/p>\n
    Government   to   levy   Excise   duty   on   manufacture   or   production   of   certain <\/p>\n
    notified goods on the basis of annual capacity of production to be determined <\/p>\n
    by the Commissioner of Central Excise in terms of the Rules to be framed by <\/p>\n
    the Central Government.  Section 3A of the Act is an exception to Section 3 <\/p>\n
    of   the   Act   –   the   charging   Section   and   being   in   nature   of   a  non   obstante <\/p>\n
    provision,   the   provisions   contained   in   the   said   Section   override   those   of <\/p>\n
    Section 3 of the Act.  Rule 3 of 1997 Rules framed in terms of Section 3A(2) <\/p>\n
    of the Act lays down the procedure for determining the annual capacity of <\/p>\n
    production   of   the   factory.     Sub-rule   (3)   of   that   Rule   contains   a   specific <\/p>\n
    formula   for   determination   of   annual   capacity   of   production   of   hot   rolled <\/p>\n
    products.     This   is   the   only   formula   whereunder   the   annual   capacity   of <\/p>\n
    production   of   the   factory,   for   the   purpose   of   charging   duty   in   terms   of <\/p>\n
    Section 3A of the Act, is to be determined.   Second proviso to sub-section <\/p>\n
    (2)   of   Section   3A   of   the   Act   contemplates   re-determination   of   annual <\/p>\n
    production  in a case  when there  is alteration  or modification  in any factor <\/p>\n
    relevant to the production of the specified goods but such re-determination <\/p>\n
    has again to be as per the formula prescribed in Rule 3(3) of the 1997 Rules.\n<\/p>\n
    It is clear that sub-rule (2) of Rule 4, which, in effect, permits a manufacturer <\/p>\n
                                                                                                  1<\/span><\/p>\n
   to make a change in the installed machinery or part thereof which tends to <\/p>\n
   change  the value of either of the parameters,  referred  to in sub-rule  (3) of <\/p>\n
   Rule 3, on the basis whereof the annual capacity of production had already <\/p>\n
   been   determined,   would   obviously   require   re-determination   of   annual <\/p>\n
   capacity of production of the factory\/mill, for the purpose of levy of duty.  It <\/p>\n
   is plain that in the absence of any other Rule, providing for any alternative <\/p>\n
   formula   or   mechanism   for   re-determination   of   production   capacity   of   a <\/p>\n
   factory, on furnishing of information to the Commissioner as contemplated <\/p>\n
   in Rule 4(2) of the 1997 Rules, such determination has to be in terms of sub-\n<\/p>\n
   rule (3) of Rule 3.  That being so, it must logically follow that Rule 5 cannot <\/p>\n
   be ignored in relation to a situation arising on account of an intimation under <\/p>\n
   Rule 4(2) of the 1997 Rules.  Moreover, the language of Rule 5 being clear <\/p>\n
   and   unambiguous,   in   the   sense   that   in   a   case   where   annual   capacity   is <\/p>\n
   determined\/redetermined by applying the formula prescribed in sub-rule (3) <\/p>\n
   of Rule 3, Rule 5 springs into action and has to be given full effect to.\n<\/p>\n
19.The principle that a taxing statute should be strictly construed is well settled.\n<\/p>\n
   It   is   equally   trite   that   the   intention   of   the   Legislature   is   primarily   to   be <\/p>\n
   gathered   from   the   words   used   in   the   statute.     Once   it   is   shown   that   an <\/p>\n
                                                                                                    1<\/span><\/p>\n
    assessee falls within the letter of the law, he must be taxed however great the <\/p>\n
    hardship may appear to the judicial mind to be.\n<\/p>\n
20. On the principles  of interpretation of taxing statutes, the following passage <\/p>\n
    from the opinion of  Late Rowlatt, J.  in  Cape Brandy Syndicate  Vs.  Inland  <\/p>\n
    Revenue   Commissioners5  has   become   the  locus   classicus  and   has   been <\/p>\n
    quoted with approval in a number of decisions of this Court:\n<\/p>\n
               “….in   a   taxing   act,   one   has   to   look   merely   at   what   is <\/p>\n
               clearly said. There is no room for any intendment. There <\/p>\n
               is no equity about a tax. There is no presumption as to a <\/p>\n
               tax.   Nothing   is   to   be   read   in,   nothing   is   to   be   implied. <\/p>\n
               One can only look fairly at the language used.”<\/p>\n<\/blockquote>\n
21. In  Commissioner  of  Sales Tax,  Uttar Pradesh  Vs.  The  Modi Sugar Mills  <\/p>\n
    Ltd.6, J.C. Shah, J. observed thus:\n<\/p>\n
               “In interpreting a taxing statute, equitable considerations <\/p>\n
               are   entirely   out   of   place.     Nor   can   taxing   statutes   be <\/p>\n
               interpreted   on   any   presumptions   or   assumptions.     The <\/p>\n
               court must look squarely at the words of the statute and <\/p>\n
               interpret   them.     It   must   interpret   a   taxing   statute   in   the <\/p>\n
               light   of   what   is   clearly   expressed:   it   cannot   imply <\/p>\n
               anything   which   is   not   expressed;   it   cannot   import <\/p>\n
               provisions   in   the   statutes   so   as   to   supply   any   assumed <\/p>\n
               deficiency.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
5 1921 (1) KB 64, 71<\/p>\n
6 (1961) 2 SCR 189<\/p>\n
                                                                                                  1<\/span><\/p>\n
22. In  Mathuram  Agrawal  Vs.  State   of   Madhya  Pradesh7,  D.P.  Mohapatra,  J.\n<\/p>\n
    speaking   for   the   Constitution   Bench,   stated   the   law   on   the   point   in   the <\/p>\n
    following terms:\n<\/p>\n
              “The intention of the legislature in a taxation statute is to <\/p>\n
              be   gathered   from   the   language   of   the   provisions <\/p>\n
              particularly   where   the   language   is   plain   and <\/p>\n
              unambiguous. In a taxing Act it is not possible to assume <\/p>\n
              any   intention   or   governing   purpose   of   the   statute   more <\/p>\n
              than   what   is   stated   in   the   plain   language.   It   is   not   the <\/p>\n
              economic   results   sought   to   be   obtained   by   making   the <\/p>\n
              provision which is relevant in interpreting a fiscal statute. <\/p>\n
              Equally impermissible is an interpretation which does not <\/p>\n
              follow   from   the   plain,   unambiguous   language   of   the <\/p>\n
              statute. Words cannot be added to or substituted so as to <\/p>\n
              give a meaning to the statute which will serve the spirit <\/p>\n
              and intention of the legislature. The statute should clearly <\/p>\n
              and unambiguously convey the three components of the <\/p>\n
              tax law i.e. the subject of the tax, the person who is liable <\/p>\n
              to pay the tax and the rate at which the tax is to be paid. <\/p>\n
              If   there   is   any   ambiguity   regarding   any   of   these <\/p>\n
              ingredients   in   a   taxation   statute   then   there   is   no   tax   in <\/p>\n
              law. Then it is for the legislature to do the needful in the <\/p>\n
              matter.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
23. We do not find any reason to depart from these well settled principles to be <\/p>\n
    applied while interpreting a fiscal statute. Therefore, bearing in mind these <\/p>\n
    principles   and   the   intent   and   effect   of   the   statutory   provisions,   analysed <\/p>\n
    above, the conclusion becomes inevitable that Rule 5 of the 1997 Rules will <\/p>\n
7 (1999) 8 SCC 667<\/p>\n
                                                                                                 1<\/span><\/p>\n
   be   attracted   for   determination   of   the   annual   capacity   of   production   of   the <\/p>\n
   factory   when   any   change   in   the   installed   machinery   or   any   part   thereof   is <\/p>\n
   intimated to the Commissioner of Central Excise in terms of Rule 4(2) of the <\/p>\n
   said Rules.\n<\/p>\n
24.As regards the argument of learned counsel for the respondents that having <\/p>\n
   not assailed the correctness of some of the orders passed by the Tribunal and <\/p>\n
   a decision of the High Court of Karnataka, the revenue cannot be permitted <\/p>\n
   to adopt the policy of pick and choose and challenge the orders passed in the <\/p>\n
   cases before us, it would suffice to observe that such a proposition cannot be <\/p>\n
   accepted as an absolute principle of law, although we find some substance in <\/p>\n
   the stated grievance of the assessees before us, because such situations tend <\/p>\n
   to give rise to allegations of malafides etc.  Having said so, we are unable to <\/p>\n
   hold   that   merely   because   in   some   cases   revenue   has   not   questioned   the <\/p>\n
   correctness of an order on the same issue, it would operate as a bar for the <\/p>\n
   revenue to challenge the order in another case.  There can be host of factors, <\/p>\n
   like the amount of revenue involved, divergent views of the Tribunals\/High <\/p>\n
   Courts on the issue, public interest etc. which may be a just cause, impelling <\/p>\n
   the revenue to prefer an appeal on the same view point of the Tribunal which <\/p>\n
   had been  accepted  in the  past.   We, may  however, hasten to add that it is <\/p>\n
                                                                                                1<\/span><\/p>\n
      high time when the Central  Board of Direct  and Indirect  Taxes  comes  out <\/p>\n
      with a uniform policy, laying down strict parameters for the guidance of the <\/p>\n
      field staff for deciding whether or not an appeal in a particular case is to be <\/p>\n
      filed.     We   are   constrained   to   observe   that   the   existing   guidelines   are <\/p>\n
      followed more in breach, resulting in avoidable allegations of malafides etc.;\n<\/p>\n
      on the part of the officers concerned.\n<\/p>\n
25. For  the  foregoing reasons,  the  orders  impugned  in  these  appeals cannot  be <\/p>\n
      sustained.   All these orders are set aside and that of the Commissioners of <\/p>\n
      Central Excise are restored.  The appeals are allowed accordingly with costs, <\/p>\n
      quantified at `50,000\/- in each set of appeals.\n<\/p>\n
                                                     …………………………………….\n<\/p>\n
                                                          (D.K. JAIN, J.) <\/p>\n
                                                             ……………………………………..\n<\/p>\n
                                                        (H.L. DATTU, J.)<\/p>\n
     NEW DELHI;\n<\/p>\n
     JULY 6, 2011.\n<\/p>\n
     ARS<\/p>\n
                                                                                             1<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commnr. Of Central Excise, … vs M\/S. Doaba Steel Rolling Mills on 6 July, 2011 Author: D Jain Bench: D.K. Jain, H.L. Dattu REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3400 OF 2003 COMMISSIONER OF CENTRAL — APPELLANT EXCISE, CHANDIGARH VERSUS M\/S DOABA STEEL ROLLING […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-203384","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommnr. Of Central Excise, ... vs M\/S. 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