TMI Blog1992 (3) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... shing and industrial use reads as under: 40(a) All kinds of inedible fats, tallow, lards etc. not used as food. (b) Chemicals of all sorts, Sodium sulphate, Sizing salt, Sulphate or iron, Sulphate of Copper, Sulphate of alumina, Silicate of Soda, Caustic Soda and other salts not otherwise specified, Sulphur Chlorate of potash, Strauntia, Zinc Chloride, Magnesium Chloride, Salt petre, Acids of all kinds, Salamoniac, Borax, Sizing flour. Item No. 53 is covered by Class V. The head note of which reads-Perfumes, toilet requisites, Colours and Household goods. 53(a) Hair oil, perfumed oils, perfumery of all kinds, scents, attars, scented material, incense sticks, aromatic chemicals, toilet requisites of all kinds, shaving cream, shaving sticks, tooth powder, tooth paste, pomade, combs, brushes, looking glasses, hairpins, braces garters and suspenders. (b) Scissors, razors, safety razors, blades, knives, pen knives, spoons, forks, cutlery of all kinds, needles of all sorts, locks and keys, stoves and petromax and their part and accessories and hardware articles. (c) Laces, tapes, rings of wood and metal, embroidery articles, celluloid and celluloid articles, beads of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the petitioners ultimately succeed the respondent Municipal Corporation undertakes to refund the amount within one month, without raising any plea of limitation etc . Mr. Chinoy learned Counsel appearing on behalf of the petitioners submitted that the bare perusal of item No. 40(b) in class III and item No. 53(c) in Class V of schedule 1 of the octroi rules will establish that the items imported by the petitioners could attract duty only under item 40(b). Mr. Chinoy submitted that PVC Resin squarely falls within item No. 40(b) because PVC Resin is a chemical as duty certified by the Government classification. The learned Counsel submitted that PVC Resin power is not at all plastic but is a chemical. Mr. Chinoy further submitted that PVC Resin is known in the trade circle as a chemical and taking an over all view of the taxing statute the claim of the petitioners that octroi duty is payable under item 40(b) requires acceptance. Mr. Singhvi learned Counsel appearing on behalf of the Corporation on the other hand contended that the petition under Article 226 of the Constitution should not be entertained as the petitioners have alternate remedy of filing an appeal as provided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petition was admitted eight years before, after notice was issued to the Corporation and though the interim relief was refused to the petitioners, the Corporation gave an undertaking that in case the petitioners ultimately succeed then the excess duty recovered will be refunded. The undertaking clearly indicates that the Corporation was willing to go for hearing of the petition and not resist the petition on the ground of alternate remedy. The second reason for not acceding to the present objection of maintainability of the petition is that the issue involved in the petition is neither complicated one or required any evidence. The Corporation has filed return sworn by Tanaji v. Satre, Deputy Municipal Commissioner on March 21, 1992 and none of the facts assested in the petition are disputed. In paragraph 3 of the petition it is claimed that PVC Resin is imported within the limits of octroi duty for the purpose of consumption in the factory for manufacturing PVC films, tubings, and laminated cotton fabrics. In paragraph 8 of the return while replying to the averments made in paragraph 3 of the petition, the Corporation has not denied that the PVC Resin was imported for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es may be included in different items or in other words the items may over-lap but to ascertain as to under what item the octroi duty can be levied it is necessary to examine whether the import of the article is for a particular user. Item No. 40(b) refers to chemicals of all sorts and item No. 40 falls within class III which refers to the industrial use. It is therefore, obvious that the legislature contemplated that chemicals of all sorts which are imported for industrial use would attract duty under item 40(b). Turning to item No. 53 which falls under class V, the heading of which is perfumes, toilet, requisites, colours and household goods. The perusal of various articles set out in item Nos. 53(a) to (e) clearly reveals that each of the article is put to use as household goods or is the perfume or toilet requisites. Mr. Singhvi submitted that item No. 53(c) refers to an article of 'plastic powder' and urged that the plastic powder can never be used as a household goods or as perfumes or toilet requisites. It is undoubtedly true that we could not ascertain from the Counsel as to for what purpose the plastic powder is used but we cannot over look that the articles of pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd after reference to various standard authoritative books on polymer and Resin it was held that a term plastic is highly restricted and used to describe a product of synthetic origin which is capable of being shaped by flow in some stage of manufacture. While referring to passage in Encyclopaedia britannica, volume 18, the relevant quotation set out in the judgment is as follows:- While the designation 'plastic' is broader generically than the word Resin', both terms are used indiscriminately with respect to synthetic products. It is worthy of note, however, that general usage refers to cellulose derivatives as plastics and not as Resins; and conversely, the synthetic resinous products, particularly those entering into the surface-coating field, are referred to as resins and not plastics . Reference can be usefully made to the decision of Division Bench reported in 1982 Excise Law page 917, Chemicals and Fibres India Limited v. Union of India and others. The Division Bench exhaustively examined various authorities and standard books to determine whether polyester chips are assessable to duty as moulding powders, granules etc. as set out in item 15A of schedule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roi Rules. 8. Mr. Chinoy also invited our attention to Indian Trade Classification-Revision 2 a copy of which is annexed as Ex. 'E' to the petition. The perusal of the exhibit indicates that Division 59 refers to chemical materials and products otherwise specified in Division 51-Organic Chemicals are referred to with the code number and corresponding B.T.N. head or sub-head. The Indian Trade Classification Revision thus supports the submission of the petitioners that PVC Resin is a chemical and consequently attracts item 40(b) of schedule I of the Octroi Rules. The fact that PVC Resin is known in trade circle as a chemical also supports Mr. Chinoy's submission that while recovering octroi duty the entry should be construed as is known in trade parlance. In our judgment, the claim of the corporation that octroi duty is payable in respect of import of PVC Resin under item 53(c) of schedule I cannot be sustained and the petitioners are entitled to the reliefs. 9. Mr. Singhvi then submitted that even assuming that the excess duty was recovered by the corporation under item 53(c) in-stead of under item 40(b) of the 1st schedule of the Octroi Rules, still the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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