IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 C.E.Appeal.No. 14 of 2004() --------------------------- ORDER.1147/2004 of CUSTOMS,EXCISE&SERVICE TAX APP.TRIBUNAL,BANGALORE .................... : APPELLANT. --------------------------- REZIA ALUMINIUM RE-ROLLING MILLS REP. BY ITS MANAGING PARTNER, N.BASHEER, INDUSTRIAL DEVELOPMENT PLOT, WEST HILL, CALICUT - 5. BY ADV. SRI.C.S.GOPALAKRISHNAN NAIR SMT.CHANDINI G.NAIR RESPONDENTS: ------------- THE COMMISSIONER OF CENTRAL EXCISE, CENTRAL REVENUE BUILDINGS, MANANCHIRA, CALICUT-1. BY ADV. SRI.S. PARAMESWARAN NAIR, ASST. S.G. THIS CENTRAL EXICISE APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - C. E. Appeal NO.14 of 2004 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of January, 2008. JUDGMENT C.N. Ramachandran Nair, J. This appeal is filed against the order of the Tribunal, wherein the Tribunal held that the excise duty payable at compounded rate vide Annexure D notification is retrospective. The appellant, a manufacturer of aluminium circles, claimed benefit of Annexure B notification dated 30.5.1997 which provided for payment of excise duty at compounded rate on aluminium circles, the diameter of which is 30” or less, at the rate of Rs.7,500/- per month. The notification provides for payment of excise duty at compounded rate at Rs.10,000/- per month, if diameter of the aluminium circle manufactured, is above 30”. The appellant claimed that the aluminium circle manufactured by them were at the diameter of less than 30” and started remitting excise duty at compounded rate, at the rate of Rs.7,500/- per month. This notification was in force from 1.6.1997. However, the basis of compounded levy was changed from size of product to the size of roller used in the machine, vide Annexure D notification dated 27.11.1997. It is provided in Annexure D that compounded levy of C.E.A.14/2004 -2- excise duty will be at the rate of Rs.7,500/- if the length of the roller is 30” or less. The notification further provides that if the length of roller is more than 30”, the compounded levy of duty is at the rate of Rs.10,000/- per month. When the appellant was called upon to pay duty for the period prior to 27.11.1997 based on Annexure D, the appellant contested the same successfully in first appeal, wherein it was held that Annexure D notification is only prospective and the appellant was liable to pay compounded levy of duty only at the rate provided in Annexure B until the date of Annexure D notification. However, the Tribunal, on appeal by the Department, reversed the order of the first appellate authority and held that the clarification issued by the Central Board says that Annexure D is only clarificatory. It is against this order, the appeal is filed by the appellants. 2. We have heard learned counsel appearing for the appellant and learned Asst. Solicitor General appearing for the respondent. 3. We are unable to uphold the order of the Tribunal, because we find that Annexure D is in no way a clarification of Annexure B. While Annexure B provides for compounded levy based on size of the product, Annexure D provides for compounded rate of duty based on the size of the roller used in the machine. Of course, the product size may depend on the roller size of the machine. This should have been noticed by the Central C.E.A.14/2004 -3- Board while issuing the first notification itself fixing the levy of duty based on size of the product and having accepted the size of the product manufactured by the appellant, the respondent has no right to demand differential rate of duty based on Annexure D which is not retrospective. In fact, there is no mention in Annexure D that it is issued in supersession of Annexure B and with retrospective effect. We have not been shown the clarification issued by the Central Board stating that Annexure D is retrospective in nature. Even if any such clarification is issued, we do not think that the same can be upheld, because if a notification is issued with retrospective effect, it should be done through the notification itself and not through clarificatory orders. The appellant has relied on the decision of the Supreme Court reported in Suchitra Components Ltd. v. Commissioner of Central Excise, Guntur (2007 (208) ELT 321 (SC)) wherein the Supreme Court held that a beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively. Since Annexure D is only prospective and since the levy under Annexure D on the appellant is more than the liability due under Annexure B notification, Annexure D cannot be applied retrospectively on the appellant for the manufacture and clearances made prior to the date of Annexure D. C.E.A.14/2004 -4- In the circumstances, we allow the appeal reversing the order of the Tribunal and restore the order of the first appellate authority. The appellant is entitled to refund of duty paid in excess of the rate payable under Annexure B, till 27.11.1997 with interest, if any. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ C.E.A.14/2004 -5- C.N. Ramachandran Nair & & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - . No. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 10th January, 2008. C.E.A.14/2004 -6-