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Prema Metal Works Vs. the Government of India, Ministry of Finance (Department of Revenue and Insurance) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1977)2MLJ202
AppellantPrema Metal Works
RespondentThe Government of India, Ministry of Finance (Department of Revenue and Insurance) and anr.
Excerpt:
- .....or more was reduced to 10% ad valorem.4. according to the firm, the goods imported by it were cold-rolled strips of stainless steel having a width of more than 600 mm that they were liable to customs duty at the rate of 10% ad valorem only under the notification and that the firm was entitled to the refund of the excess duty charged by the customs authorities.5. the case propounded on behalf of the government of india and the assistant collector of customs (respondents nos. 1 and 2 respectively before me) is that the goods in question were not strips within the meaning of item 63(14) of the schedule, but were sheets covered by item 63(20-a) thereof and that the duty at the rate of 100% ad valorem had been correctly charged from the firm. the sole question which requires determination,.....
Judgment:
ORDER

A.D. Koshal, J.

1. M/s. Prema Metal Works, a firm carrying on business in Madras and hereinafter referred to as the firm, imported from Japan cold-rolled pieces of stainless steel having a thickness of 5 mm. and a width of more than 600 mm. each, which were supplied to it in coil form or in straight length as per an invoice, dated the 30th of April, 1969. The Customs authorities levied import duty on the goods under item 63 (20-A) appearing in the First Schedule to the Indian Tariff Act (hereinafter referred to as the Schedule) and the same was paid by the firm on the 10th of June, 1969.

2. On the 5th of July, 1972 the firm claimed a refund of 90% of the duty paid by it on the ground that the goods, imported by it had been exempted from import duty to that extent by notification No. 118, Customs, dated the 20th of August, 1965 issued by the Government of India and amended later from time to time (hereinafter referred to as the notification). The Assistant Collector of Customs rejected the claim for refunds on the ground that the application made by the firm was time-barred. The firms went up in appeal to the Collector of Customs, who held that the claim for refund had been rightly rejected as time-barred. The firm then filed a revision petition with the Government of India who expressed the opinion that no exemption in relation to the goods imported by the firm had been declared by the notification. The firm, therefore, has invoked the writ jurisdiction of this Court with a prayer that the order of the Government of India (which is dated the 12th of October, 1973) be quashed by a writ of certiorari.

3. Item 63 (20-A) above mentioned declared that 'stainless steel plates and sheets' shall be liable to Customs duty at the rate of 100% ad valorem if imported from any country other than Burma. Item 63 (14) appearing in the schedule, on the other hand, states that the Customs duty leviable on 'iron or steel hoops and strips, not otherwise specified' shall be liable to Customs duty at the rate of 40% ad valorem only. By the notification the rate of duty payable under item 63 (14) of the schedule in the case of 'cold-rolled hoops and strips of stainless steel of 250 mm., width or more was reduced to 10% ad valorem.

4. According to the firm, the goods imported by it were cold-rolled strips of stainless steel having a width of more than 600 mm that they were liable to customs duty at the rate of 10% ad valorem only under the notification and that the firm was entitled to the refund of the excess duty charged by the Customs authorities.

5. The case propounded on behalf of the Government of India and the Assistant Collector of Customs (respondents Nos. 1 and 2 respectively before me) is that the goods in question were not strips within the meaning of item 63(14) of the schedule, but were sheets covered by item 63(20-A) thereof and that the duty at the rate of 100% ad valorem had been correctly charged from the firm. The sole question which requires determination, therefore is whether the goods can be classified as sheets. If the answer to that question is in the affirmative, the goods would fall within item 63(20-A) of the schedule and not under item 63(14) thereof. If, on the other hand, the goods are found to be strips and not sheets, the exemption claimed by the firm will have to be extended to them.

6. The terms 'plates', 'sheets' and 'strips' are not defined in the Tariff Act and must, therefore be given the meaning assigned to them by the trade in general. In this connection learned Counsel for the firm has drawn my attention to Appendix A forming part of the publication entitled 'Glossary of Terms relating to Iron and Steel' published by the Indian Standards Institution, which is a statutory body. The foreword to the publication states:

This Indian Standard was adopted by the Indian Standards Institution on 31st March, 1962, after the draft finalised by the Metal Standards Sectional Committee had been approved by the Structural and Metals Division Council.

This standard has been prepared for the guidance of the manufacturers and consumers to assist them in the correct interpretation of the common terms used in the iron and steel industry. It is hoped, this glossary of terms will help in establishing a generally recognized usage and eliminate ambiguity and confusion arising out of individual interpretation of terms used in the industry.

Terms dealing with the special applications of iron and steel products are covered by separate Indian Standards devoted to the subject, for example Glossary of Terms Relating to Welding and Cutting of Metals, Glossary of Terms Relating to Foundry Technology, etc.

In the preparation of this standard assistance has been derived from B.S. 2094 (Parts 1 to 8): 1954 Glossary of Terms Relating to Iron and Steel, issued by the British Standards Institution.

This standard is intended mainly to cover technical definitions of terms relating to iron and steel, and it does not necessarily include all the legal meanings of the terms.

This foreword, in my opinion, provides a clear- indication that the meanings assigned in the publication to various terms conform to trade practice prevailing in India. The relevant part of Appendix A consists of items 5, 6 and 7 appearing therein and is reproduced on the next page:

APPENDIX 'A'.

Table giving shape, dimensions, etc., of various products.

__________________________________________________________________________________________

Sl. Product. Dimen- Width Other dimen- Shape Type of Produced Condition Type of Intended

No. sions in mm sional of edge cor- in of supply. working. for.

Thickness. limits section. ner.

___________________________________________________________________________________________

5. Plate 5 mm and 600 mm. .. Rectan- .. .. Straight Hot or cold ..

above. and above .. gular .. .. lengths rolled.

6. Sheet. Below 600 mm. .. Rectan- .. .. Straight Hot or cold ..

5 mm. and above. gular lengths. rolled.

7. Strip 10 mm and .. .. Rectan- Mills Tri- .. .. Hot or cold ..

below. gular mmed or rolled

sheared.

(a)Narrow .. Below .. .. .. .. Straight .. ..

strip .. 600 mm. lengths or

Coil form.

(b)Wide .. 600 mm. .. .. .. .. Coil form. .. ..

strip and above

___________________________________________________________________________________________

The terminology used in Appendix A above extracted was adopted by the Central Board of Excise and Customs for the purpose of levying excise duties through tariff ruling No. 23 of 1965, which was reproduced by the second respondent in his public notice No. 14 of 1966 dated the 22nd of January, 1966 and as extracted hereunder:

For the purpose of assessment of flat products falling under sub-items (ii) and (iii) of item 26-AA of the Central Excise tariff and for the purpose of giving the benefit of the exemption in notifications 32 of 1965 C.E. dated 28th February, 1965 or 133 of 1965 C.E. dated 20th August, 1965 as the case may be the following definitions may be adopted until further orders:

(i) Plate: A hot or cold rolled flat product rolled from ingot or slab in rectangular cross sections of thickness 5 mm and above and width 600 mm and above and supplied in straight lengths. Note: If a manufacturer happens to produce plates in thickness range exceeding 10 mm with width less than 600 mm these may also be assessed as plates of the effective rate.

(ii) Sheet: A hot or cold rolled flat product rolled in rectangular cross sections of thickness below 5 mm and of width 600 mm and above and supplied in straight lengths.

(iii) Strips: Hot or cold rolled flat product (other than hoops) rolled in rectangular cross section of thickness of 10 mm and below and width below 600 mm with rolled-sheared or trimmed edge and supplied in straight length or in coil form.

B. Wide strips: A hot or cold rolled flat product, rolled in rectangular cross sections of thickness 10 mm and below and width 600 mm and above with rolled, sheared or trimmed edge and supplied in coil form only.

(iv) Hoop: (baling hoop iron) A hot rolled flat product rolled in rectangular cross-section of thickness less than 3 mm and width less than 75 mm.

(v) Skelp: Hot rolled strips with mill edge slightly levelled and used for making welded tubes.

It is to be noted that the terms 'plates', 'sheets' and 'strips' are not defined in the Central Excise and Salt Act either, so that the tariff ruling above extracted must be presumed to conform to the trade practice. In this view of the matter I see no reason why they should not be assigned for the purpose of the Tariff Act the same meanings respectively as have been adopted for them in relation to the levy of excise duties. The main difference between 'sheets' and 'strips', according to those meanings is that while strips have either a length of less than 600 mm or are supplied in coil form, sheets are always supplied in straight lengths and have a width of more than 600 mm. This is how the trade in general distinguishes sheets from strips.

7. Learned Counsel for the respondents, on the other hand, has vehemently contended that 'sheets' and 'strips' are distinguishable from each other according to the instructions issued by the Central Board of Revenue and Customs on the Customs side in the year 1934 and reproduced at page 436 of the Fourteenth Edition of a compilation headed 'Indian Customs Tariff Guide' and published by the Government of India. Those instructions, in so far as we are concerned therewith, are to the following effect:

______________________________________________________________________No. of item in Tariff Advice. Authority.Schedule.______________________________________________________________________63. Section XV For the purposes of assessment G.B.R. Inst.(Cus.)under this section all pieces of I of 1934.iron or steel of uniform thick-ness and which will be classifiedaccording to the following table.Thickness Width Description.1. Less than 1/8 in. Not greater than 5 in. Hoop or strip.2. Less than 1/8 in. Greater than 5 in. Sheet.3. Not less than 1/8 in. but Not greater than 5 in. Hoop or strip.less than 3/16 in.4. Not less than 1/8 in. Greater than 5 in. Plate.but less than 3/16 in.______________________________________________________________________

If this classification were adopted, it would, no doubt, strike at the very basis of the claim made by the firm. But then I do not think that it represents correctly the meanings assigned to the terms 'strips', 'sheets' and 'plates' as they have been understood by the trade in the recent past. The Central Board of Revenue and Customs has not indicated in the instructions above extracted the background thereof or the reason why various pieces of iron or steel were classified as stated. It may, however, be that the classification adopted by the Board was in conformity with the trade meanings of the terms 'strips', 'sheets' and 'plates' as assigned to them by the trade way back in 1934. Much water has flown under the bridges since then and India is a far more developed country industrially then it was in the thirties, and the contents of the compilation published by the Indian Standards Institution referred to above appears to me to be a far more reliable guide for the purpose of the classification in hand than the instructions issued by the Board in that behalf more than 40 years earlier. In coming to this conclusion, I have been influenced not only by the high authority from which the compilation last mentioned proceeds and the foreword contained therein, but also by the fact that since 1965 the Board itself has adopted that classification for the purpose of levying Central Excise duties.

8. Learned Counsel for the respondents has also submitted that this Court should not give any relief in the instant case even if it concludes that the goods imported by the firm were covered by the exemption contained in the notification. The submission is sought to be supported by a contention that the Customs authorities having rejected the firm's claim on the ground of time-bar and not having had an opportunity to decide the claim on merits, the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India should not be exercised in favour of the firm. I see no logic behind this contention which also is not factually correct. The claim for refund was no doubt dismissed as time-barred by the Assistant Collector of Customs as also by the Collector of Customs; but then the Government of India rejected it not only on the basis that it was time-barred, but also on merits. The decision of the Government of India on merits being legally unsustainable, the firm has no other remedy except the one it has now sought.

9. In the result, the petition succeeds and is accepted. The order of the Government of India impugned in the petition is quashed and the respondents are directed to refund to the firm any duty in excess of that which it was liable to pay in respect of the goods in question on the basis that they were cold-rolled strips of stainless steel of more than 250 mm width falling within the ambit of the notification. In view of the complicated question of law involved, the parties are left to bear their own costs.


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