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Continental Marketing Pvt. Ltd. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtKolkata High Court
Decided On
Case NumberMatter No. 601 of 1983
Judge
Reported in1987(28)ELT11(Cal)
ActsCustoms Tariff Act, 1975 - Section 3 and 3(1); ;Customs Act, 1962 - Sections 15, 25, 25(2), 45, 46, 48 and 68; ;Customs Rules; ;Customs Regulations; ;Customs (Amendment) Act, 1975; ;Central Excise Act, 1944; ;Constitution of India - Article 226
AppellantContinental Marketing Pvt. Ltd.
RespondentUnion of India (Uoi)
Cases Referred and State of Punjab v. Jallander Vegetable Syndicate
Excerpt:
.....plastic films of less than 0.25 mm. thickness by appellant--eligible for exemption from additional duty--plastic films and plastic sheets different commodities--issue of separate notifications on same day exempting specified plastic films--notification 228/76-cus and other notifications independent--exemption under notification 228/76-cus not affected by issue of other notifications--notfns. nos. 227/76-cus, 228/76-cus dated 2.8.1976, 243/76-cus dated 29.11.1976, 230-cus, 236-cus dated 1.3.1978.;construction of statutes - taxing statute to be construed literally.;rate of duty- customs - writs under constitution--petitioner claiming exemption under notification no. 228/76-cus and filing necessary documents--authorities claiming higher duty--petitioner filing writ petition and obtaining..........films are not included in the list of specified articles and are thus exempted from additional duty. plastic sheets are commodities distinct and separate from plastic films as recognised in commercial parlance as also by the revenue.16. in the publication of the indian standard institute (reprint may, 1979) a plastic film has been described as a sheeting lacing nomoinal thickness not greater than 0.25 mm. the said definition has been accepted in the subsequent publication of the indian standard institute no. 18-2828-1964 18-2828-1964 .17. even the present excise tariff item no. 15a, sub-item (2) recognises the difference between sheets and films and the two articles have been mentioned separately. other notifications issued by the customs authorities from time to time treat sheets.....
Judgment:

Dipak Kumar Sen, J.

1. M/s. Continental Marketing Pvt. Ltd., the appellant No. 1, carries on business of import and export and in course of its business imported into India under valid licences 2973.6 Kgs. (59 rolls) of Polyester plastic unsupported, of the specification 12 micron x 1020 mm x 3000 meters and 10.920 Kgs. (104 rolls) of the said material of specification 25 micron x 1020 mm x 3000 meters by the vessel 'Cristobal Maru' which arrived at Calcutta on or about the 23rd September, 1982.

2. The Appellant No. 1 thereafter filed a bill of entry for warehousing the said goods which were landed at the Port of Calcutta. The said goods however were not warehoused and have been lying at the Port till date. Sometime in January 1983, the Appellant No. 1 applied for release of the goods for home consumption and submitted necessary documents for calculation and levy of customs duty.

3. The Customs Authorities assessed that basic customs duty of 100% plus auxiliary duty as also an additional duty under Section 3 of the Customs Tariff Act, 1975 read with Chapter 15A of the Central Excise, were leviable on the said goods.

4. The Appellant No. 1 contended that under Notification No. 228/76-Cus., dated the 2nd August, 1976 as amended by Notification No. 443/76-Cus., dated the 29th November, 1976 the goods were exempt from the additional duty under the Customs Tariff Act, 1975 and sought to clear the goods on payment of customs duty only. The contentions of the Appellant No. 1 were not accepted by the Customs Authorities.

5. On the 12th April, 1980 the Appellant No. 1 and Sriniwas Rastagir the Financial Controller and the constituted Attorney of the Appellant No. 1, the Appellant No. 2, moved this court under Article 226 of the Constitution against the Union of India, the Collector of Customs and the Assistant Collector of Customs, Group 11, Calcutta, who were impleaded as the Respondents to the application. They are also the Respondents before us in this appeal.

6. On the 3rd May, 1983, a Rule nisi was issued on the writ application calling upon the Respondents to show cause why appropriate writs should not be issued and directions should not be given directing them not to levy or demand any additional duty under the Customs Tariff Act on the said goods and directing them further to release the goods after realising only the Customs duty and issue a detention certificate. An interim order was also passed as follows:

'...subject to the petitioner paying usual customs duty and auxiliary duty and as regards the countervailing duty the petitioner must pay 50% of the same in cash and furnish a Bank guarantee for the remaining 50%. The Bank guarantee must be furnished within a period of six weeks from date to the satisfaction of the Collector of Customs, Calcutta. Till such Bank guarantee is furnished the petitioner shall deposit an equivalent amount in cash with their Advocate-on-record'.

7. In compliance with the said order dated the 3rd May, 1983, the appellants deposited with their Advocate-on-record 50% of the countervailing duty in cash and furnished Bank guarantee for the balance 50%. The Customs Authorities issued a wharf rent exemption certificate dated the 3rd June, 1983 for exemption of payment of rent to the Calcutta Port Authorities for 305 days calculated from the 11th November, 1982 till the 3rd June, 1983 the period for which the goods were lying at the Calcutta Port.

8. The Port Authorities however contended that under the rules of the Port the appellants were not entitled to exemption of rent on the certificate of the Customs Authorities as issued.

9. On the 7th July, 1983, the appellants filed an application in the pending writ petition on which an order was passed on the 17th August, 1983 Impleading the Calcutta Port Trust and the Superintendent of the said Trust as added respondents in the proceedings.

10. An affidavit was affirmed by Banarasi Das, the Assistant Collector of Customs for Appraising Group 11, the Respondent No. 3, on the 16th December, 1983 which was filed in opposition to the writ petition in the meantime.

11. Sometime in December, 1984. the appellants filed another application in the writ proceeding without impleading the Port authorities seeking, inter alia, for an order directing the Customs Authorities to issue a wharf rent exemption certificate on the ground of special examination of the said goods from the 11th November, 1982 till the actual date of delivery. No one appeared on behalf of the appellants at the hearing of the application and the same was dismissed with costs on the 11th January, 1985.

12. On the 5th February, 1985 the appellants made a further application in the writ proceedings praying, inter alia, for a similar order as prayed for in the earlier application that the Customs Authorities be directed to issue a wharf rent exemption certificate on the ground of special examination of the said goods from the 11th November, 1982 till the actual date of delivery. The said application was opposed both by the customs and the Port Authorities.

13. The said application was heard along with the main Rule and were disposed of by a judgment and order dated the 9th May, 1985. The Rule was discharged and the interim order passed on the 3rd May, 1983 was vacated. The present appeal from the said judgment and order.

14. At the instance of the parties the appeal has been heard along with application made therein. By consent filing of paper book was dispensed with and the undertaking given on that behalf by the appellants was directed to stand discharged. The pleadings and records before the first court were placed at the hearing of the appeal and were considered.

15. The case of the appellants is, inter alia, that under the said Notification No. 228/76-Cus., dated the 2nd August, 1976 as amended by the subsequent Notification No. 443/76-Cus.,, dated the 29th November, 1976, articles made of plastic have been exempted from payment of additional duty leviable under Section 3 of the Customs Tariff Act, 1975 with the exception of the following specified articles:

'Tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible including lay flat tubings and Polyvinyl Chloride sheets.'

The appellants contend that plastic films are not included in the list of specified articles and are thus exempted from additional duty. Plastic sheets are commodities distinct and separate from plastic films as recognised in commercial parlance as also by the revenue.

16. In the publication of the Indian Standard Institute (reprint May, 1979) a plastic film has been described as a sheeting lacing nomoinal thickness not greater than 0.25 mm. The said definition has been accepted in the subsequent publication of the Indian Standard Institute No. 18-2828-1964 18-2828-1964 .

17. Even the present Excise Tariff Item No. 15A, sub-item (2) recognises the difference between sheets and films and the two articles have been mentioned separately. Other notifications issued by the Customs Authorities from time to time treat sheets and films as distinct and separate commodities.

18. The case of the Customs Authorities as appearing from the affidavit of Banarasi Das referred to earlier is, inter alia, that polyester film is manufactured from continuously extruded polyester sheet of various thickness. It is denied that sheets and films are different products and it is contended that plastic film is nothing but a thinner sheet of plastic. It is contended that at the relevant date plastic films were chargeable to additional duty @ 30% plus 5% under the Central Excise Tariff under Notification No. 238/82-Cus., dated the 1st November, 1982.

19. Learned Counsel for the Customs Authorities submitted further that the goods in dispute were landed at the Port under a Bill of Entry for warehousing and the goods have remained covered under -the said Bill. The notification of 1976 under which the appellants had been claiming exemption from additional duty have since been rescinded by a subsequent Notification No. 88/85-Cus., dated the 17th March, 1985. The appellants not having cleared the goods earlier and having kept the same under a Bill of Entry for warehousing are bound to pay the duty as currently prevailing.

20. In support of his contentions learned counsel for the customs drew our attention to the following sections of Customs Act, 1962 the relevant portions whereof are quoted hereafter.

Customs Act, 1962;

Section 15 :

(1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force :-

(a) in the case of goods, entered for home consumption under Section 46, on the date on which a Bill of Entry in respect of such goods is prescribed under that section;

(b) in the case of goods cleared from a consumption under Section 46 [on the date on which a Bill of Entry in respect of such goods is prescribed under that section,] warehouse under Section 68, on the date on which the goods are actually removed from the warehouse;

(c) in the case of any other goods, on the date of payment of duty.

Section 43:

(1) Save as otherwise provided in any law for the time being in force, all imported goods unloaded in a Customs Area shall remain in the custody of such person as may be approved by the Collector of Customs until they are cleared for home consumption or are transhipped in accordance with the provisions of Chapter VII.

Section 48:

If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within two months from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof.

21. Learned Counsel also cited V.V. Iyer v. Jasjit Singh, reported in : AIR1973SC194 . In the case, there was a controversy whether the goods imported were spare parts for power driven agricultural machinery falling under Item 74(vi) of the Import Trade Control Schedule or whether the goods were hand operated sprayers falling under Item 74(x) of the said schedule. The Supreme Court accepted the decision by the Customs Authorities and observed as follows :

'In our opinion, there is nothing in the decision of the Collector which can warrant its condemnation as perverse or unreasonable. Even if it be assumed that because of the language used in the two items viz. Items 74(vi) and 74(x) of the ITC schedule there is some room for confusion, it would not be competent for the High Court to interfere in a writ petition with the conclusion or finding of the Collector of Customs regarding the scope and ambit of those items.'

22. The material provisions of Section 3 of the Customs Tariff Act, 1975 read as follows :

'Levy of additional duty equal to excise duty.-

(1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional 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 additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article.

(3) If the Central Government is satisfied that it is necessary in the public interest to levy any imported article [whether on such article duty is leviable under Sub-section (1) or not] such additional duty as would counter balance the excise duty leviable or any raw materials, components and ingredients of the same nature as, or similar to those used in the production or manufacture of such article, it may by notification in the official Gazette, direct that such imported articles shall in addition, be liable to an additional duty representing such portion of the excise duty leviable on such raw materials, components and ingredients as, in either case, may be determined by rules made by the Central Government in this behalf....

(5) The duty chargeable under this Section shall be addition to any other duty imposed under the Act or under any other law for the time being in force.

(6) The provisions of the Customs Act, 1962, and the rules and regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties, shall, so far as may be, apply to the duty chargeable under this section as they apply in relation to the duties leviable under that Act. .. Section 25 of the Customs Act, 1962 provides inter alia as follows :'25. Power to grant exemption from duty, (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs levialbe thereon'.

23. The Notification No. 228/76-Cus., dated the 2nd August, 1976 as it stood amended at the relevant time read as follows :

'G.S.R. 597 (E) - In exercise of the powers conferred by subsection (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts article made of plastics, all sorts, but excluding those specified in the table annexed hereto from payment of so much of the duty of customs as is leviable thereon under Section 3 of the Customs Tariff Act, 1975 (51 of 1975).

Explanation :- for the purpose of this notification 'plastics' means the various artificial or synthetic resins or plastic materials or cellulose acetate and others included in sub-item (1) of Item No. 15A of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944).

Tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible, including layflat tubings and polyvinyl chloride sheets'.

24. Excise duty was leviable on plastic raw materials and articles manufactured in India at the relevant time under Entry 15A, in the First Schedule of Central Excises and Salt Act, 1944 which read inter alia as follows :

15A(1) - The following, artificial or synthetic resins and plastic materials and cellulose esters and ethers, in any form, whether solid, liquid or pasty or as powder, granules or flakes or in the form of moulding powders namely :-

...

(2) Article made of plastics, all sorts, including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible including layflat, tubings, and polyvinyl chloride sheets, not otherwise specified.

But for the notification of 1976 additional duty would be leviable under Section 3 of the Customs Tariff Act, 1975 at a rate equal to the excise duty which was leviable on all articles made of plastic. Polyester film is admittedly an article made of plastics.

25. Under the said Notification No. 228-Cus., dated the 2nd August, 1976 as it stood amended at the relevant time all articles made of plastics excluding the items specified therein, stood exempted from payment of any additional duty under Section 3 of the Customs Tariff Act. The exempted articles specified under the said Notification does not include plastic films and on a plain reading of the said notification plastic films exempted from payment of additional duty.

26. In this context it is to be considered whether the expression 'sheet' is wide enough to cover plastic films. We have already noted the contentions of the appellants on this aspect earlier. In IS:2828-1964, the following definitions are stated :-

'Sheet - A piece of plastic sheeting produced as an individual piece rather than in a continuous length or cast as an individual piece from a continuous length'.

'Film - A sheeting having nominal thickness not greater than 0.25 mm'.

Both in the Customs Tariff Act, 1975 and the Central Excises and Salt Act, 1944 and the notifications issued thereunder plastic sheets and plastic films had been at the material time treated as separate commodities or articles:

27. In Notification No. 227-Cus., dated the 2nd August, 1976 issued under the Customs Tariff Act, 1975 a table has been annexed specifying plastic articles. In Item 3 of the said table cellulose nitrate sheets and cellulose nitrate films have been shown as different articles.

28. By another Notification No. 228-Cus., dated the 2nd August, 1976 issued under the Customs Act, 1975 metalised or plain plastic films were exempted from 25% of the basic customs duty and the entire amount of additional duty. By Notification Nos. 230-Cus., and 36-Cus., both dated the 1st March, 1978 also issued under the said Act, special exemption was given to other types of plastic films.

29. Item No. 15A in the First Schedule of the Central Excises and Salt Act, 1944, as it stands today makes a distinction between sheets and films.

30. Notification No. 238/82 dated the 1st November, 1982 issued under the Central Excises and Salt Act, 1944 exempted polyester films from 70% of the ad valorem Excise Duty. Obviously this exemption did not cover plastic sheets.

31. From the aforesaid it is clear that at the material times plastic sheets and films were treated as different articles both under the Customs Tariff Act, 1975 and the Central Excises and Salt Act, 1944.

32. Learned Counsel for the customs did not make any submission on the Indian Standard Specifications. A faint argument was advanced that in common parlance sheets and films were interchangeable expressions. This was merely a submissions from the Bar and no evidence of such commercial parlance was adduced either from the records or from any extraneous source.

33. For the reasons above, we are of the view that at the material time plastic sheets and plastic films were different articles or commodities.

34. It was also contended on behalf of the Customs Authorities that if ail plastic films were exempted from additional duty by the said Notification No. 228-Cus., then there was no necessity for issuing other notifications on the same date, noted earlier, further exempting specified types or plastic films from levy of Additional Duty.

35. This contention does not stand scrutiny. The Notifications issued at the relevant time were separate and independent of each other. The notifications were not issued subject to other notifications. The Notification No. 228-Cus., dated the 2nd August, 1976 relied on by the appellants were not been expressly rescinded nor revoked by any other notification and read by itself exempt levy of additional duty on plastic films.

36. It might have been intended that plastic films should also be subjected to additional or countervailing duty but that intention was lost sight of when the said Notification No. 228-Cus., dated 2nd August, 1976 was issued. Even assuming that such was the intention the lacuna left in the Notifications cannot be cured or filled up by the court.

37. Law is well-settled that a taxing statute has to be construed literally. A tax cannot be imposed on legislative intent alone. Strict application of a taxing statute even if leads to an unjust or absurd results has to be upheld.

See Commissioner of Income-tax v. Shahzada Nand & Sons reported in : [1966]60ITR392(SC) ; Janahada Sabha Chhindwara v. Central Province Syndicate Ltd., reported in : [1971]79ITR1(SC) ; Yeshwani v. Commissioner of Wealth Tax, reported in AIR SC 135; Rao Ghorpade v. Commissioner of Income-tax v. Vegetable Products Ltd., reported in : [1973]88ITR192(SC) ; Commissioner of Income tax v. Vadilal Lallabhi reported in AIR 1973 SC 1076 and State of Punjab v. Jallander Vegetable Syndicate reported in : [1966]2SCR457 .

38. Last to be considered is the contention of the Customs that if the goods are now sought to be cleared for home consumption, duty at the current rate should be leviable and that presently the said Notification No. 228-Cus., dated the 2nd August, 1976 is no longer in force.

39. It has been alleged in the writ petition that in January, 1983, the appellant No. 1 applied for release of the goods for home consumption and submitted necessary papers for calculation and levy of duty. This allegation has not been denied in the affidavit in opposition filed on behalf of the Customs Authorities. On the contrary it is the case of the customs that assessment for clearance for home consumption was made in January, 1983. The appellants came to this court for a writ so that the goods could be cleared for the home consumption on payment of lawful duty leviable. It was contended that the authorities were demanding extra duty unlawfully. In our view the duty which was leviable in law on the day the writ was issued is payable by the appellants. That the goods were not warehoused and were lying in Port are facts not relevant in the context.

40. We note that the Customs Authorities did not take any steps under Section 48 of the Customs Act for sale of the goods within two months from the date of unloading.

41. The material and relevant aspects of the controversy as discussed above have not been considered at all in the judgment and order under appeal and the same cannot be sustained.

42. The appeal is allowed. The Rule nisi is made absolute. The Customs Authorities, the respondents to this appeal are directed to allow clearance of the goods in dispute upon payment of basic and auxiliary Customs Duties. The Additional Duty under Section 3 of the Customs Tariff Act, 1975 is directed not to be levied. Let appropriate writs be issued.

43. The goods having been left lying at the Port for a long time, a substantial amount of Port charges have been incurred. It is not possible for us to adjudicate upon the validity or otherwise of the charges as claimed by the Port Authorities in the frame of the writ petition. We make it clear that we have not adjudicated on the same in any manner. It is, however, made clear that the goods may be cleared upon payment of all lawful Port charges.

44. The appeal is disposed of accordingly. There will be no order as to costs.

45. All parties to act on a signed copy of the minutes of the operative part of the judgment.

46. Learned Counsel for the Customs prayed for a stay of the judgment and order. We were prepared to grant such stay if the Customs Authorities undertook to be responsible for the Port charges accruing on and from today, if the proceeding ultimately ended in favour of the appellants. Learned Counsel for the customs was not in a position to give such an undertaking and did not press further for stay.

47. Learned Counsel for the Customs thereafter applied orally for a certificate from us that this is a fit case for appeal to the Supreme Court. We are unable to grant such certificate as it appears to us that the decision in this case has turned on statutory notifications and construction thereof and no substantial question of law is involved.


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