M/S. I.O.C.L. Vs COMMISSIONER OF CENTRAL EXCISE, VADODARA
Bench: A.K. PATNAIK,ANIL R. DAVE
Case number: C.A. No.-004530-004532 / 2005
Diary number: 13206 / 2005
Advocates: M. P. DEVANATH Vs
B. KRISHNA PRASAD
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4530-4532 OF 2005
M/s Indian Oil Corporation Ltd. … Appellant
Versus
Commissioner of Central Excise, Vadodara … Respondent
WITH
CIVIL APPEAL NO.8048 OF 2004
M/s Indian Oil Corporation Ltd. … Appellant
Versus
Commissioner of Central Excise, Lucknow … Respondent
J U D G M E N T
A. K. PATNAIK, J.
CIVIL APPEAL NOs. 4530-4532 OF 2005:
These are appeals under Section 35L (b) of the Central
Excise Act, 1944 against the order dated 15.03.2005 of the
Customs, Excise and Service Tax Appellate Tribunal, West
Zonal Bench, Mumbai, (for short “the Tribunal”).
2. The facts very briefly are that the appellant produces
inter alia Reduced Crude Oil (for short “RCO”). By
Notification No. 75/84-CE dated 01.03.1984, the Central
government in exercise of its powers under Sub-Rule 1 of
Rule 8 of the Central Excise Rules, 1944 (for short “the
Rules”) exempted goods described in Column 3 of the table
annexed to the notification from so much of the duty of
excise as is specified in the notification subject to the
intended use, or the conditions, if any, laid down in Column
5 of the table annexed to the notification. One of the goods
exempted from excise duty by the notification was RCO, if
produced only from indigenous crude oil subject to intended
use as fuel for generation of electrical energy by electricity
undertakings owned or controlled by the Central
Government or any State Government or any State
Electricity Board or any local authority or any licensee
under Part-II of the Indian Electricity Act, 1910 except those
who produce electrical energy not for sale but for their own
consumption or for supply to their own undertakings. The
proviso in the notification stated two conditions subject to
which the exemption was granted and one of the conditions
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was that where the intended use is elsewhere than in the
factory of production, the procedure set out in Chapter X of
the Rules is followed. Rule 192 in Chapter X of the Rules
provided inter alia that where the Central Government has
by notification under Rule 8 sanctioned the remission of
duty on excisable goods other than salt used in a specified
industrial process and it is necessary for this purpose to
obtain an excise registration certificate, he should submit
the requisite application along with the proof of payment of
the registration fee and shall then be granted a registration
certificate in the proper form. Rule 192 further provided that
the concession shall, unless renewed by the Collector, cease
on the expiry of the registration certificate.
3. The Ahmedabad Electricity Company Ltd. had
obtained a registration certificate in Form CT-2 under Rule
192 of Chapter X of the Rules and on the strength of such
registration certificate, purchased RCO from the appellant
availing the exemption from excise duty under Notification
No. 75/84 dated 01.03.1984 (for short ‘the exemption
notification’). The registration certificate obtained by the
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Ahmedabad Electricity Company Ltd. expired on 31.12.1995
and a fresh registration was granted in its favour on
26.06.1996. After issuing two show-cause notices, the
Assistant Commissioner of Central Excise passed two orders
demanding excise duty of Rs. 32,35,485/- from the
appellant for RCO supplied to the Ahmedabad Electricity
Company Ltd. during the period 01.01.1996 to 25.06.1996
on the ground that the said company did not have a
registration certificate in Form CT-2 under Rule 192 of
Chapter X of the Rules during this period and, therefore, the
RCO supplied by the appellant to the Ahmedabad Electricity
Company Ltd. during this period was not exempt from
excise duty. The appellant paid the excise duty and
subsequently applied for refund contending that the
registration certificate in Form CT-2 had been obtained by
the Ahmedabad Electricity Company Ltd. on 26.06.1996.
The refund claims were rejected by the Assistant
Commissioner. Thereafter, the appellant filed appeals
before the Commissioner of Central Excise (Appeals) who
confirmed the demands of excise duty for the period from
01.01.1996 to 25.06.1996. The appellant then filed three
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appeals before the Tribunal against the orders of
Commissioner of Central Excise (Appeals) confirming
demand and the order rejecting the refund claim. By the
impugned order, the Tribunal dismissed the appeals saying
that as the statutory requirement of conditional exemption
notification had not been complied with by the appellant it
was not entitled to the exemption benefit.
4. Mr. Alok Yadav, learned counsel for the appellant,
submitted that the Tribunal failed to appreciate that the
RCO supplied by the appellant to Ahmedabad Electricity
Company Ltd. was in fact used as fuel for generation of
electrical energy and therefore the appellant was entitled to
the benefit of the exemption of excise duty under the
exemption notification. He cited the decision of this Court
in M/s Chunni Lal Parshadi Lal v. Commissioner of Sales
Tax, U.P., Lucknow [(1986) 2 SCC 501] wherein it was held
that a dealer can prove by any way other than the way
contemplated by Rule 12A of the U.P. Sales Tax Rules, 1948
that the goods purchased from him were for resale.
According to Mr. Yadav, the registration certificate in Form
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CT-2 is not the only way to prove that the goods sold by the
appellant to the Ahmedabad Electricity Company Ltd. were
used as fuel for generation of electricity. He also relied on
Commissioner of Customs (Imports), Mumbai v. Tullow India
Operations Ltd. [(2005) (189) ELT 401 (SC)[ wherein this
Court held that ONGC being a government company would
get the requisite exemption, subject, of course, to its
fulfilling the condition of obtaining the essentiality
certificate. He argued that the appellant being a
government company should not be denied the exemption
on a technical ground that there was no registration
certificate during the period 01.01.1996 to 25.06.1996.
5. Mr. Anup Chaudhary, learned senior counsel
appearing for the respondent, on the other hand, submitted
that the exemption notification stipulated in the proviso the
conditions under which the exemption from excise duty
would be available and if the conditions were not fulfilled,
the exemption would not be available to the manufacturer.
He submitted that one of the conditions was that where the
goods were to be used in a place other than in the factory of
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production, the procedure set out in Chapter X of the Rules
is to be followed. He submitted that the procedure laid
down in Rules 192 to 196 BB in Chapter X of the Rules,
therefore, have to be followed, and if the procedure is not
followed in any case, the exemption cannot be granted
under the exemption notification. He submitted that since
under Rule 192, the Ahmedabad Electricity Company Ltd.
was required to obtain a registration certificate in Form CT-
2 and the said company did not obtain a certificate for the
period 01.01.1996 to 25.06.1996, RCO supplied by the
appellant to the Ahmedabad Electricity Company Ltd.
during this period was exigible to excise duty. He cited the
judgement of the Constitution Bench of this court in
Commissioner of Central Excise, New Delhi v. Harichand Shri
Gopal [2010 (260) ELT 3 (SC)] in which it has been held
that if a party wants remission of duty, he has to follow
certain prerequisites, the object of which is to see that the
goods are not diverted or utilised for some other purpose
under the guise of the exemption notification and, therefore,
a plea that the goods were meant for intended use specified
in the exemption notification has to be rejected.
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6. The question whether it was enough to prove to the
satisfaction of the Central Excise Officer that the goods are
for the intended use specified in the notification of
exemption or whether in addition the procedure laid down
in Rule 192 of Chapter X of the Rules was also to be
complied with for availing concession under the exemption
notification was raised before this Court in Thermax Private
Limited v. The Collector of Customs (Bombay), New Customs
House [1992 (61) ELT 352 (SC)] = [(1990) 4 SCC 440] and a
two-Judge Bench of this Court held that the possession of a
license or production of a C-2 certificate as provided in Rule
192 of Chapter X of the Rules enables the applicant to
secure the necessary concession and that the entitlement to
the concession will depend on whether the purchaser is the
holder of a L-6 license (or C-2 certificate) or not. These
observations made in Thermax Private Limited v. The
Collector of Customs (Bombay), New Customs House (supra)
were held by a two-Judge Bench of this Court in Collector of
Customs, Bombay v. J.K. Synthetics Limited [1996 (87) ELT
582 (SC)] = [(1997) 10 SCC 224] as not laying down
principle and held to be limited to eligibility for concession
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under Rule 192 of the Rules. In the aforesaid decision in
the case of Collector of Customs, Bombay v. J.K. Synthetic
Limited (supra) this Court took the view that where there
was evidence on record that show the intended use of the
material, the benefit of exemption could be granted. In a
subsequent decision in the case of Collector of Central
Excise, Jaipur v. J.K. Synthetics [2000 (120) ELT 54 (SC)] =
[(2000) 10 SCC 393] a three-Judge Bench of this Court took
the view that if there was substantial compliance of the
procedure laid down in Chapter X of the Rules, exemption
could be granted. In the case of Commissioner of Central
Excise, New Delhi v. Hari Chand Shri Gopal [2010 (260) ELT
3 (SC)] = [(2011) 1 SCC 236] a Constitution Bench of this
Court considered the decisions of this Court in Thermax
Private Limited v. The Collector of Customs (Bombay), New
Customs House (supra) and Collector of Central Excise,
Jaipur v. J.K. Synthetics (supra) and held that a provision
for exemption, concession or exception, as the case may be,
has to be construed strictly and if the exemption is available
only on complying certain conditions, the conditions have to
be complied with. In the aforesaid decision, the
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Constitution Bench further held that detailed procedures
have been laid down in Chapter X of the Rules so as to curb
the diversion and utilization of goods which are otherwise
excisable and the plea of substantial compliance or intended
use therefore has to be rejected.
7. When we strictly construe the exemption notification in
this case, we find that the proviso in the exemption
notification reads as under:
Provided that where any such exemption is subject to the intended use, the exemption in such case shall be subject to the following conditions namely:-
(i) That it is proved to the satisfaction of an officer not below the rank of the Assistant Collector of Central Excise that such goods are used for the intended use specified in Column (5) of the said Table: and
(ii) Where such use is elsewhere than in the factory of production, the procedure set out in Chapter X of the Central Excise Rules, 1944, is followed.
Thus, the proviso makes it clear that for availing the
exemption two conditions must be satisfied: First, that it is
proved to the satisfaction of the excise officer that the goods
are used for intended use specified in Column (5) of the
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Table annexed to the exemption notification and second,
where such use is elsewhere than in the factory of
production, the procedure set out in Chapter X of the Rules
is followed. We cannot, therefore, accept the contention of
the learned counsel of the appellant that if the first
condition is satisfied, i.e. it is proved to the satisfaction of
the Central Excise officer that the goods are used for the
intended use, the exemption has to be granted. In our
considered opinion, unless the second condition is also
satisfied, i.e. the procedure set out in Chapter X of the Rules
is followed where the use of the goods is elsewhere than in
the factory of production, the exemption cannot be granted
under the exemption notification.
8. In the facts of the present case, the RCO was not to be
used in the factory of the appellant but at the place of
generation of electricity by the Ahmedabad Electricity
Company Ltd. Hence, the second condition laid down in the
proviso was also to be complied with. Rule 192 of Chapter
X of the Rules is quoted hereinbelow:
“RULE 192. Application for concession.— Where the Central Government has, by notification
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under rule 8, or section 5A of the Act, as the case may be, sanctioned the remission of duty on excisable goods other than salt, used in a specified industrial process, any person wishing to obtain remission of duty on such goods, shall make application to the Collector in the proper Form stating the estimated annual quantity of the excisable goods required and the purpose for and the manner in which it is intended to use them and declaring that the goods will be used for such purpose and in such manner. If the Collector is satisfied that the applicant is a person to whom the concession can be granted without danger to the revenue, and if he is satisfied, either by personal inspection or by that of an officer subordinate to him that the premises are suitable and contain a secure store-room suitable for the storage of the goods, and if the applicant agrees to bear the cost of such establishment as the Collector may consider necessary for supervising operation in his premises for the purposes of this Chapter, the Collector may grant the application, and the applicant shall then enter into a bond in the proper Form with such surety or sufficient security, in such amount and under such conditions as the Collector approves. Where, for this purpose, it is necessary for the applicant to obtain an Excise registration certificate, he shall submit the requisite application along with the proof for payment of registration fee and shall then be granted a registration certificate in the proper Form. The concession shall, unless renewed by the Collector, cease on the expiry of the registration certificate:
Provided that, in the event of death, insolvency or insufficiency of the surety, or where the amount of the bond is inadequate, the Collector may, in his discretion, demand a fresh bond; and may, if the
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security furnished for a bond is not adequate, demand additional security.”
The language of Rule 192 of Chapter X of the Rules is clear
that for availing concession from excise duty on excisable
goods used in a specified industrial process, a person must
obtain a registration certificate from the Collector and that
“the concession shall, unless renewed by the Collector,
cease on the expiry of the registration certificate”.
Admittedly, the registration certificate of the appellant
expired on 31.12.1995. Hence, the exemption granted
under the notification ceased on 31.12.1995. The fresh
registration certificate in favour of the Ahmedabad
Electricity Company Ltd. was issued on 26.06.1996 and we
find on a reading of the copy of the CT-2 certificate annexed
as Annexure P5 that the registration certificate was not for
any period prior to 26.06.1996. As the procedure laid down
in Rule 192 of Chapter X of the Rules has not been complied
with, the appellant is not entitled to avail the exemption of
excise duty under the exemption notification during the
period from 01.01.1996 to 25.06.1996.
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9. The appeals are, therefore, dismissed but there shall
be no order as to costs.
CIVIL APPEAL NO.8048 OF 2004:
This is an appeal under Section 35L (b) of the Central
Excise Act, 1944 against the order dated 02.07.2004 of the
Customs, Excise and Service Tax Appellate Tribunal, New
Delhi, (for short “the Tribunal”).
2. The facts very briefly are that the appellant produces
inter alia Naphtha. By Notification no. 3/2001-CE dated
01.03.2001 (for short “the exemption notification”) issued
under Section 5A of the Central Excise Act, 1944 (for short
“the Act”) the Central Government exempted inter alia
Naphtha cleared for the intended use in the manufacture of
fertilizers from excise duty subject to relevant conditions
specified in the annexure to the notification. In the
annexure to the exemption notification, one of the
conditions specified was that where such use is elsewhere
than in the factory of production, the exemption shall be
allowed if the procedure set out in the Central Excise
(Removal of Goods at Concessional Rate of Duty for
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Manufacture of Excisable Goods) Rules, 2001 (for short “the
2001 Rules”) is followed. Rule 3(1) of the 2001 Rules
provided that a manufacturer who intends to receive subject
goods for specified use at concessional rate of duty, shall
make an application in quadruplicate in the Form at
Annexure-1 to the jurisdictional Assistant Commissioner or
Deputy Commissioner of Central Excise, as the case may
be. Indo Gulf Corporation Limited placed an order on
16.07.2001 on the appellant for supply of Naphtha for the
purpose of manufacture of fertilizers and furnished a letter
to the appellant saying it has made an application to the
Commissioner of Excise for authorization for dispatch of one
rake of Naphtha. The appellant supplied 2241.908 MT of
Naphtha to Indo Gulf Corporation Limited and while
clearing the aforesaid Naphtha from its factory did not make
any payment of Central Excise duty. The Commissioner of
Central Excise issued show cause notice dated 13.06.2002
to the appellant and after considering the reply of the
appellant passed the order dated 30.09.2002 confirming the
demand of duty amounting to Rs. 44,71,902/- on the
Naphtha cleared on 16.07.2001 and also imposed a penalty
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equivalent to the duty amount. The appellant filed an
appeal against the order of the Commissioner before the
Tribunal and the Tribunal held in the impugned order that
under the exemption notification, the appellant could be
exempted from duty on Naphtha supplied to the
manufacturer of fertilizer only if the conditions specified in
the exemption notification are fulfilled. The Tribunal further
held that one of the conditions specified in the exemption
notification was that where the goods were to be used
elsewhere than in the factory of production, the exemption
would be allowed if the procedure set out in the 2001 Rules
was followed and in this case Rule 3(1) of 2001 Rules has
not been followed, inasmuch as, the manufacturer, namely,
Indo Gulf Corporation Limited had not submitted
application in the form at Annexure-1 for obtaining Naphtha
without payment of duty and had only cleared the Naphtha
without payment of duty on the basis of a letter dated
16.07.2001 wherein it was mentioned that it has submitted
its application to the Commissioner for issuance of
authorization for dispatching one rake of Naphtha. The
Tribunal held that as the condition of the exemption
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notification has not been complied with, the appellant was
not entitled to clear naphtha without payment of excise duty
and accordingly sustained the demand of excise duty. The
Tribunal also held that as the appellant had cleared
Naphtha without payment of duty and without getting the
requisite Annexure-1 from its customer, penalty was also
imposable on the appellant, but on the facts and
circumstances of the case the penalty was excessive. The
Tribunal accordingly reduced the penalty to Rs.1,00,000/-
only.
3. Mr. Alok Yadav, learned counsel for the appellant,
submitted that as the Naphtha supplied to Indo Gulf
Corporation Limited was in fact used for manufacture of
fertilizer, the appellant was entitled to the benefit of
exemption notification. He further submitted that as the
appellant was a government company, he should not be
denied the exemption on a technical ground that the
application at Annexure-1 was not submitted to the
authorities by the manufacturer of fertilizer as provided in
Rule 3(1) of the 2001 Rules.
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4. Mr. Anup Chaudhary, learned senior counsel
appearing for the respondent, on the other hand, submitted
that one of the conditions specified in the exemption
notification was that where the goods were to be used in the
place other than in the factory of production, the procedure
set out in the 2001 Rules has to be followed and in this case
the procedure set out in Rule 3(1) of the 2001 Rules has not
been followed.
5. We have considered the submissions of the learned
counsel for the parties and we find that by the exemption
notification the Central Government exempted the excisable
goods from duty “subject to the relevant conditions specified
in the Annexure” to the exemption notification. Paras 3 and
4 in the Annexure to the exemption notification read as
follows:
“3. The exemption shall be allowed if it has been proved to the satisfaction of an officer not below the rank of the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction that such goods are cleared for the intended use specified in column 3 of the table.
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4. Where such use is elsewhere than in the factory of production, the exemption shall be allowed if the procedure set out in the Central Excise (Removal of Goods at Concessional Rate of Duty for manufacture of Excisable Goods) Rules, 2001 is followed.”
It will be clear from Para 3 of the Annexure to the exemption
notification that the exemption shall be allowed if it has
been proved to the Central Excise Officer having jurisdiction
that the goods are cleared for the intended use specified in
column 3 of the table. In addition to this condition, there is
a further condition in Para 4 of the Annexure to the
exemption notification that where the intended use is
elsewhere than the factory of production, the exemption
shall be allowed if the procedure set out in the 2001 Rules
is followed. We, therefore, do not accept the submission of
Mr. Yadav that as the Naphtha cleared from the factory of
the appellant has been used for manufacture of fertilizer,
the appellant would be entitled to exemption even if the
condition specified in Para 4 of the Annexure to the
exemption notification is not followed.
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6. The condition specified in Para 4 in the Annexure to
the exemption notification states that where the intend use
is elsewhere than in the factory of production, the
exemption shall be allowed if the procedure set out in the
2001 Rules is followed. In the facts of this case, the
Naphtha produced by the appellant in its factory was to be
used for the manufacture of fertilizer elsewhere than in its
own factory, i.e. in the factory of Indo Gulf Corporation
Limited. Hence, the exemption could be allowed only if the
procedure set out in the 2001 Rules was followed.
7. Rule 3(1) of the 2001 Rules is extracted hereinbelow:
“Rule 3. Application by the manufacturer to obtain the benefit. – (1) A manufacturer who intends to receive subject goods for specified use at concessional rate of duty, shall make an application in quadruplicate in the Form at Annexure-1 to the jurisdictional Assistant Commissioner or Deputy Commissioner of Central Excise, as the case may be (hereinafter referred to as the said Assistant Commissioner or Deputy Commissioner).”
Rule 3(1) makes it amply clear that the manufacturer, who
intends to use subject goods for specified use at
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concessional rate of duty, shall make an application in
quadruplicate in the Form at Annexure-1 to the
jurisdictional Assistant Commissioner or Deputy
Commissioner of Central Excise, as the case may be.
Admittedly, no such application was made by Indo Gulf
Corporation Limited in the form at Annexure-1 to the
jurisdictional Assistant Commissioner or Deputy
Commissioner of Central Excise. As the procedure set out
in the 2001 Rules has not been followed, the appellant was
not entitled to exemption on the Naphtha cleared from its
factory for supply to Indo Gulf Corporation Limited for
manufacture of fertilizer.
8. We, therefore, do not find any merit in the appeal and
we accordingly dismiss the same. There shall be no order
as to costs.
.……………………….J. (A. K. Patnaik)
………………………..J. (Anil R. Dave) New Delhi, January 13, 2012.
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