{"id":213484,"date":"1989-12-07T00:00:00","date_gmt":"1989-12-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/collector-of-central-excise-vs-decent-dyeing-co-on-7-december-1989"},"modified":"2015-01-31T20:02:02","modified_gmt":"2015-01-31T14:32:02","slug":"collector-of-central-excise-vs-decent-dyeing-co-on-7-december-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/collector-of-central-excise-vs-decent-dyeing-co-on-7-december-1989","title":{"rendered":"Collector Of Central Excise, … vs Decent Dyeing Co on 7 December, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Collector Of Central Excise, … vs Decent Dyeing Co on 7 December, 1989<\/div>\n
Equivalent citations: 1989 SCR, Supl. (2) 430 1990 SCC (1) 180<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nCOLLECTOR OF CENTRAL EXCISE, CHANDIGARH\n\n\tVs.\n\nRESPONDENT:\nDECENT DYEING CO.\n\nDATE OF JUDGMENT07\/12\/1989\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nRAY, B.C. (J)\n\nCITATION:\n 1989 SCR  Supl. (2) 430  1990 SCC  (1) 180\n JT 1989  Supl.\t   377\t  1989 SCALE  (2)1262\n\n\nACT:\n    Central  Excises and Salt Act, 1944: Section 35L(b)\t and\nRule\t9(2)--Assessee--Dyeing\t acrylic   yarn\t   on\t Job\ncharges--Levy of excise duty--Legality of.\n\n\n\nHEADNOTE:\n    The\t Respondent  Company was in the business  of  dyeing\nacrylic\t yarn  received from traders  and  manufacturers  of\nhosiery\t goods on job basis. It was paying duty at the\trate\nof  Rs. 10 per K.G. in terms of Notification  No.  125\/75-CE\ndated  12.5.1975 on the presumption that base yarn had\tdis-\ncharged duty liability before it was received for dyeing.  A\nshow  cause notice under section 9(2) of the Central  Excise\nRules, 1944 was issued by the Assistant Collector of Central\nExcise\tdemanding  an amount of Rs.4,300 as  central  excise\nduty (C) Rs.24 per K.G. on 180 Kgs. for the period May\t1976\nto  July  1976. The demand was resisted\t by  the  Respondent\nCompany contending that duty on base yarn was payable by the\nManufacturers  and the burden of showing that this  had\t not\nbeen paid by the Manufacturers was on the Revenue which\t was\nnot  accepted  and on appeal by the Assessee  the  Appellate\nCollector of Central Excise confirmed the demand. On further\nappeal,\t however, the Appellate Tribunal upheld the  conten-\ntion  of  the Respondent holding that the  Manufacturer\t was\nliable\tto pay duty on the base yarn since purchasers  could\nnaturally  assume  that\t the duty on base  yarn\t would\thave\nalready\t been paid by the Manufacturer and that it  was\t for\nthe  Department to verify the fact of such payment and\ttake\naction\tagainst the manufacturer, if duty had not been\tpaid\nparticularly  when in this case the Assessee  had  disclosed\nthe names of persons\/manufacturers from whom it had received\nthe yarn for dyeing while the matter was pending before\t the\nCollector.\nDismissing the appeals preferred by the Revenue, this Court,\n    HELD: Excise is a duty on manufacture. The liability  of\npayment of this duty is on the manufacturer. The language of\nthe  Notification No. 125\/75 dated 12th May  1975  indicates\nthat  only the duty for the time being leviable on the\tbase\nyarn,  if not already paid, plus ten rupees per kg. was\t the\nliability. The description of manufacture was textured\tyarn\nproduced out of base yarn. [434B]\n431\n    It would be intolerable if the purchasers were  required\nto  ascertain whether excise duty had already been  paid  as\nthey have no means of knowing it. It has to be borne in mind\nthat duty of excise is primarily a duty levied on a manufac-\nturer or a producer in respect of the commodity manufactured\nor  produced.  A  processor is in the  similar\tposition  as\npurchaser of the goods. [434D-E]\n    Sulekh Ram & Sons v. Union of India & Ors., [1978] ELT J\n525  and Governor General in Council v. Province of  Madras,\n72 Indian Appeals 91, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2 15\t 152
\n(NM) of 1986 etc.
\n    From the Order dated 8.5.1984 of the Customs Excise\t and
\nGold  Control\/Appellate\t Tribunal, New Delhi in\t Appeal\t No.
\n2530\/83-D  & Cross objections 27\/84, Order No. 258\/84-D\t and
\nMisc. Order No. 67 84-D.\n<\/p>\n
    A.K.  Ganguli, P. Parmeswaran and Hemant Sharma for\t the
\nAppellant.\n<\/p>\n
Gobinda Mukhoty and P.N. Gupta for the Respondent.
\nThe Judgment of the Court was delivered by
\n    SABYASACHI MUKHARJI, J. This is an appeal under  section
\n35L(b) of the Central Excises & Salt Act, 1944\t(hereinafter
\nreferred to as ‘the Act’) against the judgment and order  of
\nthe  Customs, Excise and Gold (Control) Appellate  Tribunal,
\nNew Delhi (hereinafter referred to as ‘the Tribunal’)  dated
\n8th May, 1984.\n<\/p>\n
    The\t appeal\t is by the revenue. The\t respondent,  Decent
\nDyeing\tCo.,  was dyeing acrylic yarn on  job  charges.\t The
\nacrylic\t yarn  was  being received by  the  respondent\tfrom
\ntraders\t in the market or from the manufacturers of  hosiery
\ngoods  and were returning the same to them after  completing
\nthe required process. The respondent was paying duty at\t the
\nrate of Rs. 10 per kg. in terms of notification No.  125\/75-
\nCE  dated 12th May, 1975 on the presumption that  base\tyarn
\nhad  discharged\t duty liability before it was  received\t for
\ndyeing. A show cause notice requiring the respondent to show
\ncause to the Assistant Collector of Central Excise as to why
\ncentral\t excise duty amounting to Rs.4,300 at Rs.24 per\t Kg.
\nleviable  on  180  kgs. (as applicable to  base\t yarn  under
\ntariff\titem 18(i) of the Central Excise Tariff) should\t not
\nbe  demanded  under rule 9(2) of the Central  Excise  Rules,
\n1944, was issued to the respondent. The Assistant  Collector
\nof  Central  Excise directed the respondent  to\t deposit  an
\namount of Rs.4,300 on the basis
\n432<\/span>
\n  of the demand of duty at Rs.24 per kg. on 180.00 kgs.\t and
\ndirected the respondent to deposit the said amount under the
\nproper\thead. On appeal, the Appellate Collector of  Central
\nExcise confirmed the said demand.\n<\/p>\n
     There  was an appeal and the Appellate Tribunal  upheld
\nthe  contention\t of the respondent. The\t Appellate  Tribunal
\nfound  that  the  case related to a demand  for\t payment  of
\ndifferential  duty  for the period May, 1976 to\t July,\t1976
\nwith reference to texturing of base acrylic yarn received by
\nthe respondent from the manufacturers of such base yarn. The
\nrespondent,  the  Tribunal held, had cleared  such  textured
\nyarn  on  payment  of duty at Rs. 10 per  kg.  claiming\t the
\nbenefit\t of notification No. 125\/75. The  differential\tduty
\npayment\t was Rs.24 per kg. leviable on the base\t yarn.\t,The
\nrespondent  denied  theft  liability but it  was  upheld  as
\nmentioned  ‘hereinbefore. It was contended on behalf of\t the
\nappellant  before  the Tribunal.that duty on base  yarn\t was
\npayable\t by the manufacturers of the base yarn only and\t the
\nburden\tof showing that the said duty had not been  paid  by
\nthe  manufacturers was on the revenue. The authorities\thad,
\nhowever,  held\tthat the appellant was liable  to.  pay\t the
\ndifferential  duty since the appellant had failed  to  prove
\nthe  payment  of duty on the base yarn and,  therefore,\t the
\nsaid  orders were bad. On the other hand, on behalf  of\t the
\nrevenue, it was contended that it was for the respondent  to
\nprove  that the duty had been paid on the base yarn  and  if
\nthe  appellant\twas paying the duty of Rs. 10 per  kg.\tOnly
\nunder  notification relied upon and in the absence of  proof
\nof  payment of duty, the base yarn, the orders of the  lower
\nauthorities  making  the respondent liable to pay  the\tduty
\nwere correctly passed. The Tribunal found that the  respond-
\nent was not the manufacturer of base acrylic yarn. The\twork
\ndone by the respondent on the base yarn was by way of textu-
\nrising\tthe same. In respect of the, same, the duty  payable
\non  the textured yarn produced out of base yarn is the\tduty
\nfor  the  time being leviable on the base yarn, if  not\t al-
\nready,\tpaid  plus  Rs.20 per  kg.  Under  notification\t No.
\n125\/75, the duty was reduced to the duty for the time  being
\nleviable on the base yarn, if not already paid, plus Rs.  10
\nper kg.\n<\/p>\n
     In this connection, it is relevant to refer to  notifi-
\ncation No. 125\/ 75. The notification, which was issued under
\nsub-rule  (1) of rule 8 of the Central Excise  Rules,  1944,
\nstated\tthat the Government exempted the texturised yarn  of
\nthe description specified in column (3) of the Table annexed
\nthereto\t and falling under sub-items of item No. 18  of\t the
\nFirst  Schedule\t to the Act as are specified in\t the  corre-
\nsponding  entries in column (2) of the said Table,  from  so
\nmuch of the duty of
\n433<\/span>
\nexcise\tleviable thereon as is in excess of the duty  speci-
\nfied in the corresponding entries in column (4) of the\tsaid
\nTable. The relevant portion of the Table annexed to the said
\nnotification reads as follows:\n<\/p>\n
———————————————————–
\nS. No. Sub-Item No. Description\t\t    Rate of duty\n<\/p>\n
———————————————————–\n<\/p>\n
1.   (ii)   Textured Yarn produced  The duty for the
\n\t    out of base yarn\t    time being leviable on
\n\t\t\t\t    the base yarn,if not
\n\t\t\t\t    already paid plus ten
\n\t\t\t\t    Rupees per kilogram.\n<\/p>\n
————————————————————\n<\/p>\n
    Admittedly,\t the respondent had paid duty at Rs. 10\t per
\nkg. and had been allowed to clear the goods. The demand\t for
\ndifferential  duty by way of duty payable on the  base\tyarn
\nwas not in dispute. On the base yarn, the Tribunal held, the
\nmanufacturer was liable to pay duty only since purchasers of
\nthe  base yarn from the market could naturally\tassume\tthat
\nduty  on the base yarn would have been paid by the  manufac-
\nturer  before removal and that it was for the department  to
\nverify the fact of such payment and take action against\t the
\nmanufacturer  if  base\tduty had not been  paid.  Under\t the
\nrelevant  tariff  item, the duty, as mentioned\tbefore,\t was
\nfixed  as the duty for the time being leviable on  the\tbase
\nyarn,  if not already paid, plus Rs.20 per kg.\t(reduced  to
\nRs.  10\t per kg. under the notification).  The\tnotification
\ndoes  not change the basic position so far as base  duty  is
\nconcerned  from the aforesaid stand. The Tribunal held\tthat
\nthe revenue was entitled to claim duty inclusive of the duty
\npaid  on base yarn only on proof that the duty on  the\tbase
\nyarn  had  not been already paid, unless otherwise,  in\t the
\nnormal\tcourse, the presumption inevitable, in view  of\t the
\nnature\tof the business, be that the duty on base  yarn\t had
\nbeen paid. If that is so, that cannot be the  responsibility
\nor  the burden of the respondent to prove that the  duty  on
\nbase  yarn  had already been paid. It further  appears\tthat
\nwhen the appeal was filed before the Collector, the respond-
\nent  had disclosed the names of the persons from  whom\tthey
\nhad received the yarn as also the names of the manufacturers
\nenclosing  the copies of the relevant record. But even\tthen
\nthe  revenue  had not chosen to verify these facts  and\t the
\nCollector  (Appeals) had passed his order on the basis\tthat
\nit  was\t for the respondent to prove the actual\t payment  of
\nbase  duty. This approach is not proper approach. It is\t not
\ncorrect\t to  state  that the respondent\t alone\tshould\thave
\nspecial knowledge of the fact of payment of base duty and it
\nwas therefore for the respondent to prove the said fact.  In
\nthat view of the matter, the
\n434<\/span>
\nTribunal  held\tin favour of the respondent. We are  of\t the
\nopinion that the Tribunal was right.\n<\/p>\n
    Excise  is a duty on manufacture. The liability of\tpay-
\nment  of this duty is on the manufacturer. The\tlanguage  of
\nthe  notification  referred to hereinbefore  indicates\tthat
\nonly the duty for the time being leviable on the base  yarn,
\nif not already paid plus ten rupees per kg. was the liabili-
\nty.  The description of manufacture was textured  yarn\tpro-
\nduced  out of base yarn. We are clearly of the opinion\tthat
\nin view of the facts and the circumstances of the case,\t the
\nTribunal was right in the view it took. In this\t connection,
\nit is instructive to refer to rule 49 of the Central  Excise
\nRules,\t1944, which deals with duty chargeable only  on\t the
\nremoval\t of the goods from the factory premises or  from  an
\napproved  place of storage. Reference was also\tmade  before
\nthe  Tribunal and our attention was also drawn to the  deci-
\nsion  of the Delhi High Court in Sulekh Ram & Sons v.  Union
\nof India & Ors., [1978] ELT J 525, where under rule 9 of the
\nCentral\t Excise Rules, it was held by the Delhi\t High  Court
\nthat  under excise system, no goods can be removed from\t the
\nplace of manufacturer without first paying the excise  duty,
\ntherefore, a purchaser can presume that goods are duty paid.
\nIt  would be intolerable if the purchasers were required  to
\nascertain whether excise duty had already been paid as\tthey
\nhave no means of knowing it. It has to be borne in mind that
\nduty of excise is primarily a duty levied on a\tmanufacturer
\nor  a producer in respect of the commodity  manufactured  or
\nproduced.  See the observations of Lord Simonds in  Governor
\nGeneral in Council v. Province of Madras, 72 Indian  Appeals\n<\/p>\n
91. In a situation of this nature, the Delhi High Court held
\nthat the processor was in the similar position as a purchas-
\ner  of the goods. In that view of the matter, we are of\t the
\nopinion that the Tribunal was right in the view it took.
\n    We\thave  heard learned counsel for\t the  appellant\t and
\nconsidered  the matter. We find no merit in the\t appeal\t for
\nthe reasons mentioned above.\n<\/p>\n
    In that view of the matter, this appeal must fail and is
\naccordingly dismissed without any order as to costs.
\nAppeals dismissed.\n<\/p>\n
435<\/span><\/p>\n
CIVIL APPEAL NOS. 214 1-42 (NM) OF 1986.\n<\/p>\n
Collector of Central Excise, Chandigarh
\nVersus\n<\/p>\n
1. M\/s Navrang Dyeing Co. & Ors.\n<\/p>\n
2.  M\/s Capital Dyeing Co This is an appeal under s.  35L(b)
\nof the Act from the judgment
\nand  order of the Tribunal dated 17th April, 1984.  For\t the
\nreasons\t in civil Appeals Nos. 2151-52, these  appeals\tmust
\nalso fail and are accordingly dismissed without any order as
\nto costs.\n<\/p>\n
R.N.J.\t\t\t\t\t       Appeal\tdis-\nmissed\n436<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Collector Of Central Excise, … vs Decent Dyeing Co on 7 December, 1989 Equivalent citations: 1989 SCR, Supl. (2) 430 1990 SCC (1) 180 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: COLLECTOR OF CENTRAL EXCISE, CHANDIGARH Vs. RESPONDENT: DECENT DYEING CO. DATE OF JUDGMENT07\/12\/1989 BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, […]<\/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-213484","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCollector Of Central Excise, ... vs Decent Dyeing Co on 7 December, 1989 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/collector-of-central-excise-vs-decent-dyeing-co-on-7-december-1989\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Collector Of Central Excise, ... vs Decent Dyeing Co on 7 December, 1989 - 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