V.T. Raghavachari, Member (J)

1. As all these appeals raise a common question for determination, though the periods and the relevant Finance Acts relating to the different periods may be different, all these appeals were heard together.

2. The Indian Oil Corporation had exported certain petroleum products to Nepal without payment of duty under Bond claiming to be entitled to do so in terms of notification No. MF (DR) 151/81 dated 29-7-81 issued under Rule 13(2) of Central Excise rules, 1944. Subsequently, various show cause notices were issued as to why special excise duty should not be demanded from them in respect of such exports. They replied denying liability relying on the notification mentioned supra. Their denial of liability was rejected by the Assistant Collectors concerned. Their appeal against the said orders were rejected by the Collector (Appeals) under order dated 27-5-1985. It is against the said order that these 11 appeals have been filed. Apart from claiming that no special excise duty was payable as demanded, it is further contended that in any event the demand in respect of several of the instances was barred by time also.

3. We have heard Shri N.V. Raghavan Iyer, Adviser, (Excise and Customs), Indian Oil Corporation on behalf of the Appellant and Shri P.K. Ajwari, Sr. Departmental Representative for the respondent Collector.

4. Shri Raghavan Iyer contended that the words "without payment of duty" in Rule 13(2) (in terms of which notification No. 151/81 had been issued) meant without payment of any excise duty under whatever name it may be called. He contended that there was no provision for assessment proceedings in respect of such exports and that itself would support his contention. He referred to the decision of the Delhi High Court in the case of Modi Rubber Limited (1983 E.L.T. 24 Delhi) and further submitted, with reference to the provisions of the Central Excise Laws (Amendment and Validation) Act 58 of 1982 that the provisions in the said Act referred to grant of exemption under notifications and that, therefore, they referred to exemptions under Rule 8 of the Central Excise Rules and not to notifications under other rules. He, therefore, contended that even after the passing of Act of 58 of 1982, the contentions approved of in the Modi Rubber Limited case would apply to the present facts. He also referred to the provisions of Rule 9A(3) of Central Excise Rules and also the provisions of Section 11A to support his arguments. Finally he contended that even if special excise duty is to be held payable the same would be nil only since it is to be quantified at a percentage of the basic excise duty payable and such basic excise duty in all the instances under consideration was nil only.

5. On the other hand Shri Ajwani contended that the Central Excises and Salt Act is different from the several Finance Acts under which the special excise duty becomes payable and, therefore, the reference to the words in Rule 13(2) cannot be read as applicable to the special excise duty payable under the Finance Acts. He contended that the documents to be prepared and submitted in connection with the exports in question did make a reference to the value of the commodity, the duty payable etc. and these would indicate the provisions for assessment. He relied upon the provisions of Act 58 of 1982 and contended that this was passed specially to overcome the effect of the judgment of the Delhi High Court in the Modi Rubber case and hence the appellants cannot draw strength from the findings in the said judgment to support their contentions. On the question of the special excise duty being payable at a percentage of the basic excise duty only he relied upon the decision of the Tribunal in the Vazir Sultan case (1995(21) ELT 757) and stated that the chargeable event in respect of special excise duty being the manufacture and basic excise duty having been payable on the date of manufacture special excise duty cannot be claimed