TMI Blog1983 (3) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... countervailing duty was concerned, the same was realised with reference to Item 68 of the Central Excise Tariff. After the goods were cleared on payment of duty as assessed and demanded, refund claims were filed by the party for all the six consignments. 3. The refund claims were lodged on the plea that previously these type of goods, known as woollen rags, were enjoying concessional rates along with other categories of goods, such as woollen waste, etc. by virtue of Government Notification No. 240-Cus/76 but with the introduction of the Budget for the year 1979-80, another notification was issued, being Notification No. 49 of 1-3-1979, giving total exemption from countervailing duty to a number of articles, detailed in the Schedule annexed thereto. However, this description was not with reference to the goods, but to the notifications, covering certain goods and originally in the notification issued on 1-3-1979, Notification No. 240-Cus/76 dated 2-8-1976 which had covered the goods described as woollen rags , was not included. It was in this situation that the goods imported by means of six consignments and cleared during the period 1-3-1979 to 9-3-1979 were charged to counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en up as an appeal. Shri T.V. Krishnamurthy appeared for the appellant on the date of hearing whereas the Department was represented by Shri Kunhi Krishnan. 8. It was observed at the outset that there were originally two causes of actions inasmuch as two orders had been separately passed by the Assistant Collector and even the party had filed two appeals before the Appellate Collector, and it was pointed out to Shri Krishnamurthy that one revision petition filed before the Central Government, could not cover both the causes of action. Although Shri Krishnamurthy urged in the beginning that since the two orders had been disposed of by one appeal by the Appellate Collector, the two original causes of actions stood merged into one, he appreciated and conceded that separate appeals were required to be filed corresponding to the original causes of action. However, in view of the fact this had not been done, he gave statement to the effect that the present appeal may be treated in relation to that order-in-original which covered five Bills of Entry , and, in the circumstances, he would give up the other matter representing only one Bill of Entry. As a sequel to this statement, what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 10. He further built up his arguments, urging alternatively, that in any case countervailing duty, known as : `additional duty equal to excise duty for the time being leviable on a like article if produced or manufactured in India, could not be charged on these items which were imported as rags and old woollen fabrics and furnishing, because they were not excisable goods at all within the meaning of Section 2(d) of the Central Excises and Salt Act, 1944, nor any manufacturing activity, as contemplated by Section 2(f) of the said Act involved. He thus contended that no excise duty would be leviable, on the collection or disposal of these rags in India, and an inescapable inference would be that no countervailing duty could be levied in respect thereto. He also referred to certain authorities as what constituted manufacture within the meaning of the Central Excises Act, so as to hold the particular goods liable to excise duty, and that meanings attached to an article by trade or people commonly dealing therewith, ought to be the governing principle. 11. Shri M. Chatterjee appearing for the Revenue countered these arguments by contending that known canons for interpretat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... areful consideration because it is apparent from the wording of Section 3 of the Customs Tariff Act that the criterion for levy of countervailing duty was that it was recoverable only, if excise duty was leviable on the goods at the relevant time under relevant provisions of the Central Excises Act. This proposition will find support in the authority of Rajasthan High Court in the case of Prem Cables Pvt. Ltd. v. Assistant Collector, Customs, Bombay (1981 E.L.T. 440), wherein it was held in clear and categorical terms that - If excise duty was not leviable on the goods at the relevant time under relevant provisions of the Central Excises Act, the Customs authorities were not entitled to recover the countervailing duty on those goods under Section 2A of the Indian Tariff Act. 14. With this basic proposition in view, we find it worthwhile to advert to the nature of the goods as described in the import documents, namely, the Invoices, and Bills of Entry. We find, on a reference to various invoices, that the goods have been procured from different foreign dealers of Textiles waste, but the import has taken place through the agency of the State Trading Corporation of India (emph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation thereto, which makes it clear that this duty for the time being leviable on a like article if produced or manufactured in India, which, by virtue of the Explanation, would mean the excise duty for the time being in force which would be leviable on a like article, if produced or manufactured in India. This Explanation has obviously been added by way of abundant caution to meet contingencies where though similar like goods may not be under manufacture at the relevant time but in case they would be chargeable to excise duty if manufactured, even then the import of such like articles, would attract additional duty equal to possible excise duty which those articles, if and when manufactured, may attract. 18. The position would be entirely different when not only such like articles are not being manufactured in India but from the very nature thereof they are not such which are likely to be manufactured. These articles described as `old rags ; particularly when the specification in the Invoices, indicate that they were meant for a specific purpose, namely for manufacture of shoddy yarn and were to be so worn out, soiled or torn as to be beyond cleaning or repair , by no straini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contemplation of the C.E.T. 20. In this context, the alternative plea of the appellant that rags as such, if collected in India, would not be termed as excisable goods , as no manufacturing activity was involved, also assumes high degree of plausibility, benefit whereof has to go to the assessee, and there could be no room for entertaining any doubt on this score too; firstly, because, as already observed, Customs did not dispute or doubt the nature of goods for purposes of customs duty, when the goods were under their charge; and secondly, there is nothing on record to cast doubt on the correctness of the description given in Foreign Suppliers Invoices, particularly when the import is through the State Trading Corporation. It is an accepted proposition in the matter of interpretation of fiscal statutes that same meaning should be given to articles as is commonly understood in trade or commercial parlance or would be given by the people in trade and commerce or conversant with the subject or the way they were treated and understood in usual course. This proposition was laid down in unambiguous terms by Hon ble Supreme Court in Dunlop India Ltd. v. Union of India (AIR 1977 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
