ALCOBEX METALS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner is the manufacturer of pipes and tubes of copper and copper alloyes falling under tariff item No. 26-A (3) of the Central Excise & Salt Act, 1954. Upon examination of the gate passes of the petitioner company for the relevant period issued for clearing copper and copper alloys, tubes and pipes, it was noticed that for the purpose of calculating the auxiliary duty, incorrect method of calculation was adopted by the petitioner, which resulted in short levy of auxiliary duty. THE petitioner was issued notices to show cause as to why the short levied amount be not recovered. THE Assistant Collector, Customs & Central Excise, Jodhpur adjudicated upon the issue and rejecting the contentions of the petitioner, confirmed the demand made in the notices. THE Appellate Collector dismissed the appeal, albeit on different reasons. THE Central Govt. , however, by a detailed speaking and reasoned order dated 30. 11. 79 dismissed the revision petition submitted by the petitioner.

(2.) THE writ petition submitted by the petitioner against the orders passed by the Departmental Authorities was also dismissed by the learned Single Judge by the impugned order dated 13. 1. 92. THE petitioner has assailed these orders in this appeal.

(3.) THE learned counsel submitted that the expression used in clause 34 is "shall be levied". THE levy is different than the chargeable amount as calculated after refunds and exemptions are allowed. In terms of sub-clause (5) of clause 34, it has been provided that what provisions of the Central Excises Act and the rules made thereunder in relation to refunds and exemptions from duty so far as they apply in relation to levy and calculation of auxiliary duties will apply. Thus, clause 34 nowhere speaks of the provision of the amount which was charged. It only speaks of levy. Notification No. 61 also makes reference of so much of the auxiliary duty of excise leviable. Thus, the leviable with excise is being different than the charging of excise and this cannot be meant that the exemption is to be given after the charged amount is calculated in terms of notification No. 213/63. He has supported the findings of the three departmental authorities and the learned Single Judge.