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[2008]12 S.C.R. 76

MIS. SANDUR MICRO CIRCUITS LTD.

II.

COMMISSIONER OF CENTRAL EXCISE, BELGAUM

(Civil Appeal No. 7177 of 2005)

. AUGUST 13; 2008

[DR. ARIJIT PASAYAT. AND DR. MUKUNDAKAM

SHARMA, JJ.]

Central Excises and Salt Act, 1944 - s. 5A - Notification c under- Circular. issued by Central Board of Excise and Cus- ·

toms in direct conflict with the statutory Notification - Effectiveness of the circular- Held:· The circular cannot take away the effect of the Notification.

Circular No.42 of 1997 dated 19-9-1997 issued by the 0 Central Board of Excise and Customs was in direct conflict with a Notification statutorily issued under s.5A(1) of the Ceratral Excises and Salt Act, 1944, viz. No. 2/95-CE dated 4-1-1995 as ~e.~.~d ... py NQtificetions Nos. 21/97- CE dated 11-4-1997: 100/95-CE dated 2-6-1995 and 7/96- E CE dated 1-7-1996.

. The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) held that the Notification had overriding effect over the Circular and hence the assessee's claim of liability to pay 50% of th~ aggregated customs duty on F the goods cleared to the Domestic Tariff Area (DTA) was not legally tenable.

ln.the instant appeals, the asses.see•appellants sub- mitted that the Circular having been issued on basis of .

G representations made by various assessees, the Notification would riot stand on the way of relief being granted to them on basis of the said circular.

Dismissing the appeals, the Court

H 76

' , • • .r • • • .· . . .. .

' . . ·; i .•

MALWA COTTON & SPINNING MILLS l:TD. v. VIRSA 77

SINGH SIDHU & ORS. [DR. ARIJIT PASAYAT, J.] ).

HELD: A Circular cannot take away the effect .of No- A . ' tifications statutorily issued. In fact, in certain cases it hasbeen held that the Circular cannot whittle down the .Exemption Notification and restrict the scope of the Exeinption Notification or hit it down. In other words it was held that by issuing a circular, a new condition thereby restricting the scope of the exemption or restricting or whittling

~ it down, ca.nnot be imposed. The principle is applicable .

l to the instant cases also, though the controversy is of different nature. [Para 5] [78, E-F]

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 7177 c

of 2005

From the final Judgment and Order No. 1173/2005 dated 19.7.2005 of the Customs, Excise and Service Tax Appellant Tribunal, Bangalore in Appeal No. E/1139/2002 0

WITH y

C.A. No. 5025 & 5024 of 2008 & 6897 of 2005

A.R. Madhav rao, Monish Panda and M.P. Davanath for

te Appellant.

Navin Prakash and B. Krishna Prasad for the Respondent.

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Leave granted in SLP (C) Nos.

~ 16719 of 2006 and 16947 of 2006.

2. In all these appeals common questions are involved and are directed against the judgment and final order passed by the Customs, Excise and Service Tax Appellate Tribunal (in short G the Tribunal). Since in appeals filed by the appellants common A question of law is involved, there is no need to elaborately deal with .the factual aspects. Question is the effect of a circular issued by Central Board of Excise and Custom (in short the . 'Board') i.e. Circular No. 42 of 1997 dated 19.9.1997. The H

SANDUR MICRO CIRCUITS V. C. C. E, BELGAUM 77

SUPREME COURT REPORTS

[2008] 12 S.C.R.

I 'i=

A C EST AT held that the Notification No. 2/95-C E dated 4.1 .1995 .{

as amended by Notifications Nos. 21 /97 -CE dated 11.4.1997. 100/95-CE dated 2.6.1995 and 7/96-CE dated 1.7.1996 shall have overriding effect over the Circular. It held that there is no manner of doubt that the appellant's claim of liability to pay 50% 8 of the aggregated customs duty on the goods cleared to the

Domstic Tariff Area (in short the 'DTA') is not legally tenable. It

)-- was held that the Circular was in direct conflict with the Notification No. 2/95. t'

3. Learned counsel for the appellant in each case submitc ted that the Circular was issued on the basis of representations made by various asessees and therefore the Notification cannot stand on the way of relief being granted.

4. Learned counsel for the respondent on the other hand

submited that the Notificatioh which is statutorily issued has overriding effect because the Notifications are isued in exercise of powers conferred by sub-section (1) of Section 5A of the Central Excises and Salt Act, 1944 (in short the 'Act').

~ t::

5. The issue relating to effectiveness of a Circular con- E trary to a Notification statutorily issued has been .examined by this Court in several cases. A Circular cannot take away the effect of Notifications statutorily issued. In fact in certain cases it has been held that the Circular cannot whittle down the Exemption Notification and restrict the scope of the Exemption

F Notification or hit it down. In other words it was held that by issuing a circular a new condition thereby restricting the scope of

J._ the exemption or restricting or whittling it down cannot be im- posed. The principle is applicable to the instant cases also, though the controversy. is of different nature.

6. The appeals fail and are dismissed.

B.B.B.

Appeals dismissed. ;....