M/S. Needle Industries (India) Pvt. Ltd vs Commissioner Of Central Excise, Salem
- CitationAppeal No.83/2010-S.T.[SLM], dated 23.06.2010 passed by the Commissioner of Central Exc
Ratio decidendi
The rule this decision rests on
Where a subordinate legislation amends an earlier notification by substituting a higher figure in place of a lower one, and the amendment is silent on its temporal operation, the substitution takes effect as a beneficial enlargement of the earlier notification and cannot be read as prospective only, since no presumption of prospectivity attaches to a beneficial substitution; the amended benefit therefore extends to claimants covered by the notification as originally issued.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.83/2010-S.T.[SLM], dated 23.06.2010 passed by the Commissioner of Central Excise (Appeals), Salem]
M/s. NEEDLE INDUSTRIES (INDIA) PVT. LTD. APPELLANT
Versus
COMMISSIONER OF CENTRAL EXCISE, SALEM RESPONDENT
Appearance:
For the Appellant Shri R. Janardhanan Pillai, Cons.
For the Respondent Shri R. Subramaniyan, AC (AR)
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 09-10-2015
FINAL ORDER NO.
When Revenue restricted the refund to the appellant to 2% of FOB in terms of Notification No.17/2008-ST, dated 01.04.2008, although, Notification No.33/2008, dated 07.12.2008 expanded the percentage to 10% by substitution of the words 10% in place of 2% in the previous notification, appellant has been aggrieved.
2. It is submission of learned consultant for appellant today that substitution is the convenient mode for the amendment of the subordinate legislation, which is the law laid down by apex court in the case of Government of India Vs Indian Tobacco Association reported in 2005 (187) E.L.T.162 (S.C.). He submits that had legislature intended that the benefit of higher percentage shall be denied to the claimant, they should have specifically stated so. But that is not so in the notification. In such circumstances, the appellant cannot be denied benefit of the substitution notification.
2. Revenue supports the Adjudication order.
3. Heard both sides and perused the records.
4. Learned counsel is correct to say that principal legislation and subordinate legislation operate within their scope. Subordinate legislations are commonly amended by substitution of certain words or figures. By substitution, subordinate legislation do not cause anomaly. It is true that if the subordinate legislation had intended that the benefit of 10% shall be allowed only from the date of substitution through Notification dated 07.12.2008, they would have expressly stated that the notification shall have prospective effect. But that is not done. Therefore, there cannot be presumption of prospective effect since substitution has a beneficial grant. Reliance of the appellant on the decision in Indian Tobacco Association (supra) is appropriate for the incentive granted to the exporting sector. When the subordinate legislation takes recourse to the process of substitution that enlarges the scope of the benediction of the notification. Therefore, it cannot be interpreted to be a notification curtailing benefit of those who are beneficiary thereof. The expanded scope of the notification covers the vision of the legislature to boost the export scheme. Therefore, appeal is allowed.
(Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 12-10-2015
DRAFT Remarks
I II III
Date of dictation 08.10.2015
Draft Order - Date of typing 10.10.2015
Fair Order Typing 12.10.2015
Date of number and date of dispatch 13.10.2015
3 ST/00568/2010
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