CaseMinister
CaseMinister › Judgments › Supreme Court › 1996 › Hmm Ltd. v. Collector of Central Excise, New Delhi

Hmm Ltd. v. Collector of Central Excise, New Delhi

Supreme Court of India · 11 October 1996 · [1996] SUPP. 7 S.C.R. 535

Court
Supreme Court of India
Decided
11 October 1996
Case no.
C.A. No. 4081 of 1986
Reported as
[1996] SUPP. 7 S.C.R. 535
Result
Dismissed
Bench
B.P.Jeevan Reddy, Suhas C. Sen
Length
8 pages
Have a question about this judgment?

Ask our Legal AI about it on WhatsApp: free, no signup, in English or Hindi.

Write it first.

PETITIONER:
H.M.M. LIMITED
Vs.
RESPONDENT:
COLLECTOR OF CENTRAL EXCISE, NEW DELHI
DATE OF JUDGMENT: 11/10/1996
BENCH:
B.P.JEEVAN REDDY, SUHAS C. SEN

ACT

HEADNOTE

JUDGMENT

JUDGMENTB.P. JEEVAN REDDY.J.

This appeal preferred against the judgment of the CEGAT involves the interpretation of Notification No.210 of 1979- CE dated 4.6.1979, issued by the Central Government under Rule 8 of the Central Excise Rules.

The appellant-assessee is engaged in the manufacture, inter alia, of "Horlicks" falling under Tariff item 1-B of the Schedule to the Central Excises and Salt Act. It has a factory at Rajahmundry (Bommur) for manufacturing "Horlicks". The entire stock of Horlicks manufactured at Rajahmundry is, however, not cleared/removed after paying the duty at Rajahmundry. Only a portion of the production is put in unit containers/packages and cleared at Rajahmundry after paying the duty while the bulk of the production is sent to the appellant’s factories situated at different places in India in bulk containers. There, the Horlicks is put in unit containers/packages and cleared after paying the duty.

For the purpose of manufacturing Horlicks, the appellant purchases barley malt which was dutiable under Tariff Items 68.

On June 4, 1979, the Central Government issued the aforesaid notification (No.201 of 1979) exempting "all excisable goods ........on which the duty of excise is leviable and in the manufacture of which any goods falling under Item No.68 of the First Schedule to the Central Excises and Salt Act, 1944 have been used, as raw materials or component parts (hereinafter referred as "the inputs") from so mush of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs." Controversy has arisen with respect to the application of the said notification and it is this: the appellant says that it is entitled to take credit of the entire duty paid on barley malt against the duty payable on the Horlicks cleared at Rajahmundry, notwithstanding the fact that the entire quantity of Horlicks manufactured out of the said barley malt is not cleared/removed at Rajahmundry by paying the duty. On the other hand, the Revenue says that the appellant is entitled to take credit at Rajahmundry only of the portion of duty paid on inputs (barley malt) as is proportionate to the Horlicks cleared on paying the duty vis-a-vis the total quantity of Horlicks manufactured out of the said barley malt. The Revenue further says that there is no provision and the appellant is not entitled to transfer the credit to its other factories from where the goods are cleared on payment of duty. The controversy between the parties can be best understood by taking an illustration (unrelated to the actual facts of the case): the manufacture (respondent) purchases 100 tons of barley malt on which the duty paid is Rs.10,000/-. By using the said 100 tons of barley malt, the respondent manufactures one thousand tons of Horlicks. Out of this one thousand tons, it clears 250 tons of Horlicks from the Rajahmundry factory on paying duty. The remaining 750 tons is sent to the factory situated at Bangalore without paying duty under a bond. The 750 tons is put in unit containers and packages at the Bangalore factory and cleared from there on payment of excise duty. According to the appellant, he is entitled to take credit for the entire duty of Rs.10,000/- (paid on 100 tons of barley malt) from out of the duty payable on 250 tons of Horlicks cleared from Rajahmundry factory, whereas according to the Revenue, since the quantity cleared at Rajahmundry on payment of duty is only 1/4th of the total quantity manufactured using 100 tons of barley malt, the appellant is entitled to take credit of only Rs.2,500/- against the duty payable at Rajahmundry. Revenue also says that the respondent is not entitled to take credit of b balance of Rs.7,500/- (duty paid on 75 tons of barley malt) from out of the duty paid on 750 tons at Bangalore. The question is who is right?

Notification No.201 of 1979, insofar as it is relevant, reads:

"In exercise of the powers

conferred by sub-rule (1) of rule 8

of the Central Excise Rules, 1944,

and in supersession of the

notification of the Government of

India in the Ministry of Finance

India in the Ministry of Finance

(Department of Revenue) No. 178/77-

Central Excises, dated the 18th

June, 1977, the Central Government

hereby exempts all excisable goods

(hereinafter referred as "the said

goods"), on which the duty of

excise is leviable and in the

manufacture of which any goods

falling under Item No.68 of the

First Schedule to the Central

Excises and Salt Act, 1944 (1 of

1944) have been used, as raw

materials or component parts

(hereinafter referred as "the

inputs", from so much of the duty

of excise leviable thereon as is

equivalent to the duty of excise

already paid on the inputs:

Provided that the procedure

set out in the Appendix to this

notification is followed:

Provided further that nothing

contained in this notification

shall apply to the said goods which

are exempted from the whole of the

duty of excise leviable thereon or

are chargeable to nil rate of duty:

...................................

APPENDIX

1. A manufacturer of the said

goods shall give a declaration to

the Superintendent of Central

Excise having jurisdiction over his

factory, indicating the full

description of the said goods

intended to be manufactured in his

factory and the full description of

the inputs intended to be used in

the manufacture of each of the said

goods.

9.(a) The credit ofduty taken

in respect of any inputs may be

utilised towards payment of duty on

any said goods for the manufacture

of which such inputs were declared

by the manufacturer to be brought

into the factory, or where such

inputs are cleared from the factory

as such, on such inputs.

(b) No part of such credit

shall be utilised save as provided

in clause (a) or shall be refunded

in cash or by cheque.

10.(a) If the manufacturer

desires to discontinue availing of

the exemption contained in this

notification, he shall give to the

proper officer seven days advance

notice of his intention to do so.

(b) The proper officer shall,

on receipt of such notice,

ascertain the stock of the inputs

in respect of which credit has been

taken and which-

(i) are lying with the

manufacture, whether in the

store room or in the

manufacturing room, and

(ii) have been utilized in the

manufacture of the said goods

but such goods have not yet

been removed from the factory.

(c) The total stock of inputs

so ascertained shall be assessed to

duty and the manufacturer shall pay

the duty forthwith on receipt of a

written demand from the proper

officer.

11. On an application from the

manufacturer of the said goods, the

Collector of Central Excise may

permit a manufacturer to transfer

the unutilized credit in his

account in Form R.B.23 in Appendix

I to the Central Excise Rules, 1944

or the stock of the inputs as such

or in process on account of -

(i) shifting of the plant or

factory, belonging to the

manufacturer to another site;

(ii) merger of the factory;

within another factory;

(iii) transfer of business of

the manufacturer to another

manufacturer;

Provided that the manufacturer

is availing of the exemption

granted under this notification in

respect of the factory to which the

credit or stock is transferred."

(emphasis added)

The first proviso to the notification lays down that the procedure set out in the Appendix to the notification will have to be followed for availing of the credit for the duty paid on the inputs. The Appendix provides that +the manufacturer will+have to give a declaration to the Superintendent of Central Excise having jurisdiction over his factory giving full description of the goods intended to be manufactured in his factory as well as full description of the inputs intended to be used in the manufacture of such goods (Rule 1). The manufacturer may take credit ofthe duty already paid on the inputs which are received by him after submitting the declaration and utilise such credit for payment of duty of excise on the said goods (Rule 2).

These rules do not specifically lay down that the credit of duty taken by the manufacturer must be setoff against the duty payable on the goods actually manufactured utilising these inputs. The manufacturer is entitled to take credit of the duty already paid on the inputs as soon as he receives the inputs and submits the necessary declaration to the Excise Officer. He is, thereafter, entitled to utilise the credit for payment o duty of excise on the goods manufactured by him. The rules do not require any exact correlation between the inputs and the finished products for claiming credit for the duty paid on the inputs. It is not a condition precedent for claiming set-off that the manufacturer must prove that-

(a) the credit was taken in respect

of inputs; and that

(b) these very inputs were utilised

in the manufacture of the goods on

which duty is payable.

Rule 2 merely provides that the manufacturer may take credit of the duty already paid on the inputs and utilise such credit for payment of duty of excise on the manufactured goods. The exact correlation of inputs with the manufacture of the goods is not contemplated by this rule.

The position is put beyond doubt by Rule 10 set out hereinabove which provides that if the manufacturer does not want to continue with the system of clearance of goods provided in the notification, he will have to give a notice to the proper officer to that effect. The proper officer will ascertain that stock of inputs in respect of which credit has been taken but were lying unutilized in the store-room or in the manufacturing room. The proper officer shall also ascertain the inputs which have been utilised in the manufacture of the goods but had not yet been cleared from the factory. The total stock of such goods has to be assessed to duty and the manufacturer will have to pay the duty forthwith on receipt of a written demand from the proper officer. This rule became necessary because it is permissible to take credit for duty paid on the inputs and make adjustment thereof against the duty payable on the goods manufactured and cleared by a manufacturer without actually utilising the inputs. A manufacturer may have taken and utilised the credit for inputs which are lying in the store-room. The manufacturer may also have utilised the inputs in manufacturing uncleared goods. In both the cases, duty will have to be paid on the inputs because the credit for the duty paid on such inputs has been availed of by setting off such credit against other goods cleared by the manufacturer. All these rules really go to show that there was no requirement of actual utilisation of the inputs in the manufacture of the goods for the purpose of claiming set-off of duty paid on the inputs against the duty payable on the goods manufactured by the manufacturer.

With respect to the main controversy, the Revenue emphasises the words "all excisable goods..... on which a duty of excise is leviable and in the manufacture of which any goods falling under Item No.68.....have been used....from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs." It says that the aforesaid words mean and imply the concept o correlation. In other words, they say that only the duty paid on inputs which have been used for manufacturing the goods cleared from the factory (where the inputs were received) can be taken credit of, as explained in the illustration given hereinabove. On the other hand, the learned counsel for the appellant submits that the words in the body of the notification should be read alongwith the procedural rules mentioned in the Appendix. In particular, he relies upon clauses (9) and (10) of the Appendix. The learned counsel also relies upon the instructions issued by the Central Board of Excise and Customs on 18.6.1979 to the following effect:

"Central Excise - Simplification of

procedure regarding Tariff Item 68

- Goods used as "inputs" in the

manufacture of finished excisable

goods.

Attention is invited to

Notification No.201/79-ce, dated

the 4th June, 1979 (page---) and a

copy of the Press Note issued by

the Board is appended. In the Press

Note the need for simplifying the

procedure of set-off granted in

relation to Tariff Item 68 goods

under notification No. 178/77-CE

dated 18.6.77 has been explained.

2. The revised procedure is

based on the lines of rule 56-A of

the Central Excise Rules, 1944.

Consequently instructions of the

Board issued with reference to rule

56-A will also mutatis mutandis be

applicable here unless they are

inconsistent with the provisions of

notification No.201/79. Attention

is specification invited to the

instructions contained in the

Board’s letter F.No.211/11-M/77-CX.

6 dated 15.11.77, (as amended)

relating to issue of subsidiary

gate passes.

[C.B.E. & C. F.NO.223/22/78-CX.6,

dated 18.6.79.]

[Cir.No.22/79-CX.6]

PRESS NOTE

When excise duty under Tariff

Item 68 was increased from 2% to 5%

ad valorem in the 1977 Budget, all

excisable goods manufactured out of

goods falling under that item were

exempted from so much of the duty

of excise leviable on them as was

equivalent to the duty of excise

already paid under it. The

exemption was restricted to the

duty payable on the finished goods

when the duty paid on the "inputs"

was more than that on the finished

goods.

2. The Trade had been earlier

experiencing difficulties in

availing of the set-off of duty in

relation to those finished

excisable goods which had not been

notified under rule 56-A the

Central Excise Rules. The

difficulties were aggravated where

innumerable varieties of finished

excisable goods were being

manufactured and in the manufacture

of which goods falling under Tariff

Item 68 were used, not necessarily

in relation to any fixed formula,

but in a particular ratio that can

change from time to time and from

variety to variety.

Some of the industries that

had expressed difficulty on this

account were tyres, chemicals,

electrical manufactures and

grinding-wheels. On account of the

innumerable and products and the

varying ratios, with alternative

usages, manufacturers were furnish

it difficult and irksome to furnish

the "input" and "output" ratio that

would remain constant and e

acceptable to the Department.

For claiming set-off of duty

paid on Tariff Item 68 furnishing

on the ""input" - "output"" ratio

was necessary as at the time of

claiming the set-off while clearing

the finished goods the

manufacturers had to satisfy the

Central Excise Department about the

exact amount of set-off sought to

be claimed with reference to the

duty paying documents under which

the "input" had been received.

3. Government have given

considerable thought to alleviating

these difficulties. And, now, as

measure of facilitation the

procedure for claiming this

exemption has been substantially

simplified. Under the revised

notification No.201/79-C.E. issued

on 4.6.1977, the cumbersome "set-

off" procedure has been given up,

and a self contained procedure for

claiming the exemption has been

prescribed. This procedure is

basically on the lines of the

perform Credit System prescribed

under rule 56-A of the Central

Excise Rules, 1944."

(emphasis added)

With a view to explain the procedure obtaining under Rule 36-A, the learned counsel for the appellant brought to our notice Clause (VI) of sub-rule (3) of Rule 56-A of the Central Excise Rules, as it obtained prior to 1973 and as it obtains now i.e., as substituted by the 1973 Amendment:

Before Amendment?

(vi) Except to the extent provided

in the second proviso to sub-rule

(2), the credit allowed in respect

of any material or component parts

shall be utilised towards payment

of duty on the finished excisable

goods in the manufacture of which

such materials or component parts

are used or on the materials or

component parts themselves and no

part of such credit shall be

refunded in cash or by cheque.

After Amendment

(vi) (a) The credit of duty allowed

in respect of any material or

component parts may be utilised

towards payment of duty on any

finished excisable goods for the

manufacture of which such material

or component parts were permitted

to be brought into the factory

under sub-rule (2) or where such

material or components parts are

cleared from the factory as such,

on such material or component

parts.

(b) No part of such credit shall be

utilised save as provided in sub-

clause (a) or shall be refunded in

cash or by cheque."

(emphasis added)

The portions underlined by us clearly bring about the conceptual change brought about by the amendment. The correlation provided by the unamended clause (vi) has given way to a permission to utilise the credit (of duty paid on inputs) "towards payment of duty on any finished excisable goods for the manufacture of which such material....were permitted to be brought into the factory."

It is significant to note that the language employed in the main body of the notification, upon which strong reliance is placed by the Revenue, is schematically different from the unamended clause (vi) of Rule 56-A(3) (as would be evident from a reading together of the two provisions) whereas the language employed in clause (9) of the Appendix to the notification is in part material with the amended clause (vi). Be that as it may, if one reads only the first para of the notification, one may possibly agree with the Revenue but if one reads the entire notification including Rules 9 and 10 of the Appendix, the contention of the appellant commends itself as the only correct understanding. Not only Rule 9, even Rule 10] indicates, as pointed out above, the absence of a correlation between the inputs and the finished goods. The instructions of the Board do explain the background to Notification 201. (We must make it clear that we are not relying upon the Board’s instructions either as binding upon the Courts or as an aid to construction of the notification but only as explaining the background to the issuance of Notification 201.) The change in the language and content of clauses (vi) of sub-rule (3) of Rule 56-A in 1973 is equally relevant in this behalf. It explains why the concept of correlation - or the rule of set-off, as it is referred to in the Press-note was given up and a different method adopted. Clause (9) of appendix to Notification 201, it is significant to note, is in part material with clause (vi) of Rule 56-A(3) (as substituted in 1973). The practical difficulties in implementing the method in force prior to the issuance of Notification 201 and the object underlying the said notification (as also the amendment of clause (vi) of Rule 56-A(3) in 1973) also induce us to accept the appellant’s contention in preference to the Revenue’s contention.

By accepting the appellant’s contention, the object underlying the enactment is in no way defeated nor is the objective underlying the notification No.201 of 1979 defeated. The object underlying the notification is to prevent the cascading effect of duties if levied both on inputs and the finish goods. With a view to make the goods available at comparatively reasonable prices to the consumer, the duty paid on the inputs is deducted out of the duty payable on the finished goods. Acceptance of the appellant’s contention effectuates the said object whereas acceptance of the Revenue’s contention would tend to defeat the aforesaid objective in a case like the present one. It is true that the notification provides for an exemption and has to be strictly construed but it is equally well-settled that the exemption notifications, as to be construed reasonably having due regard to the language employed. It may also be noticed that both Rule 56-A and notification No.201 of 1979 are actuated which similar considerations and provide for broadly similar concessions. Indeed, that is how the Board has understood these two provisions.

Mr. Sridharan, learned counsel for the appellantmanufacturer, has made it clear that appellant is not asking for any transfer of credit to any other factory of the appellant. All that he wants is that the appellant be allowed to take credit of the entire duty paid on inputs (barely malt) received into its Rajahmundry factory as against the duty payable on the goods (Horlicks) cleared at Rajahmundry on payment of duty. This it is entitled to do.

For the reasons given above, we are of the opinion that the appellant is entitled to succeed in this appeal. The appeal is accordingly allowed in the above terms. The decision of the Tribunal impugned herein is set aside. There shall be no order as to costs.

Ask CaseMinister about Hmm Ltd. v. Collector of Central Excise, New Delhi

Your 24×7 legal assistant on WhatsApp answers with the judgments that apply, in English or Hindi. No signup needed.

Questions about this judgment, or a case like it?Ask on WhatsApp