1. Petitioner imported 35 cartoons of plastic Metallised films Ex S. S. Lyumila Stal under bill of entry C.R. No. 402/79 No. 68, dated 21-6-1979 of the C.I.F. value of Rs. 80,065/- and claimed concessional assessment for the above imported goods under Customs Notification 228/76, as amended by 443/Cus/76, which wholly exempts countervailing duty on articles set out in the notification. The basic customs duty leviable under item 39.07, of the Customs Tariff Act 1975 at Rs. 96,066/- was paid, but the additional levy of duty at Rs. 88,060.50 was disputed. This writ petition was filed without availing of the remedies provided under the Act. The assessment was made on 6-7-1979.
2. Respondent takes up the stand that though the word 'films' is not specifically mentioned in Notification No. 228 - Customs, dated 2-8-1976, as amended by Notification No. 443 - Customs of 1976, a countervailing duty at the rate of 50 per cent of the value under Item 15-A(2) of the Central Excise Tariff is leviable. A film being a sheet of plastic of a kind, it falls within the exclusion contemplated in the Notification. Merely because films do not find a place in item 15-A(2) of Central Excise Tariff, it will not be correct to claim that it would fall within the expression 'Articles made of plastics, all sorts......including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether luminated or not, and whether rigid or flexible, including lay flat tubings and polyvinyl chloride sheets and otherwise specified.' Films will fall within the ambit of the words 'sheets' and 'foils' whether they are rigid or flexible. Merely because the explanatory note to the notification states that for the purpose of this notification the expression 'articles made of plastics' shall have the same meaning as in sub-item (2) of item 15-A of the First Schedule to the Central Excise and Salt Act, 1944 (1 of 1944); it would not mean that the Notification issued under Tariff Act, should be understood in the same manner. In Brussels Nomenclature Chapter 39.07, films are described as articles of rectangular shape. Merely because in the Notification issued under Excise Act, films are specifically mentioned, it cannot be treated, for purposes of the Tariff Act, that it is a separate kind of article. When classification is involved, it is undoubtedly for the Revenue authorities to decide in view of the decision in : AIR1973SC194 . There being no ambiguity, petitioner cannot invoke the jurisdiction of this court under Art. 226 of the Constitution. Reliance placed on I.S.I. has no relevance. When exemption is claimed, the burden is upon the petitioner to show that the imported goods fell within excluded category, and what is more important is not the distinctive descriptive word that may be used in the documents, but what was the type of goods imported.
3. Mr. Habibulla Basha, learned counsel for the petitioner, submits that, there is no dispute that the goods imported were plastic metallised films. As for levy of basic duty under Tariff Act, there is no dispute. It is only with reference to levy of additional duty under Section 3 of the Act, reliance is placed on the Notification No. 228-Customs, dated 2-8-1876, amended by Notification No. 443-Customs, dated 29-11-1976. It is to the effect that articles made of plastics of all sorts are exempt from payment of so much of duty of the Customs as is leviable thereto under S. 3 of the Tariff Act, by excluding those specified in the Table Annexed thereto. Explanatory Note is to the effect that 'articles made of plastics' shall have the same meaning as in item 15-A(2) of Excise Act. The word 'film' is not found in the Table. Hence, the concession is available to the petitioner.
4. The plea of the revenue is that, the words 'sheets, foils, whether rigid or flexible, include 'films'. By referring to Chapter 39.07 in Brussels Nomenclature, Mr. Thyagarajan, learned counsel for the respondent, submits that, a films is an article of rectangular shape and is akin to sheets, strips, foils, etc. This manner of understanding 'films' which have been imported, is preposterous. Faced with the difficulty that 'film' is not found in the Table, the revenue had come forward to put forth an unreasonable stand and go to the extent of claiming that it has the right to decide against the assessee and construe in favour of the revenue when there is ambiguity as to whether a class of imported goods falls within two items or not.' But, as held in Collector of Customs v. Ganga Setti - : 2SCR277 , if the construction put upon by Revenue is perverse, then the court was competent to interfere with such an assessment. On this basis, the other materials relied upon and the submissions put forth by the petitioner, are considered hereunder.
5. In the exemption notification issued under the Tariff Act in the 'Table' the word 'films' being not mentioned, it is pointed out that in respect of more than one notification issued under Excise Act, the word 'film' finds a place whenever the Government considered that it required to be exempted from levy of duty. Item 15-A(2) of Excise Tariff, to which reference is specifically made in the Tariff Exemption Notification is to the following effect :
'(2) Articles made of plastics, all sorts.......including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether luminated or not, and whether rigid or flexible including lay flat tubings and polyvinyl chloride sheets not otherwise specified.'
The word 'films' is not mentioned in this item. But in the exemption notification issued under Excise Act spread over several years, the word 'films' is specifically mentioned. The relevant notification are :
'1. 68/71-C.E., dated 29-5-1971
2. 71/71-C.E., dated 29-5-1971
3. 72/71-C.E., dated 29-5-1971
4. 75/71-C.E., dated 29-5-1971
5. 39/73-C.E., dated 1-3-1973
6. 151/75-C.E., dated 31-5-1975.'
6. It is justifiably contended that in spite of the specific use of the following expression like tubes, rods, sheets, foils, other rectangular or profile shapes, whether luminated or not, and whether rigid or flexible' the same Central Government has chosen to understand that when films are made of plastics, they would fall within the expression 'all sorts ... ... not otherwise specified.' Undoubtedly, notifications issued under such enactment will have to be understood with reference to the provisions of the concerned Act. But, when the Tariff Notification itself states that 'articles made of plastics' shall have the same meaning as in item 15A(2); how this item is understood by the Government, has considerable relevance in properly classifying the goods. With full consciousness of the meaning obtaining for 'articles made of plastics', the Tariff Notification having been published, incorporating therein the relevant identical types of goods, and omitting to mention the word 'films', Revenue cannot claim that any ambiguity exists, enabling it to take an arbitrary decision. Articles made of plastics, all sorts ... ... not otherwise specified having been understood to include films, in respect of item 15A(2), the same meaning has to be applied to the Tariff Notification by virtue of the Explanation found therein.
7. To add further strength to this plea put forth by petitioner, reliance is placed on I.S.I. Standards relating to plastic industry, wherein 'film' is described as 'A sheeting having nominal thickness not greater than 0.25 mm.' Further, in Chapter 39 of Tariff Act, Chapter Note 3 sets out the materials to which heading 39.01/06 would apply. It mentions films as a specific item. Yet, another interesting feature pointed out is that, by a Notification issued in 1981, under Excise Act, item No. 15 BB had been inducted dealing with 'polyester films'. Still, counsel for respondent would plead that, when these films are spread out, they have a rectangular shape. If this sort of understanding the nature of goods imported is permitted, there in respect of cinematograph films, which are several metres in length when spread out will have a rectangular shape. Likewise, if film roll used in a camera is spread out, it takes a rectangular shape. This is, undoubtedly, an illogical manner of categorising the imported goods.
8. Petitioner also pointedly Refers to relief having been granted in respect of two other importers, as mentioned in paragraph 14, and pleads discrimination. It is also stated that the Customs Department has been allowing the import of films without payment of additional duty hitherto. Except to make a sweeping denial that no discrimination as alleged in paragraph 14 had taken place, no particulars are placed before Court to show that in respect of the two instances referred to by the petitioner, the additional duty had been collected. This only shows that the respondent had not entertained any ambiguity in understanding the scope of the Tariff Notification, but had resorted to give a different interpretation, because Revenue had the right to decide against the assessee pertaining to classification. A perverse classification, as pointed out by Supreme Court, cannot be got over by claiming that ambiguity exists, where it is absent.
9. Respondent would then rely upon the decision in W.A. 248 of 1979. But this count have no application because, the primordial point that came up for consideration was whether a notification granting exemption could have retrospective effect or not. In the penultimate paragraph, after referring to item 82(3)(b) it was held that the interpretation put by the Revenue was not wrong because the films imported were only rectangular in shape. The type of goods imported by the petitioner herein and the notification relied upon, having led to consideration as to under what classification these goods fall, the decision of the Division Bench does not stand in the way of the petitioner securing the relief prayed for.
10. Hence, the contention of the revenue that though the word 'films' is not used in the Table to the Tariff Notification, yet, 'films' will fall within the ambit of words 'sheets, and foils whether they are rigid or flexible', is a perverse approach, in spite of being fully aware that in respect of 'articles made of plastics' or in understanding the notification, the same meaning obtaining in item No. 15-A(2) of First Schedule to Act I of 1944 will have to be applied and implemented. Hence, the writ petition is allowed with costs relating to additional duty imposed upon the petitioner. Counsel's fee Rs. 250.