MAHENDRA INDUSTRIES Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THIS Writ Petition coming on for hearing on this day, upon perusing the petition and the affidavit filed in support thereof the order of the High Court, dated 14-12-1982 and made herein and the records relating to the order in No. 251-B. 82, dated 17-7-1982 on the file of the respondent comprised in the return of said respondent, to the Writ made by the High Court, and upon hearing the arguments of Mr. K.C. Rajappa, Advocate for the petitioner, and of Mr. P. Narasimhan, Senior Central Government Standing Counsel on behalf of the Respondent, the Court made the following order :- The petitioner herein, who is a manufacturer of Plastic bangles and is registered as a Small Scale Industrial Unit, holds an import licence for import of Cellulose Nitrate Films of 0. 11 mm. thickness. The petitioner imported under the said licence Cellulose Nitrate Films, hereinafter referred to as C.N. Films and assessed to tax. It is alleged that the petitioner is entitled to a concessional rate of assessment of duty. But notwithstanding Notification No. 65-Customs, dated 30-4-1973 and Notification No. 86-Customs G.S.R. 667 (E) dated 27-11-1974, the petitioner has been put to excess import duty. Accordingly the petitioner is entitled to refund, but the same has been refused by the respondent.

(2.) ALTHOUGH many details are stated in the affidavit, which, for the purpose of this matter before this Court, are not necessary. A few facts, which require mention, however, I may state. It is not in dispute that the petitioner having a licence to import, placed orders with a foreign supplier Messrs. British Industrial Plastics Ltd., Worcestershire, and the goods being C.N. Films arrived at Madras Port on 30-8-1974. When the goods were cleared, they were classified under Item 82(3) Indian Customs Tariff and were subjected to duty at 100% plus 20% countervailing duty which, according to Bill Entry of Clearance for Home Consumption, was valued at Rs. 9, 604/- and the duty realised upon that was Rs. 11, 224/- and an additional duty equal to excise duty amounting to Rs. 8, 451-52p. was also levied. The total duty and additional duty levied was Rs. 19, 976. 32p. The petitioner thereafter applied before the Assistant Collector of Customs (Appraising Department), Madras for refund of excess duty realised from him. Giving relevant particulars in support of its claim, the petitioner claimed a sum of Rs. 13. 637. 72p to be refunded as excess duty collected. It has stated in its refund application that C.N. Films had been assessed to duty under Item 82(3) of the Indian Customs Tariff at 100% plus 20% contrary to the terms of the Government of India Notifications dated 30-4-1973 and 27-11-1974. The petitioner has also asserted that the goods imported were wrongly assessed under Item 82(3) Indian Customs Tariff. They ought to have been assessed under Item 87 thereof. The petitioner's refund application, however, was rejected by the Assistant Collector of Customs (Refund Section) on 1-2-1975. The Assistant Collector of Customs took the view that the imported goods were cleared by the petitioner on 18-11-1974, that the Notification No. 86, dated 27-11-1974 had been issued subsequent to the clarification and that benefit of concessional rate mentioned in the said Notification therefore could not be given to the petitioner. Assistant Collector also concluded that the goods were identifiable as one assessable under Item 82(3) Indian Customs Tariff and accordingly they had been properly assessed to duty. The petitioner thereafter preferred an appeal on 6-6-1975 before the Appellate Collector of Customs, Madras. After inordinate delay, however, on 27-10-1979, the Appellate Collector of Customs dismissed the appeal and held that Item 82(3) (b) Indian Customs Tariff was the right provisions applied to assess the goods imported by the petitioner and that the petitioner was not entitled to any concessions as contemplated in the Government of India Notification afore mentioned. Petitioner preferred a revision to the respondent, Government of India, represented by the Joint Secretary, Ministry of Finance, New Delhi. Petitioner's revision application, however, was dismissed. In the revision, however, it was held that C.N. Films are different from C.N. Sheets and the Notification dated 27-11-1974 had been issued subsequent to the import of goods by the petitioner, therefore refund claimed by the petitioner was not permissible. There has been an attempt before the respondent to demonstrate that plastic films would not answer the description of any commodity described in Item 82 (3)(b) of Indian Customs Tariff. The Provisional authority, : however, held that plastic films would answer the descriptions of 'Rectangular shapes'. Thus according to the respondent the goods were correctly classified, under Item 82(3) (b) Indian Customs Tariff by the Appellate Collector of Customs, Madras.

(3.) THE goods in question were admittedly 'C.N. Films'. THEre is no dispute before me that the goods in question were articles made of plastics. Duty under the Customs Tariff Act in respect of artificial resins, plastic materials of various types and articles thereof is leviable under S. 3 read with Chapter 39. Such goods which answer descriptions in the Schedule are subjected to duty as stipulated for such items. Item 82(3) says;