{"id":223433,"date":"1987-10-27T00:00:00","date_gmt":"1987-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-r-f-limited-vs-collector-of-central-excise-on-27-october-1987"},"modified":"2018-12-20T16:13:54","modified_gmt":"2018-12-20T10:43:54","slug":"m-r-f-limited-vs-collector-of-central-excise-on-27-october-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-r-f-limited-vs-collector-of-central-excise-on-27-october-1987","title":{"rendered":"M.R.F. Limited vs Collector Of Central Excise on 27 October, 1987"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
M.R.F. Limited vs Collector Of Central Excise on 27 October, 1987<\/div>\n
Equivalent citations: 1987 (14) ECC 349, 1988 ECR 75 Tri Delhi, 1987 (32) ELT 588 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 S.G. Sankaran, Senior Vice-President <\/p>\n
1. The dispute in the present “case concerns miniature tyres manufactured and distributed as free gifts by the appellants. On a representation from the appellants, the Central Board of Excise and Customs (hereinafter the “Board” for short), in exercise of its powers under Sub-rule (2) of Rule 8 of the Central Excise Rules, 1944 (hereinafter the “rules”) exempted such tyres from the whole of the excise duty leviable thereon. The Order F.No. 7\/20\/64-Ex.II dated 27.10.1984, read as follows :-\n<\/p>\n
 “I am directed to refer to your letter No. 031\/PTJ, dated the 3rd October,   1964  on the above subject and to say that in  pursuance of Sub-rule (2) of Rule 8 of the Central Excise Rules, 19W, the Central Board of Excise and Customs grants exemption from whole of the Central Excise duty leviable on miniature tyres proposed to be manufactured and distributed as free gifts.”\n<\/p>\n
(It may be noted that the Board’s order did not say under which item of the Central Excise Tariff Schedule – CET – miniature tyres fell). It appears that the Assistant Collector, Goa, considered that the Board’s order applied to miniature tyres falling under Item No. 16, CET otherwise no purpose would have been served by the Board’s order. According to the Assistant Collector, the subject goods which were not pneumatic tyres but were used as ash trays or show pieces, more appropriately fell under Item No. 68 CET. On this basis, he passed an order on 13.2.1980 rejecting the appellant’s claim for exemption from duty on the miniature tyres manufactured by them. He also passed another order on 3.6.1980 rejecting the claim filed by the appellants for refund of the duty paid on miniature tyres during the period 3.11.1979 to 30.4.1980. In appeal, both these orders were upheld by the Appellate Collector of Central Excise by his order dated 5.4.1982 which is challenged in the present proceedings before us.\n<\/p>\n
2.    We  have  heard  Shri S.   Ignatius,   Manager,   Indirect   Taxes of  the appellant company and Shri K.C. Sachars J.D.R. for the respondent.\n<\/p>\n
3.   Shri  Ignatius  referred   to,   and  relied  on,   this  Tribunal’s  decision on   a   similar   issue   in   another   appeal   of   the   same  appellants  reported in   1987  (29)  ELT 732.   By a  majority of the  Bench,   it  was held therein that   miniature   tyres   manufactured   by   the  appellants and  distributed  at free  gifts (the  two  requirements  in  the   Board’s  order)  were entitled to exemption   from   duty   irrespective   of   whether   they   fell   under   Item   16 or  68  CET because the  Board’s order did not tie up the exemption with any particular tariff entry).\n<\/p>\n
4. The Bench enquired of Shri Ignatius whether the Board could grant an exemption of a permanent nature under Rule 8(2) when its powers under that sub-rule would appear to relate to specific consignments, Shri Ignatius submitted that the Board’s order was specifically on miniature tyres and the precedent decision of this Tribunal should be applied to the instant case too. However, Shri Sachar, D.R. submitted that an exemption order under Rule 8(2) could only be ad hoc.\n<\/p>\n
5.    At this stage, Shri Ignatius sought leave of the Bench to withdraw the  appeal.   Leave   was   declined   by   a   majority  of  the   Bench.   This  was in  the  light   of  this  Tribunal’s  decision   in  Mahandra   Mills Ltd.   v.  CCE, Baroda  –   1987  (31)  ELT  295,  holding inter-alia that  right  of  withdrawal of   appeal   is   not   available   to   parties  and   further   because   it   appeared that the appellants were trying (at a belated stage at the end of the hearing) to avoid what they perhaps felt was likely to be an adverse decision. The request did not appear, therefore, to be bona fide reasons.\n<\/p>\n
6.   In  our   view,   the  powers of the  Board under Sub-rule (2)  of  Rule 8 are limited in nature. Sub-rule (2) reads thus :\n<\/p>\n
 “The Central Board of Excise & Customs may by special order in each case, exempt from the payment of duty under circumstances of an exceptional nature, any excisable goods.”\n<\/p>\n
It is clear that the exemption can be only with reference to each case i.e. a specific consignment or lot or for a specific period. An order under Rule 8(2) cannot be of a permanent nature like a notification issued by the Central Government under Rule 8(1). The present order under Rule 8(2) was issued as far back as on 26.10.1964,, It cannot, by any means, be said to be operative as late as in 1979 and 1980 (the period of the present dispute is 3.11.1979 to 30.4.1980). Quite apart from this consideration, the goods fell under Item No. 68 CET with effect from 1.3.197.5 (Shri Ignatius said he was not making any submission on the point of confiscation of the goods) for the cogent reasons set out in the opinion recorded by the learned Judicial Member in his order in the precedent decision. It should be noted that the majority did not go into the question of classification.\n<\/p>\n
7.    In   the   result,   we   hold   that   the   Board’s  order   dated  27.10.1964 did not apply to the subject goods during the material period. We uphold the impugned order and dismiss the appeal.\n<\/p>\n
 V.T. Raghavachari, Member (J)<\/p>\n
8. I am writing this separate order  since,  when a  request  was made for  withdrawal of the appeal (as noted   in paragraph 5   of   the   order   prepared   by   the  Sr.   V ice-President), I   was of  the  opinion  that  the  same  should  be  permitted but,  as  noted in   the   order   of   the   Sr.   V ice-President,   the   majority   of   the   Members were   of   the   contrary   view   and,   therefore,   permission   for   withdrawal of the appeal was declined by the Bench.\n<\/p>\n
9.    In   his   submissions   Shri   Ignatius   mainly   relied   on   the   decision of this Tribunal reported in 1987 (29) ELT 732 which dealt with the same manufactured by the same appellants. The only difference between that case and the present case is with reference to the period for which duty was to be paid on the said product. In the circumstances Shri Ignatius, quite rightly in my opinion, relied on the said decision and therefore requested that this Bench should, following the said decision, allow the appeal. Hence, at that stage, Shri Ignatius was perfectly justified in thinking that this Bench would, in the normal circumstances, follow the said decision and allow the appeal.\n<\/p>\n
10.  But  during the hearing it  was the  Bench which raised the query whether   the   letter   dated   27.10.1964   relied   on   by   the   appellants   (and on  the  basis  of   winch  the  earlier   decision  had been  rendered) would in fact   be  a   proper   ground  for  granting  relief   either   in  the  earlier  case, or in the present appeal,  since,  on a proper reading of the relevant legal provisions,   the   Central   Board   would   have   no   jurisdiction  to  grant   any such general exemption from payment of duty  in respect of future goods of   a   particular   category.   It   was,   therefore,   enquired   whether   the   said letter   ought   not   to   be   ignored  and,  therefore,   go  into  the  question  of the  excisability  of  the  product  and  the  item  under   which   it  would fall for purpose of levy of duty.\n<\/p>\n
11.  It   should  be  remembered  that  the  contention  for  the appellants has been that  except  in the case of the Goa Central Excise Collectorate duty was not being demanded on this product by any of the other Collectorates, the reason therefor being the exemption granted under the letter dated   27.10.1964.   That   is  to   say,   the  appellants  were   being   permitted by other Collectorates except the Goa Collectorate to remove this product without   payment   of   duty.   In  respect  of  Goa  Collectorate the appellants have obtained the order of this Tribunal cited supra upholding their contention for eligibility for exemption. It  is in these circumstances that, when posed   with   the   question   whether   the   decision   of   the   Tribunal   earlier would not  be  wrong (on the basis that the letter dated 27.10.1964 could not  grant    exemption  in  respect  of  future removals),  Shri Ignatius  made the request  for  withdrawal of the appeal,  evidently because he felt that any   adverse   decision   in   this  appeal   may   initiate  action   for   demand  of duty from other Collectorates also.\n<\/p>\n
12.  The   decision   in   1987   (31)   ELT   295   does  not   lay  down  that   no appellant   can  in any circumstance be permitted to withdraw his appeal. As   regards   the   observations   therein   that   the   Tribunal   has   powers,   in modifying the order appealed against, to so modify it as to enhance the liability   of   the   appellant,   I   have   my   own   serious   doubts.   The   normal rule is that no person shall be placed in a worse position than he is because he  has  preferred  an  appeal.   Any  exception to this rule  will have to be supported by the provisions in the statute (providing for the appeal) containing a  suitable provision  for  enhancement  of the  liability.  Therefore, to read from Section 35-C of the Central Excises and Salt Act a provision to this effect does not appear to be very proper.\n<\/p>\n
13.  It   is  in   view  of  the  above  considerations that   I  felt,   when  the request for withdrawal was made, that this would be a proper case where permission for withdrawal may be given. But since the other two members of   the   Bench   were   of   the   contrary   view  the   permission   was  declined by the Bench and further hearing was continued.\n<\/p>\n
14. On the merits of the issue I agree with the Sr. Vice-President that the provisions of Rule 8 of the Central Excise Rules could not be construed as conferring on the Central Board a power to grant exemption indefinitely on all future removals but that such a power should be held to be restricted to a particular instance or instances. I, therefore, agree that the letter dated 27.10.1964 relied on by the appellants would not entitle the appellants to claim exemption from payment of duty in the instances in issue. I, therefore, concur with the order of dismissal of the appeal proposed by the Sr. Vice-President.\n<\/p>\n
 K. Prakash Anand,  Member (T)<\/p>\n
15. I wholly concur in  the order  recorded  by  my  learned  brother  Shri Sankaran.  In  view,  however, of the comments made by  my learned brother Shri Raghavachari,  it has become necessary for me to make a small observation.\n<\/p>\n
16. I do not think that brother Sankaran and I felt that in the light of  the  decision  of  Mahandra  Mills Ltd.  v.  Collector of Central    Excise, Baroda   –   1987   (31)   ELT   295,   no  appellant   can,   in  any   circumstances, be permitted to withdraw his appeal. Here was a case where the hearing of the matter which had proceeded for quite some time, had nearly concluded  and,  as  it   happened,   towards the  end,   it  became apparent  that the appellant’s appeal was likely to” be dismissed by the Bench. On quick calculation   of   his   interest,   Shri   Ignatius   thereupon   sought   permission to  withdraw  the  appeal.   It   is,   in  these circumstances that  we  decided that  the  request   could  not be  granted.   If   every  appellant   were to  be considered to have a  right  to  withdraw  his appeal after  he has argued that   length,   and   in  the   course  of   arguments,   it  becomes apparent  to him that the consequences of the appeal are going to be adverse to him, this would certainly defeat the ends of justice.\n<\/p>\n
17.  Appeal dismissed.\n<\/p>\n
 Dated : 26.10.1987                                  (K. Prakash Anand)\n                                                     Member\n\n \n\nIn   view   of the  majority opinion, the impugned order  is upheld and the appeal is dismissed.\n\n \n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi M.R.F. Limited vs Collector Of Central Excise on 27 October, 1987 Equivalent citations: 1987 (14) ECC 349, 1988 ECR 75 Tri Delhi, 1987 (32) ELT 588 Tri Del ORDER S.G. Sankaran, Senior Vice-President 1. The dispute in the present “case concerns miniature tyres manufactured and distributed as free […]<\/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":[41,33],"tags":[],"class_list":["post-223433","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nM.R.F. 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