ALCOBEX METALS P LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner M/s Alcobex Metals (P) Ltd., Jodhpur, is engaged in the manufacture of copper and copper alloys pipes and tubes from the crude copper and copper alloys falling under Tariff Item No. 26 -A (3) of the Central Excise and Salt Act, 1944. The petitioner purchased crude copper and copper alloys for the manufacturing of pipes and tubes, for which excise duty and auxilliary duty was paid. The Superintendent, Central Excise M.U.R. Jodhpur, on examination of the gatepasses of the petitioner company for the period since 1 -10 -1975 to 17 -6 -1977, issued for clearing the copper and copper alloys tubes and pipes, noticed that wrong method of calculating the auxiliary duty has been applied by the petitioner, which has resulted in a short levy of auxilliary duty amounting to Rs. 7,60,106.81 p. The Superintendent, thereafter, issued four Show Cause Notices/Demand Notices calling upon the petitioner to show cause why the short - levied amount, mentioned in the notices/Demand notices, should not be recovered from the petitioner. These notices are for the period from 1 -10 -1975 to 31 -3 -1976,1 -4 -1976 to 21 -4 -1976, 18 -6 -1976 to 31 -3 -1977 and 1 -4 -77 to 17 -7 -1977. The notice relating to the period from 18 -6 -1976 to 31 -3 -1977 was later on modified by issuing a corrigendum. The petitioner filed the reply to the Show Cause Notices/Demand Notices and the matter was ultimately adjudicated by the Assistant Collector, Customs and Central Excise, Jodhpur, by its order dated April 15, 1978, after giving an opportunity of hearing to the petitioner. The Assistant Collector confirmed the demand raised in these four notices by the Superintendent amounting to Rs. 7,60,106.81 p. Dissatisfied with the order dated 5 -4 -1978, passed by the Assistant Collector, Customs and Central Excise, Jodhpur, the petitioner preferred an appeal before the Appellate Collector, Central Excise and Customs, New Delhi, who, by his order dated April 26, 1979, dismissed the appeal filed by the petitioner -appellant. Aggrieved with the order dated April 26, 1979, rejecting the appeal, filed by the appellant, the petitioner -appellant preferred a revision petition before the Central Government and the Central Government, by its order dated April 26,1979, dismissed the revision petition, filed by the petitioner. It is against this order that the petitioner has preferred this writ petition.

(2.) THE short point, which requires consideration in the present case is: whether for the purpose of calculating the auxilliary duty leviable on copper and copper alloys, falling under Item 26 -A (3), the petitioner was entitled for set -off on basic duty already paid by it? For answering this question, three Notifications, issued by the Central Government viz., Notification No. 213/63 dated 28 -12 -63, No. 127/75 dated 12 -5 -75 and No. 133/75 dated 12 -5 -75 are necessary to be taken note of.

(3.) NOTIFICATION No. 127/75 -CE dated 12 -5 -1975 exempts copper and copper alloys falling under Item No 26 -A so much of the auxilliary duty leviable as in excess of 75% of the duty leviable under the Central Excise Act read with any Notification for the time being in force, issued under the said Act or the Rules made thereunder.