GOODS AGRO CHEMICALS Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THESE writ petitions raise common questions of law and are, therefore, disposed of by a common judgment. We shall briefly refer to the facts in one writ petition, O.P. No. 2641 of 1981 as the facts in others are practically similar.

(2.) THE petitioner is a public limited Company manufacturing Copper fungicides and other industrial chemicals. These fungicides are used for prophylactic spraying against fungal diseases in coffee, rubber, tea, areca, cardamom estates and in field crops like paddy, cotton, chillies, turmeric tobacco, betel vine, etc. The petitioner imported 'copper scrap' conforming to 'Birth' variety as per NARI specifications, from Singapore, Middle East, United States and United Kingdom. They have been importing this scrap from 1956 onwards and it is said that the petitioner Company requires about 1,000 Metric Tonnes per year. It is not disputed that the 'copper scrap' imported consisted of scrap derived from old, used and condemned, defective, non -standard, wires, which had only its value in its metal content. The department did not collect any additional customs duty in respect of the 'copper scrap' imported by the petitioner from 1956 till 1979. In March, 1979, the respondent, the Assistant Collector of Customs began demanding a duty of 8% under entry 68 of the Central Excise Tariff Act. The petitioner objected to this levy. However, as they required these materials urgently for their factory, they cleared the goods after execution of a bond for duty at 8% under protest. In a few cases they were also allowed to clear the goods without levy of any additional or countervailing duty and without any objection from he authorities. Thus, it is said that the petitioner cleared without levy of additional duty in 14 instances from 24 -2 -1979 to 13 -7 -1979. Thereafter, purporting to act under Section 28 of the Customs Act, 1962, the respondent informed the petitioner by notice dated 20 -11 -1979 that the goods so cleared are leviable to countervailing duty under entry 68 of the Central Excise Tariff at 8% ad valorem and as this duty was not paid there was short levy and therefore required the petitioner to show cause within 15 days as to why the amount specified in the notice should not be paid. The petitioner filed his objections dated 23 -11 -1979 stating that no duty was leviable on 'copper scrap' as it was not an item which fell within Tariff entry 68. It was also contended that 'copper scrap' was not liable to any excise and additional customs duty and that in any case, the proceedings were time barred. They also prayed for a personal hearing and stated that they were prepared to produce documentary evidence in support of their contentions. There was no enquiry with notice to the petitioner; but an order was passed in May, 1981, in which it was stated that the goods imported were leviable to countervailing duty under Entry 26A(1)at Rs. 3,000/ - per Metric Tonne. However, 'the enforcement was restricted to the amount already demanded' namely, under entry 68.

(3.) THE main question and possibly the only question that would arise for determination is whether 'copper scrap' is copper in crude form falling within Tariff entry 26A.