Collector
of Customs, Bangalore Vs. Western India Plywood Mfg. Co.
Ltd. & Anr [1989] INSC 323 (26 October 1989)
Rangnathan,
S. Rangnathan, S. Kuldip Singh (J)
CITATION:
1990 AIR 755 JT 1989 (4) 389 1989 SCALE (2)927
CITATOR
INFO : F 1990 SC 759 (1,2,4,5)
ACT:
Customs
Tariff Act, 1975: Schedule Heading No. 44.01 and Notification No. 126 of
1984--Timber imported from country specified in Notifications under Section 25
of Customs Act, 1962 exempted from effective basic duty--Rate of auxiliary
duty--Determination of.
HEAD NOTE:
Under
Heading No. 44.01 of Schedule to the Customs Tariff Act, 1975, timber was
chargeable to customs duty (basic effective duty) at 60%. However, under a
Notification issued by the Government under Section 25(1) of the Customs Act,
1962, timber imported from certain countries was exempted, but an additional
duty (auxiliary duty) was payable on Such imports in terms of Notification No.
265 dated 1.12.1982 and its successor Notifications No. 53 of 1983 and 126 of
1984.
The
assessee imported logs of timber from an exempted country, and as it was not
liable to pay the basic duty, it cleared the goods by paying the auxiliary duty
at 40%, with reference to the effective basic duty at 60%, as prescribed under
Notification No. 126 of 1984. Subsequently, however, the assessee felt that it
should have paid an auxiliary duty of only 30%, and not 40% since no basic
effective duty was payable on the goods imported. It, therefore, applied to the
respondent for refund of the excess duty paid by it. This claim was rejected by
the Assistant Collector. On appeal, the Collector of Customs (Appeals) held
that the assessee was entitled to the refund claimed. This order was confirmed
by the Customs Excise and Gold (Control) Appellate Tribunal (CEGAT), on the
view that the explanation would come into operation only if there was more than
one notification granting concession or exemption, in respect of basic duty,
providing for different rates in respect of articles imported from different
countries. Hence, the appeals by the Department.
Allowing
the appeals, this Court,
HELD:
1. The Tribunal has erred in its interpretation of the Notification No. 126 of
1984. The assessee's case is clearly covered by 780 the explanation in the
notification. The auxiliary duty paid by the assssee was perfectly in order and
its refund applications are not maintainable. [783D, 785E]
2.1
The notification and the explanation make it clear that the auxiliary duty has
to be paid with reference to each article based on the effective basic duty
applicable to such article in terms of the First Schedule read with any
relevant notification under Section 25. [785D]
2.2 No
doubt, the main part of Notification No. 126 of 1984 provides for auxiliary
duty at 40% where rate of effective basic duty is 60% or above i.e. rates set
out in First Schedule read with any relevant notification and at 30% where such
effective rate is nil or less than 60%. However, the explanation to the
notification has made an inroad into this simple rule by providing that where
two or more effective basic rates are applicable in respect of any article, and
the differentiation in rates is referable to the country of origin, then the
auxiliary duty payable will be the higher of the two, or highest of the rates.
[783E-G]
2.3 In
the instant case, when timber is imported from the countries specified in the
notification or notifications under Section 25(1), the rate of basic duty is
nil, but if the goods are imported from other countries, the notification does
not apply and a basic duty of 60% would be leviable under the entry in the
First Schedule. Thus, when the rates specified in the First Schedule are read
along with the relevant notifications, it is found that the effective basic
duty is leviable on it at two rates and this differentiation in rates is
attributable to the country of origin in regard to the import. Hence, the
explanation squarely comes into operation and the auxiliary duty will have to
be paid by reference to the higher of the two rates of the effective basic
duty, namely, 60%. [783G-H; 784A]
2.4
The differentiation referred to in the explanation need not arise on account of
the existence of more than one notification, altering the basic duty set out in
the Schedule. It does not matter whether the difference in the rates is because
the First Schedule applies in certain cases and a concession notification in
other cases. If there is no notification the rate specified in the First
Schedule has to be taken into account for purpose of the notification in question.
[784D-E]
2.5 A
person will have to pay an auxiliary duty even though the effective basic duty
is nil. That is the clear intention of the statutory instrument and the
explanation is-based on good reason. It is equitable 781 that all importers
should pay the additional duty at the same rate and that they should have no
advantage or disadvantage inter se. A grant of concession in the matter of
auxiliary duty as well would result in widening the gulf between one importer
and another and also that between such an importer and the local trader. [784F;
785A]
CIVIL
APPELLATE JURISDICTION: Civil Appeals No. 26A42648 of 1987:
From
the Judgment and Order dated 7.5. 1987 passed by the Customs, Excise and Gold
(Control) Appellate Tribunal, New Delhi, Order No. 377 to 381/1987-D in Appeal
Nos.
CD/SA/A
Nos. 2451, 1989 to 1991 & 1992/86-D.
V.C. Mahajan
R.P. Srivastava and P. Parmeswaran for the Appellant.
T.A. Ramachandran
and Mrs. J. Ramachandran for the Respondents.
The
Judgment of the Court was delivered by RANGANATHAN, J. These are four appeals
by the Collector of Customs in the cases of M/s. Western India Plywood Mfg.
Co.
Ltd. and Kanara Wood & Plywood Industries Ltd. (hereinafter referred to as
'the assessee'). A very short common point is involved in these appeals.
The
assessee imported logs of timber from Burma. Under the Customs Tariff Act, 1975, timber is chargeable to customs
duty at 60%. (This we shall call the basic customs duty.) The relevant entry in
the Schedule to the Customs Tariff Act is under heading No. 44.01 which
includes "wood and timber".
The
Government had, however, issued a notification under section 25(1) of the
Customs Act exempting timber imported from certain countries of which Burma is one. The result was that the
basic customs duty payable by the assessee in respect of its imports--we shall
call this the effective basic duty--was nil. The assessee, however, was liable
to pay an additional duty of customs in respect of its imports.
This
additional duty may be referred to as the auxiliary duty of customs. The levy
of this duty is governed by the terms of notification No. 265 dated 8.12.1982
and its successor notifications Nos. 59 of 1983 and 126 of 1984.
782
The last of these reads as follows:
TABLE
S. No. Description of goods Rate (1) (2) (3) 1 Goods in respect of which Forty
* per cent the rate of duty of customs of the value of specified in the said
First the goods as Schedule, read with any determined in relevant notification
of the accordance with Government of India for the the provisions time being in
force is 60 per of Section 14 cent ad valorem or more. of the Customs Act, 1962
(52 of 1962).
2.
Goods in respect of which the Thirty * per cent rate of duty of customs of the
value of specified in the said First goods as deter Schedule, read with any
relevant mined in accord notification of the Government ance with the of India
for .the time being in provisions of force is nil or less than 60 per Section
14 of cent ad valorem. the Customs Act, 1962.
(52 of
1962) * These percentage are 30% and 20% in the notification of 1982 and 35%
and 25% in the notification of 1983. The terms of the notifications are
otherwise identical.
Explanation:
For the purpose of S1. Nos. 1 and 2 in the above Table, the expression
"the rate of duty of customs specified in the said First Schedule, read
with any relevant notification of the Government of India for the time being in
force", in relation to any article liable to two or more different rates
of duty by reason of the country of origin of that article, means that rate of
duty which is the highest of those rates." The assessee cleared the goods
by paying an auxiliary duty at 783 40%. Subsequently, however, the assessee
seems to have felt that its case falls under S. No. 2 of the above notification
and that it should have paid an auxiliary duty of only 30% and not 40%. It,
therefore, applied to the respondent for a refund of the excess duty allegedly
paid by it. This claim was rejected by the Assistant Collector. However, on
appeal, the Collector of Customs (Appeals) held that the assessee was entitled
to the refund claimed and this order has also been confirmed by the Customs,
Excise and Gold Control (Appellate) Tribunal (CEGAT). The Collector of Customs
has preferred these appeals.
The
order of the Tribunal in the appeals preferred by the present respondent was a
very short order in which the Tribunal followed its earlier decision in the
case of M/s. Indian Plywood Company Limited, Bombay. We have been taken through the decision of the Tribunal in
the said case which is reported in (1987) 29 ELT page 559. We have, therefore,
had the benefit of the full reasoning of the Tribunal for reaching its
conclusion.
We are
of opinion that the Tribunal has erred in its interpretation of the
notification set out above and that the assessee's case is clearly covered by
the explanation in the notification. It is true that the main part of the
notification provides for an auxiliary duty at 40% in cases where the effective
rate of basic duty (i.e. the rates set out in the First Schedule read with any
relevant notification) is 60% or above and an auxiliary duty at 30% in cases
where such effective basic rate is nil or less than 60%. If the notification
had stopped here, the assessee would have been perfectly within its rights to
claim that the auxiliary duty payable by it would only be 30% because the
effective basic rate in its case is nil.
However,
the explanation has made an inroad into this simple rule. It has provided that
where there are two (or more) effective basic rates applicable in respect of
any article and the differentiation in rates is attributable to the country of
origin of the goods imported, then the auxiliary duty payable will be the
higher of the two (or the highest of the) rates. In the present case, when
timber is imported from Burma and the other countries specified in the
notification or notifications under section 25(1), the rate of basic duty is
nil but if the goods are imported from other countries, the notification does
not apply and a basic duty of 60% would be leviable under the entry in the
First Schedule. The result, therefore, is that when we read the rates specified
in the First Schedule along with the relevant notifications in respect of a
particular article, namely, timber, we find that the effec784 tive basic duty
is leviable on it at two rates and this differentiation in rates is
attributable to the country of origin in regard to the import. Hence the
explanation squarely comes into operation and the assessee will have to pay
auxiliary duty by reference to the higher of the two rates of the effective
basic duty, namely, 60%.
The
contention on behalf of the respondent--and this is also the view taken by the
Tribunal--appears to be that the explanation comes into operation only if there
is more than one notification granting concession or exemption in respect of
basic duty providing for different rates in respect of articles imported from
different countries. We are unable to see any warrant for reading any such
restriction into the terms of the explanation. As we see it, the terms of the
explanation are perfectly clear. It is this: that if, in respect of any
article, there are :two or more effective basic duties in operation and the
difference is referable to the country from which the article is imported, then
the highest of the effective rates will govern the levy of auxiliary duty. It
does not matter whether the difference in the rates is because the First
Schedule applies in certain cases and a concession notification applies in other
cases.
Clearly,
the use of the words "rate ..... specified in the First Schedule, read
with any relevant notification" does not necessarily require that there
should be such a notification; they mean: "the rates specified in the
First schedule read with the relevant notification, if any". If there is
no notification the rate specified in the First Schedule has obviously to be
taken into account for purpose of the notification we are now concerned with.
It is. therefore, not necessary that the differentiation referred to in the
explanation should arise on account of the existence of more than one
notification altering the basic duty set out in the Schedule.
Sri Ramachandran
contended that the construction sought to be placed by us would lead to this
anomaly that a person will have to pay an auxiliary duty even though the
effective basic duty is nil. This argument is without force for two reasons. In
the first place that is the direct result of the explanation and, therefore, if
that is the clear intention of the statutory instrument, the anomaly cannot be
helped.
The
second and perhaps more appropriate answer to Sri Ramachandran's contention is
that the explanation is based on good reason. It will be seen that in a case of
this type as well as in cases governed by more than one notification, which
make a distinction in the rate of duty based on the country of origin, there
will be different importers importing goods but paying basic duty at different
rates. The intention of the statute could well be that while for purposes of
basic duty a 785 differentiation in rates may be justified depending upon the
country of origin that consideration would be totally irrelevant in the context
of auxiliary duty. In the context of auxiliary duty, it is .equitable that all
importers should pay the additional duty at the same rate and that they should
have no advantage or disadvantage inter se. A grant of concession in the matter
of auxiliary duty as well would result in widening the gulf between one
importer and another and also that between such an importer and the local
trader.
The
provision, therefore, seems to have been deliberately enacted to achieve this
result which is not really an anomaly as described by Sri Ramachandran.
Sri Ramachandran
sought to make same point on the use of the word 'article' in the notification.
We do not, however, see any significance in the use of this word which has any
relevance to the point at issue. The word 'article' is used because though a
number of articles may be included in one item in the First Schedule, the
relevant notification may not govern all of them and it may be restricted. only
to some out of the many articles mentioned in the Schedule. The notification
and the explanation, therefore, make it clear that the auxiliary duty has to be
calculated with reference to each article based on the effective basic rates of
duty applicable to such article in terms of the First Schedule read with any
relevant notification under section 25.
For
the reasons mentioned above, we are of opinion that the auxiliary duty paid by
the assessee was perfectly in order and that its refund applications are not
maintainable.
We,
therefore, set aside the order of the Tribunal and the Collector (Appeals) and
restore the order of the Assistant Collector refusing refund to the assessee.
The appeals are, therefore, allowed. In the circumstances of the case, we make
no order as to costs.
N.P.V.
Appeals allowed.
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