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Neomer Limited Vs. Govt. of India - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 637 of 1978
Judge
Reported in1981(8)ELT134(Guj); (1980)2GLR625
ActsCustoms Act 1962 - Sections 12; Tariff Act - Sections 2A; Excise Act
AppellantNeomer Limited
RespondentGovt. of India
Appellant Advocate V.B. Patel, Adv.
Respondent Advocate H.M. Mehta, Adv.
Cases ReferredMcDowell & Co. v. Commercial Tax Officer
Excerpt:
.....- - countervailing duty' levied by section 2a of the tariff act must mean customs duty levied on like articles actually manufactured in india (regardless of the explanation clause of section 2a which provides that it is leviable on such articles whether or not like articles are in fact manufactured at the relevant time) is the proposition canvassed by the petitioner company. the competent authority having negatived the view inasmuch as the explanation clause of section 2a in terms defines the levy as countervailing duty regardless of whether or not a like article is manufactured in india, the petitioner company has invoked the powers of this court under articles 226 & 227 of the constitution of india in the backdrop of facts and circumstances outline hereafter. the petitioner applied..........'countervailing duty' levied by section 2a of the tariff act must mean customs duty levied on like articles actually manufactured in india (regardless of the explanation clause of section 2a which provides that it is leviable on such articles whether or not like articles are in fact manufactured at the relevant time) is the proposition canvassed by the petitioner company. why? because the expression has been so understood in the context of entry 51 of the state list (list ii) of the constitution of india which empowers a state government to levy excise on goods manufactured within the state. the competent authority having negatived the view inasmuch as the explanation clause of section 2a in terms defines the levy as countervailing duty regardless of whether or not a like article is.....
Judgment:

M.P. Thakkar, J.

1. The principal question is whether or not the expression 'countervailing duty' means that the statute (Indian Tariff Act of 1934 i.e. Tariff Act) says.

'Countervailing duty' levied by section 2A of the Tariff Act must mean customs duty levied on like articles actually manufactured in India (regardless of the Explanation clause of section 2A which provides that it is leviable on such articles whether or not like articles are in fact manufactured at the relevant time) is the proposition canvassed by the petitioner Company. Why? Because the expression has been so understood in the context of Entry 51 of the State List (List II) of the Constitution of India which empowers a State Government to levy excise on goods manufactured within the State. The competent authority having negatived the view inasmuch as the Explanation clause of section 2A in terms defines the levy as countervailing duty regardless of whether or not a like article is manufactured in India, the petitioner Company has invoked the powers of this Court under Articles 226 & 227 of the Constitution of India in the backdrop of facts and circumstances outline hereafter.

2. The petitioner Company imported 22 bales of polypropylene fibre under a Bill of Lading dated December 23, 1976. At the time of clearance a sum of Rs. 87,675/- was levied and collected on the said goods as duty including countervailing duty under section 2A of the Tariff Act. The petitioner applied for refund of countervailing duty paid on these goods on the ground that like goods were not manufactured in india and countervailing duty could not be levied thereon. This contention was rejected by the Assistant Collector of Customs by his order dated May 12, 1976 as per Annexure 'A'. The petitioner Company preferred an appeal to the Appellate Collector of Customs at Bombay. The Appellate Authority by his order at Annexure 'B' dated August 20, 1976 negatived the contention viz., that since polypropylene fibre was not being made in India at the time of importation no question of levying countervailing duty could arise. The Appellate Authority placed reliance on the Explanation to section 2A of the Tariff Act as it stood at the material time and took the view that countervailing duty was payable on an article regardless of whether or not the article in question or a like article was manufactured in India having regard to the Explanation to section 2A. The Appellate Authority proceeded to observe that as polypropylene staple fibre was covered by Item 18(1)(II)(C) of Central Excise Tariff and that the duty had been correctly levied. The petitioner Company thereupon invoked the revisional jurisdiction of the Government of India. The Joint Secretary of the Govt. of India rejected the revisional application by the impugned order at Annexure 'C' dated June 22, 1977 on the ground that the question, whether or not the article in question or a like article was actually manufactured in India was immaterial for the purpose of levy of countervailing duty on the importation of the goods. Thereupon the petitioner Company has approached this Court by way of the present petition.

3. The main argument urged on behalf of the petitioner Company is that countervailing duty envisioned by section 2A of the Tariff Act is a duty of excise on goods manufactured or produced in India and falls within Entry 84 of List I of Schedule VII of the Constitution of India and not a customs duty on goods imported into India falling within the scope of Entry 83 of the said List as contended by the respondents. The pivotal question, therefore, is what is the nature of the countervailing duty imposed under section 2A of the Tariff Act. The Tariff Act, as the preamble shows, is an Act enacted to consolidate the law relating to customs duties. Section 2 of the Tariff Act provides that duties at the rates specified in the Schedule to the said Act shall be levied under the Customs Act of 1962. The First Schedule to the Tariff Act enumerates the articles on which duty is payable upon import by way of import tariff. Section 12 of the Customs Act provides that customs duty shall be levied under the Custom Tariff Act or any other law for the time being in force on the goods imported into, or exported from, India. Thus, under section 2 of the Indian Tariff Act read with section 12 of the Customs Act, 1962 custom duty is payable on the importation of the goods in India at the rates specified in Schedule to section 2 of Tariff Act. Under section 2A of the Tariff Act an additional duty on import of goods is levied. The said section insofar as material deserves to be quoted :-

'2A. Levy of countervailing duty. - (1) Any article which is imported into India shall be liable to customs duty equal to the excise duty for the time being leviable on a like article if produced or manufactured in India, and if such excise duty on a like article is leviable at any percentage of its value, the customs duty to which imported article shall be so liable shall be calculated at that percentage of the value of that imported article.

Explanation. - In this section, the expression 'the excise duty for the time being leviable on a like article if produced or manufactured in India' means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs and where such duty is leviable at different rates, the highest duty.'

4. In the present case there is not dispute as regards the liability of the petitioner Company to pay customs duty as per the rate specified in the Schedule to the Tariff Act as enjoined by section 2 of the Tariff Act read with section 12 of the Customs Act. The dispute centres round the question whether the levy of countervailing duty under section 2A on the same article on the basis embodied in the said provision is valid. That countervailing duty under section 2A is customs duty payable in addition to the duty under section 2 of the Tariff Act is not disputed. What is disputed is whether such additional duty is payable only if a like article is manufactured in India and not otherwise. The contention of the petitioner Company is that having regard to the well accepted meaning of the expression 'countervailing duty' section 2A cannot but refer to a duty in respect of importation of articles where like articles are actually manufactured or produced in India. In case similar articles or like articles are not actually manufactured or produced in India, (such is the argument) countervailing duty cannot be levied thereon having regard to the meaning and content of the expression 'countervailing duty' as has come to be understood. The argument urged on behalf of the petitioner Company overlooks and ignores the all important circumstance that section 2A itself contains a definition clause implanted in the Explanation which in terms makes it abundantly clear that whether or not the article in question is actually manufactured or produced in India is not a relevant consideration. In other words, the expression 'countervailing duty' has been employed in a special sense and is required to be interpreted in the light of the said definition clause. The purpose of section 2A is to levy an additional duty over and above the customs duty envisioned by section 2 as per the Schedule and the said additional duty has been labelled as 'countervailing duty'. It is levied on any article which is imported into India, and the rate or measure of the duty has been indicated in section 2A. The measure is : 'at the rate equal to the excise duty for the time being leviable on a like article if produced or manufactured in India'. The expression 'the excise duty for the time being leviable on a like article if produced or manufactured in India' has in its turn been defined in the explanation clause as meaning 'the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs....' It is, thus, clear that section 2A read with the Explanation provides as under :-

(1) Additional import duty shall be payable over and above the duty payable under section 2.

(2) Such duty will be equal to the excise duty for the time being leviable on a like article whether or not it is produced or manufactured in India.

(3) In case it is produced or manufactured in India, the duty shall be equivalent to the duty payable on such an article in India under the relevant excise provision.

(4) In case the article is not so produced, it will be leviable on the class or description of articles to which the imported article belongs.

5. It is, thus, virtually impossible to argue that countervailing duty can be levied provided and only provided the article is manufactured or produced in India or that the manufacture or production of the article in question in India is a condition precedent to the valid levy of countervailing duty. Be it also realised that what is being imposed is not excise duty but an import duty named as countervailing duty at a rate equivalent to the rate at which excise is payable. It is only for the purposes of finding out measure of duty or the rate of duty that a reference has to be made to the relevant entry or item of the Excise Act. If a like article is actually produced or manufactured in India, duty would be leviable at a rate equivalent to the rate of excise duty for the time being leviable on a like article. If a like article is not so produced or manufactured, then the duty would be leviable under the Excise Act on the class or description of articles to which the article belongs. In view of the explicit provision made by section 2A read with the Explanation clause it is not possible for us to accept the contention that countervailing duty cannot be levied if the article or a like article is not actually manufactured in India at the time of importation of the goods in question. Where is the question of finding out the meaning and content of the expression 'countervailing duty' as employed in some other statutes or as interpreted in some other context when expression has in terms been defined and a special meaning assigned to it by the provision itself We cannot close our eyes to the definition implanted in the Explanation part of section 2A merely because the expression 'countervailing duty' in some other Act or in some other context has been construed in a different light. In our opinion, the inquiry is not a permissible inquiry and it is not open to us to examine how the expression has been construed in some other context. Even so, since some decisions have been cited, we will advert to the same for the sake of record. Reliance has been placed on observations made by Shah J. (as he then was) in Kalyani Stores v. State of Orissa, A.I.R. 1966 S.C. 1686, which have been quoted with approval in McDowell & Co. v. Commercial Tax Officer, A.I.R. 1977 Supreme Court page 1459. In Kalyani Stores (supra) the question arose in regard to the interpretation of Entry 51 in List II (State List) of the Seventh Schedule of the Constitution of India which provides for levy of duty of excise on goods manufactured in the State and also for levy of countervailing duties in respect of similar goods. The question was with regard to the width and amplitude of the Entry contained in the State List for levy of countervailing duties. Entry 51 does not define the expression 'countervailing duties'. The expression has not been defined anywhere else in the Constitution of India. In this context Shah J. has observed that 'We have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51'. With this preamble Shah J. has proceeded to refer to the meaning of the expression 'in its etymological sense' in which sense it means to counter-balance; to avail against with equal-force or virtue; to compensate for something or serve as an equivalent of or substitute for. Reliance was also placed on the definition contained in Black's Law Dictionary, 4th Edn. at page 421. In the context of these definitions it was observed that Entry 51 empowered the State Legislature to impose duties of excise on alcoholic liquors for human consumption where the goods were manufactured or produced in India and it also empowered the State Legislature to levy countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India, presumably to equalise the burden after taking into account the cost of transport from the place of manufacture to the taxing State. These observations made by the Supreme Court in the context of an Entry in the State List empowering the State to levy countervailing duty can be of no avail to the petitioner having regard to the fact that insofar as the interpretation of the section 2A of the Tariff Act is concerned, the relevant expression has been clearly defined and the meaning and content of the expression 'countervailing duty' as employed in the said provision has been made explicit in the Explanation. It is, therefore, clear that so far as section 2A is concerned, the nomenclature has been employed in a special sense as embedded in the Explanation. No support can be sought from McDowell's Case wherein the expression came up for construction in the context of the fact that the expression 'countervailing duty' has not been defined either in the Constitution of India or in the State enactment. Under the circumstances, we are unable to accede to the argument urged in this behalf by the learned counsel for the petitioner Company. Since we do not accept this first step in the argument, the rest of the argument cannot survive, for, unless the first premise is accepted, the argument cannot buttress the claim of the petitioner Company. In order to uphold the contention urged on behalf of the petitioner we will have to shut our eyes to the definition built into the explanation clause of section 2A itself. We are afraid we cannot do so. The contention must, therefore, be rejected. The second step in the argument that since it is not a customs duty on importation, it cannot fall under Entry 83 and would fall under Entry 84 also accordingly falls to the ground. The further argument on the premise that it falls under Entry 84 of the Union List viz., that it is a duty of excise or in the nature of excise and must, therefore, necessarily depend on the manufacture of the article in question in India cannot, therefore, be countenanced.

6. Under the circumstances, the main plank of attack fails. Counsel for the petitioner having failed in the main challenge, assailed the impugned orders on a different ground. It was contended that the revisional order passed by the Government of India which was the final order confirming the original order of rejection of the application for refund had been passed without affording to the petitioner personal hearing. In our opinion, it is not incumbent on the revisional authority to afford a 'personal hearing' to an applicant. No authority is cited in support of the proposition that a revisional authority is obliged to afford a 'personal hearing' in case an applicant claims personal hearing and that upon failure to do so the order would be rendered illegal or void. We are, therefore, unable to accede to this argument.

7. It was finally contended that the petitioner Company had no reasonable opportunity to show that polypropylene fibre which was imported would fall under Item 18(1)(ii)(c) of the Central Excise Tariff. Now, import duty under Section 2 of the Tariff Act has been recovered as per the Schedule under Item 46(6) which pertains to staple fibre. The petitioner Company has not disputed the correctness of the levy under this Entry. Item 18(1) of the Central Excise Tariff refers to staple fibre. It cannot be contended that the goods which were imported were staple fibre for the purposes of payment of import duty under section 2 but were not staple fibre for the purpose of excise tariff. However, it appears that in respect of staple fibre under item 18(1) duty is levied at a lower rate if the staple fibre is of a cellulosic origin as it evident from the Entry which reads as under :-

'Item No. 18 - MAN-MADE FIBRES TABLE-----------------------------------------------------------------Sl. Description DutyNo.------------------------------------------------------------------(1) (2) (3)Rs. per Kg.------------------------------------------------------------------1. Staple fibre and tow -(i) of cellulosic origin 1.50(ii) of non-cellulosic origin(a) acrylic fibre 30.00(b) polyester fibre 36.00(c) other 30.00Provided that where staple fibre is made outof tow which has paid the appropriate amountof the duty of excise, or the additional dutyunder section 2A of the Indian Tariff Act, 1934(32 of 1934), as the case may be, the dutypayable on such staple fibre shall be nil.'-----------------------------------------------------------------

It is not the contention of the petitioner Company that the staple fibre imported by it is of cellulosic origin. In the affidavit-in-reply sworn by the Appraiser of the Collector of Customs at Bombay on September 1, 1980, it has in terms been stated that the article in question which was imported by the petitioner was a man-made fibre of non-cellulosic origin (see paragraph 4). No affidavit-in-rejoinder has been filed to controvert this submission. Even so, we are inclined to afford an opportunity to the petitioner Company to controvert that averment or to contend that it is of cellulosic origin and duty at a lower rate would be applicable. It could have been pointed out in the course of the revisional proceedings if it was so desired, and if there was any merit in the contention, that it did not fall under Item 18(1)(ii)(c) but it fell under Item 18(1)(i). Even so, we are inclined to afford an opportunity to the petitioner Company to raise such a contention. In case such contention is raised, the matter would have to be remanded to the competent authority for determining the question. Under this circumstances, we propose to adopt the course outlined hereinafter. The operative portion of the judgment will be dictated on September 26, 1980. It will be open to the petitioner Company to file an affidavit showing that the goods imported by it would fall under some Item other, than Item 18(1)(ii)(c). In case such an affidavit is filed, we will proceed on the footing that the averment made in the affidavit-in-reply on this point remains uncontroverted and there is no real or genuine dispute as regards the Item under which the goods would fall for the purpose of ascertaining the duty.

8. On September 16, 1980 when the aforesaid judgment was dictated time was granted to the petitioner upto September 26, 1980 in order to enable him to file an affidavit showing that the goods imported by it would fall under some item other than Item 18(1)(ii)(c) if so desired so that the matter could be remanded to examine the question if it became necessary to do so. On September 26, 1980 Mr. Patel prayed for further time. We have been adjourning the matter from time to time at his instance but even till today Mr. Patel is not in a position to file the affidavit. Under the circumstances, the petition deserves to be dismissed having regard to the view that we have taken on merits on the basis of the contentions raised in the petition. The petition is, therefore, rejected. Rule is discharged with costs.

9. Learned counsel for the petitioner applies for a certificate of fitness to appeal to the Supreme Court of India under Article 133 of the Constitution of India. This petition does not involve a substantial question of law of general importance which in the opinion of this High Court needs to be decided by the Supreme Court. Certificate is, therefore, refused.


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