Judgment:
B.R. Arora, J.
1. The petitioner M/s Alcobex Metals (P) Ltd., Jodhpur, is engaged in the manufacture of copper and copper alloys pipes and tubes from the crude copper and copper alloys falling under Tariff Item No. 26-A (3) of the Central Excise and Salt Act, 1944. The petitioner purchased crude copper and copper alloys for the manufacturing of pipes and tubes, for which excise duty and auxilliary duty was paid. The Superintendent, Central Excise M.U.R. Jodhpur, on examination of the gatepasses of the petitioner company for the period since 1 -10-1975 to 17-6-1977, issued for clearing the copper and copper alloys tubes and pipes, noticed that wrong method of calculating the auxiliary duty has been applied by the petitioner, which has resulted in a short levy of auxilliary duty amounting to Rs. 7,60,106.81 p. The Superintendent, thereafter, issued four Show Cause Notices/Demand Notices calling upon the petitioner to show cause why the short- levied amount, mentioned in the notices/Demand notices, should not be recovered from the petitioner. These notices are for the period from 1-10-1975 to 31-3-1976,1-4-1976 to 21-4-1976, 18-6-1976 to 31-3-1977 and 1-4-77 to 17-7-1977. The notice relating to the period from 18-6-1976 to 31-3-1977 was later on modified by issuing a corrigendum. The petitioner filed the reply to the Show Cause Notices/Demand Notices and the matter was ultimately adjudicated by the Assistant Collector, Customs and Central Excise, Jodhpur, by its order dated April 15, 1978, after giving an opportunity of hearing to the petitioner. The Assistant Collector confirmed the demand raised in these four notices by the Superintendent amounting to Rs. 7,60,106.81 p. Dissatisfied with the order dated 5-4-1978, passed by the Assistant Collector, Customs and Central Excise, Jodhpur, the petitioner preferred an appeal before the Appellate Collector, Central Excise and Customs, New Delhi, who, by his order dated April 26, 1979, dismissed the appeal filed by the petitioner-appellant. Aggrieved with the order dated April 26, 1979, rejecting the appeal, filed by the appellant, the petitioner-appellant preferred a revision petition before the Central Government and the Central Government, by its order dated April 26,1979, dismissed the revision petition, filed by the petitioner. It is against this order that the petitioner has preferred this writ petition.
2. The short point, which requires consideration in the present case is: whether for the purpose of calculating the auxilliary duty leviable on copper and copper alloys, falling under Item 26-A (3), the petitioner was entitled for set-off on basic duty already paid by it? For answering this question, three Notifications, issued by the Central Government viz., Notification No. 213/63 dated 28-12-63, No. 127/75 dated 12-5-75 and No. 133/75 dated 12-5-75 are necessary to be taken note of.
3. Notification No. 213/63 dated 28-12-63, as amended time to time, exempts the pipes and tubes of copper and copper alloys falling under sub-item (3) of Item No 26-A of Schedule-I to the Central Excise and Salt Act, 1944, in the manufacture of which duty paid copper or copper alloys in any crude form or manufactures thereof are used, from the payment of so much of excise duty leviable thereon as is equivalent to the duty of excise, or, as the case may be, the additional duty leviable under Section 2A of the Indian Tariff Act, 1934 (Act No. 32 of 1934) already paid on copper or copper alloys in any crude form or manufacture there of.
4. Notification No. 127/75-CE dated 12-5-1975 exempts copper and copper alloys falling under Item No 26-A so much of the auxilliary duty leviable as in excess of 75% of the duty leviable under the Central Excise Act read with any Notification for the time being in force, issued under the said Act or the Rules made thereunder.
5. Notification No. 133/75 CE dated 12-5-1975 exempts the copper and copper alloys from so much of auxilliary duty of excise leviable thereunder as is equivalent to auxilliary duty of excise leviable thereon as is equivalent to the auxilliary duty of excise already paid on the intermediary products specified in the respective Notification.
6. The contention of the learned Counsel for the petitioner is that the auxilliary duty is to be calculated on the effective basic duty and not on the basis of tariff rate of basic duty and the petitioner is entitled to set-off on the basic excise duty before calculation of the auxiliary duty. The petitioner, in support of its case, has placed reliance over the Division Bench judgment of the Delhi High Court in the case of: Goodyear India Limited v. Union of India 1990 (49) L.T. 39 Delhi. The case of the petitioner further is that according to Notification No. 213/63, the petitioner is entitled to set-off and if on the construction of the Notification the petitioner is entitled for this benefit then the Court is not expected to deprive him of such advantage. In support of its case, he has placed reliance over the Division Bench judgment of Bombay High Court, in the case of : The Broach Cooperative Bank Limited v. The Commissioner, Income Tax, Bombay, Mofussil (1949) 17 ITR. 489.
7. In view of the Notifications and the provisions of the Act: the question whether the petitioner is entitled to claim set-off the basic duty for the purpose of determining the auxilliary duty, has to be determined. If according to the Notifications and the provisions of the law, the petitioner is entitled for the set-off and the construction of these Notifications so permits, then this right cannot be denied to the petitioner whether the legislature has any intention to grant such relief or not, but if the construction of the Notifications does not so permit then no such relief can be given to the petitioner. The provisions of the Tax Statutes or Exempting Statutes are to be strictly construed and a liberal construction to extend or widen the ambit of the taxing or exempting statute cannot be given. The construction, which results in inequitable result, is, also, to be avoided.
8. The main contention of the learned Counsel for the petitioner is that the auxilliary duty is to be levied on the effective basic duty and the term 'effective basic duty' means the duty actually payable and not the duty as mentioned in the tariff rates. The words 'effective basic duty' cannot be interpreted in the manner as has been argued by the learned Counsel for the petitioner. The words 'effective basic duty' mean the basic duty applicable or effective on the various items at the time during which the basic duty is leviable. 'Effective Basic Duty' means: the rates of the basic duty in effect during the relevant period and not the basic duty chargeable. There is a wide difference between the 'Basic duty chargeable' or 'payable' from the effective basic duty. It is only the interpretation put to the words 'Effective Basic Duty' by the learned Counsel for the petitioner which has given rise to the present controversy. The words used in the Notification No. 213/63 dated 28-12-1963 are 'excise leviable thereon.' According to the dictionary meaning of the word 'leviable', means 'that may be levied upon, or liable or subject to levy. The word 'levy', when used with reference to taxation, means the legislative function and the declaration of the item or subject, the purpose and rate or amount to taxation rather than the physical application or actual calculation of the tax. The Notification No. 213/63, also, makes a clear distinction between the words 'leviable' and 'payable'. The Second Part of First Paragraph of the Notification No. 213/63 clearly makes a distinction between the duty of excise leviable from that of the duty payable. The Second paragraph relates to the exemption on the crude copper or copper alloys used in the manufacture of pipes and tubes of copper and copper alloys purchased from the market on or after August 20, 1966, from so much of the duty of excise leviable thereon as is equivalent to the duty payable on the copper or copper alloys in any crude form as the case may be. The Notification itself makes a distinction between the words 'duty leviable' from that of the 'duty payable' and the First Part gives exemption only to the duty of excise leviable and not the duty of excise payable. A true interpretation of the Notifications No. 213/63, No. 127/75 and No. 133/75, thus, clearly, indicates that the set-off from the auxilliary duty is available only from the auxilliary duty leviable and the petitioner is not entitled for the set-off from the basic excise duty. It is implicit from the language of these Notifications that no set-off can be allowed on basic excise duty while calculating the auxilliary duty. The interpretation put by the learned Counsel for the petitioner is not in consonance with the spirit of the Notifications and does not extend or widen the scope of applicability, as argued by the learned Counsel for the petitioner.
9. The case of the learned Counsel for the petitioner is, also, based on the language of Column No, III of the Table appended to the Notification No. 127/75. According to the learned Counsel for the petitioner, Column III states duty and percentage of duty leviable under the Central Excise Act read with any Notification for the time being in force, issued under the said Act or the Rules made thereunder. The case of the petitioner is that this Notification is in addition to the Notification No. 213/63 and, therefore, if we read both the Notifications together then the petitioner is entitled for the set-off. The duty leviable under the Central Excise Act read with any Notification for the time being in force, issued under the said Act, means the Notification issued with respect to the auxiliary duty and not with respect to the 'basic excise duty1. The language has to be read in context to the intention, for which the present Notification has been issued. If there is any Notification in existence with respect to grant of any exemption with respect to auxiliary duty then this Notification has to be read with that Notification and it cannot be read with the notification granting exemption or levying the basic excise duty or other duty. Moreover, a clear distinction has been made in the Notification No. 213/63 between the 'duty payable' and the 'duty leviable' and, therefore, in my view, the auxilliary duty is to be calculated on the basis of basic duty as per the tariff rate and basic duty prevalent, i.e., effective, at the relevant time. So far as the judgment of the Division Bench of Delhi High Court of Goodyear India Limited's case is concerned, suffice it to say that decision is not applicable to the facts and circumstances of this case. In the case of Goodyear India Limited, the words used in the Notification were 'read with any Notification for the time being in force issued by the Central Government in relation to the duty so chargeable.' while in the present case, the words used in the Notification are 'duty leviable'. For the purpose of duty chargeable, as per Section 4 of the Act, the assessable value has to be ascertained by reducing all the possible duductions and including the excise duty etc., and as such that authority, cited by the learned Counsel for the petitioner, is, therefore, of no help to the petitioner. Thus, having regard to the context, in which the expression 'duty leviable' has been used in the Notification, the petitioner is not entitled to avail any set-off of the basic duty for the purpose of determining the auxilliary duty.
10. In this view of the matter, I do not find any merit in the present writ petition and the same is hereby dismissed.