TMI Blog1990 (8) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986, which exempts goods from the whole of auxiliary duty of Customs provided, they are specified in Col. No. 3 of the Table. In the instant case Colour Scanner are specifically figuring under Sr. No. 46 against Chapter No. 90 of the Customs Tariff of the Table attached to the said Notification No. 311/86. It appears that the Collector of Customs, Bombay allowed the benefit of Notification No. 132/85 to the appellants but denied the benefit of Notification No. 311/86 dated 13-5-1986 by observing as follows - The question that arises is whether the importer can have the same goods assessed under two different Heading No. 98.01 and 90 of CTA for purposes of basic and auxiliary duty. Such a benefit to the importer also gets barred by the proviso to Notification No. 132/85, which states that the goods referred to in this Notification (i.e. goods falling under Heading No. 98.01) can avail of exemption granted under any other notifications to such goods. Once the importers opt for assessment under heading 98.01, the goods i.e. Colour Scanner go out of the scope of Chapter 90 and fall under 98.01. Hence Notification No. 311/86 dtd. 13-05-1986, which extends concession to Colour S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim the benefit of Notification No. 311/86 in respect of auxiliary duty also. 5. It is not in dispute that the appellants opted for assessment under Heading 98.01 on their imported goods and got the benefit of Notification No. 132/85 dated 19-4-1985. This classification of their imported goods under Heading 98.01 was not challenged before us. Hence we are not called upon to decide whether the imported goods, i.e. Colour Scanner fall under Heading 98.01 or Chapter 90 and the limited question before us is as to whether the appellants as stated above is also entitled for the benefit of Notification No. 311/86 which relates to auxiliary duty. Notification No. 132/85-Cus dated 19-4-1985 exempts the goods falling under the Heading 98.01 (in the instant case Colour Scanner) when imported into India for the Project from a basic duty of Customs in excess of 30%, and its proviso further provides that nothing contained in this notification shall affect the exemption granted under any other notification of the Government of India for the time being in force from the duty of customs specified in the said First Schedule in respect of the goods referred to in this notification. From this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rigation project, power project, mining project, project for the exploration for oil or other minerals and such other projects as the Central Government may notify including spare parts and other raw materials as indicated for the maintenance of the plants or project. So, here is a notification in regard to the basic Customs duty for items of project import. There is no dispute that the goods imported in this case have been brought in as an item of a project import and they have been classified under 98.01 for purposes of basic Customs duty. Now, what about auxiliary duty of Customs ? As per Clause 49 of the Finance Bill, 1986, in the case of goods mentioned in the First Schedule to the Customs Tariff Act, or in that Schedule, as amended from time to time, there shall be levied and collected as an auxiliary duty of Customs an amount equal to 50% of the value of the goods as determined in accordance with the provisions of Section 14 of the Customs Act, 1962. These auxiliary duties of Customs are in addition to any duties of Customs charged on such goods under the Customs Act or any other law for the time being in force. 9. For determining the auxiliary duty so payable, we have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er project imports under Chapter 98.01 of the Customs Tariff would be entitled to the benefit of Notification No. 311/86-Cus. dated 13-5-1986, which exempts goods from the whole of auxiliary duty of Customs, provided they are specified in Column 3 of the Table and fall within the Chapter or Chapters of the First Schedule of the Customs Tariff Act, 1975 specified in the corresponding entry in Column (2) of the said Table . [Order per: Sri G. Sankaran - President] - 13. I have heard Shri B.B. Gujral, learned Advocate for the appellants and Shri M.K. Sohal, learned DR for the respondent. 14. The facts of the case have been set out in the order recorded by learned Member, Shri G.P. Agarwal and do not need to be repeated. 15. Learned Counsel for the appellant draws my attention to statutory note 1 to Chapter 98 which reads as follows :- This chapter is to be taken to apply to all goods which satisfy the conditions prescribed therein, even though they may be covered by a more specific heading elsewhere in this Schedule. The submission is that though an article may fall under a specific heading, it would also fall under the relevant heading in Chapter 98 if the conditions la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment in the case of M/s. Hemraj Govardhandas v. Assistant Collector of Customs, Surat and Others - 1978 (2) E.L.T. (J.350). The submission is that though there is no specific bar in Notification No. 311/86 to the simultaneous availment of the benefit of Heading 98.01 read with Notification No. 132/85, the bar is implicit because the benefit of notification No. 311/86 will be available only if the goods are classified under Chapter 90. In the present case, classification under Chapter 90 is to be ruled out because of the goods having been classified under Heading 98.01 at the instance of the appellant. If any relief in auxiliary duty is to be extended in the present case, it is to be in terms of any notification issued in relation to Heading 98.01. But there is no such notification and therefore, the goods would be chargeable to the standard rate of auxiliary duty, namely, 50% ad valorem. 17. I have carefully considered the submissions before me. I propose to consider the issue first on first principles. As is clear from Heading 98.01 read with chapter note No.l to 98, the scheme of the tariff envisages that goods which may be covered by a more specific heading elsewhere in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alia colour scanner falling within Chapter 90 of the First Schedule to the Customs Tariff Act, when imported into India, from the whole of the auxiliary duty of the Customs thereon under sub-section 1 of Section 49 of Finance Act, 1986. There is no dispute that colour scanner, on its merits, falls within Chapter 90 of the Schedule. The notification is specific in respect of colour scanners. There is nothing in the notification which has the effect of debarring colour scanner imported under the Project Imports Regulation, from the benefit of exemption from auxiliary duty of Customs on the ground that it is classified under Heading No. 98.01 of the First Schedule for the purpose of levy of basic customs duty under the said First Schedule read with any notification for the time being in force. To my mind, it is obvious that the fact that the classification of the imported colour scanner has been fixed as Heading 98.01 for the purpose of basic customs duty does not have the effect of debarring it from the benefit of exemption from auxiliary duty of customs in terms of Notification No. 311/86. 19. Now I shall turn to the case law cited before me. Of the several decisions cited, the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any ambiguity in the matter of construction of fiscal law should be resolved in favour of the tax payer rather than the Revenue. 8. It is well-settled rule that on the question of exemption in a fiscal law though a strict construction should be applied, yet what is expressly granted shall not be denied to the tax-payer by falling back upon some other provision found elsewhere. The exempting provisions must always be regarded as paramount. At the risk of repetition, it must be slated that Notification No. 62/83 is specific and has clearly given the exemption with reference to paper making machinery and component parts thereof falling under Heading 84.31, without any exclusion expressed on the ground that it could also come within the general Heading 84.66. Maxwell on the interpretation of Statutes, Twelfth Edition, page 256 quotes the observations of Rowlatt, J. that In a Taxing Act, one has to look merely at what is clearly said : there is no room for any intendment; there is no equity about a tax; there is no presumption as to a tax; nothing is to be read in; nothing is to be implied; one can only look fairly at the language used." 20. It seems unnecessary to refer to any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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