COLLECTOR OF CENTRAL EXCISE Vs. SHIRLEY DYERS

JUDGEMENT

(1.) IN this appeal filed by the Revenue, the matter relates to the rate of duty under Additional Duties of Excise (Goods of Special Importance) Act, 1957. The respondents, M/s. Shirley Dyers were engaged among others in the processing of cotton corudray. They had filed a revised classification list effective from 25 -10 -1994 in which they claimed the lower rate of additional excise duty at 5% while under the earlier approved classification list they were paying the duty at the rate of 10% Adv. Demand was raised for the period 26 -10 -1994 to 20 -2 -1995 and the matter adjudicated by the Asstt. Commissioner of Central Excise, who confirmed the duty. On appeal, the Commissioner of Central Excise (Appeals) referred to tariff rate under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 wherein the tariff rate of duty in respect of woven pile fabrics, chewllie fabrics and toughened textile fabrics of cotton classifiable under Sub -heading No. 5801.20 was 5% Adv. Under Notification No. 109/86 -C.E., dated 27 -2 -1986 the applicable rate was as on similar product in terms of Notification No. 33/94 -C.E., dated 1 -3 -1994 and when so calculated the rate of duty came to 10% Adv. The appellate authority observed that the extra rate under exemption notification could not be more than the tariff rate and he held that the assessee were entitled to pay additional excise duty at the rate of 5% Adv.

(2.) SHRI R.S. Sangia, JDR, referred to the provisions of law under which the Central Government was empowered to fix a rate higher than the tariff rate by virtue of a notification.

(3.) SHRI J.S. Agarwal, Advocate, submitted that the Notification No. 33/94 -C.E., dated 1 -3 -94 was not issued in terms of those powers, as referred to by the DR and was issued as an exemption notification under Section 5A of the Central Excise Act, 1944. He also referred to the Supreme Court's decision in the case of Indian Express Newspaper v. Union of India - 1985 (4) ECC 11 (SC) and in particular invited to the observations at page 147 of the judgment. He also referred to the Tribunal's Misc. Order No. 46/97 -C.E., dated 5 -6 -1997 in the case of MA. Exports v. Collector of Customs, Bombay.