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M/s Colgate Palmolive (India) Ltd. Versus Commissioner of Customs, Patna

2016 (9) TMI 360 - SUPREME COURT

Refund of SAD - goods imported from Nepal - Notification No. 124/2000 amending the earlier Notification No. 37/96 and enlarging the scope of exemption from basic customs duty by including SAD - retrospective effect of amendment - exemption from customs, excise duty and also SAD - rates of SAD rectified - Held that: - The exemption which was granted by notification dated 29th September, 2000 was, therefore, in the nature of specific and new exemption from payment of special additional duty, which .....

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ch was not earlier stipulated or the subject matter of protocol. - The reliance on the decision of the case Ralson India Limited v. Commissioner of Central Excise, Chandigarh [2015 (4) TMI 74 - SUPREME COURT] do not asset the case of assessee. - It cannot be also said the issue of notification was a formal ministerial act which got delayed for administrative reasons. It was a conscious act and a deliberate decision which came into existence after due deliberation when it was decided to g .....

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dv. Mr. Arijit Prasad, Adv. Ms. Ruksana Chowdhary, Adv. Ms. Pooja Sharma, Adv. Mr. B. Krishna Prasad,Adv JUDGMENT Dipak Misra, J. Leave granted in S.L.P. (Civil) No. 11487 of 2006. 2. Keeping in view the need to fortify the traditional connection and strengthen the economic cooperation for the purpose of development and mutual benefit, the Government of India had signed the Treaty of Trade with His Majesty s Government of Nepal in July, 1996. Articles III, IV and V of the said Treaty read as fol .....

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uch primary products as may be mutually agreed upon, from each other. Article V Notwithstanding the provisions of Article III and subject to such exceptions as may be made after consultation with His Majesty s Government of Nepal, the government of India agree to promote the industrial development of Nepal through the grant on the basis of non-reciprocity of specially favourable treatment to imports into India of industrial products manufactured in Nepal in respect of customs duty and quantitati .....

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n Nepal, by His Majesty s Government of Nepal, or by an agency designated by His Majesty s government of Nepal that the relevant conditions applicable to the products manufactured in similar small scale industrial units in India for relief in the levy of applicable Excise Duty rates are fulfilled for such a parity, Government of India will extend parity in the levy of Additional duty on such Nepalese products equal to the treatment provided in the levy of effective Excise Duty on similar Indian .....

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nits: Wherever it is established that the cost of production of an articles is higher in Nepal than the cost of production in a corresponding unit in India, a sum representing such difference in the cost of production, but not exceeding 25 percent of the additional duty collected by the Government of India, will be paid of His Majesty s Government of Nepal provided. His Majesty s Government of Nepal have given assistance to the same extent to the (manufacturers) exporters . 4. Pursuant to the af .....

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of the Table to the notification. There is no dispute that the appellant who was importing various dental hygiene products from Nepal was entitled to avail exemption under the notification. As the factual matrix would unveil, it was availing the exemption from the customs duty under the notification. 5. In the year 1998, Section 3A was introduced in the Tariff Act. To appreciate the scheme of the Tariff Act, it is desirable to refer to Section 2 of the Tariff Act, which reads as follows:- Sectio .....

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ported 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. Provided that in case of any alcoholic .....

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lcoholic liquor to which such imported alcoholic liquor belongs. 7. Section 3A which has been introduced in 1998 provides for imposition of special additional duty. The relevant portion of the said Section reads as follows:- 3A. Special additional duty. - (1) Any article which is imported into India shall in addition be liable to a duty (hereinafter referred to in this section as the special additional duty), which shall be levied at a rate to be specified by the Central Government, by notificat .....

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e said notification the Central Government prescribed the rates of special duty. Relevant part of the notification is reproduced below:- Notification No.18/2000-Customs In exercise of the powers conferred by sub-section (1) of section 3A of the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act), the Central Government, having regard to the maximum sales tax, local tax or any other charges for the time being leviable in the like goods on their sale of purcha .....

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f the said Table, Nil rate shall be subject to the conditions, if any, subject to which the goods are exempt either partially or wholly from the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act. 9. After the rates were prescribed, the appellant was asked to pay Special Additional Duty (SAD) and it paid under protest. Thereafter, Notification No. 124/2000-Customs was issued on 29.09.2000 amending the Notification No. 37/96-Customs dated 23rd July .....

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of the Government of India in the Ministry of Finance (Department of Revenue), No. 37/96-Customs, dated the 23rd July,1996, namely:- In the said notification, for the words and figures from the whole of duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 , the words, figure and letter from the whole of the duty of customs leviable thereon under the First Schedule to the said Customs Tariff Act, and special additional duty leviable under section 3A of the sa .....

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short, tribunal ). 11. The stand of the appellant before the tribunal was that Notification No. 124/2000 which amended the earlier Notification No. 37/96 and enlarged the scope of exemption from basic customs duty by including SAD, should be considered as retrospective in view of the language employed in the Treaty entered into between the two countries. It was urged that all goods manufactured in Nepal and imported into India would be exempted from customs duty and equal to the excise duty for .....

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basis of the representations made by the appellant and others seeking clarification on the leviability of SAD Notification No. 124/2000 was issued and hence, it was retrospective in nature. 12. On behalf of the revenue, resisting the stand put forth by the assessee, it was submitted that prior to 29.09.2000 SAD was correctly levied in respect of the imports and there is no justification in treating the notification in question as retrospective, more so, when the notification has clearly stated .....

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he two countries; but the actual import and export is governed by the Customs and Central Excise Statutes and the provisions of the Treaty do not, ipso facto, translate into import and export procedures within India until a corresponding notification in Customs is issued to bring the same into effect. We are of the view that it may be lapse on the part of the Government of India not to issue the notification exempting the imports from SAD prior to 29.09.2000, but that lacuna cannot be filled by .....

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to be clarificatory. The learned Member (Judicial) further opined that earlier notification did not even remotely suggest that exemption from basic customs duty also included the exemption from SAD. That apart, it was held by the learned Member (Judicial) that the earlier notification exempted from basic custom duty and the latter from the SAD. Being of this view, the learned Member (Judicial) dismissed the appeal. 15. The Member (Technical) expressed his dissent and opined that once a Treaty ha .....

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tification No. 18/2000-CUS dated 01.03.2000 and not to Notification No. 37/96 and that having been not done, it can be safely concluded that there was a belated reference and the real intention was to give retrospectivity to the notification. 16. It is apt to reproduce the observations made by the learned Member (Technical):- … A Treaty entered into with a Sovereign State cannot be reneged, merely for want of an act of ministerial lapse or delay, the Treaties have to be given effect to. W .....

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y or not. As there was difference of opinion, the matter was placed before the third Member who was a Member (Technical). He referred to the point of difference which is to the following effect:- Whether the appeal is required to be rejected as held by Member (Judicial) or the matter needs to be referred to the Larger Bench as held by Member (Technical). 19. The third Member referred to the views of the Member (Judicial) and Member (Technical) in extenso; noted the submissions advanced by the le .....

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ospectivity. He further opined that there was no ambiguity in the earlier notification or in the subsequent Notification No.124/2000 and both the notifications operate in special fields - one granted exemption from basic customs duty and the other SAD of customs. Being of this view, he agreed with the Member (Judicial) and ultimately, the appeal stood dismissed. 20. We have heard Shri S. Ganesh, learned senior counsel for the appellant in Civil Appeal No. 8593 of 2003 and Shri A.K. Panda, learne .....

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ies and other charges relating to import and export including quantitative restrictions. Article 4 relates to reciprocal arrangement between the two contracting parties to exempt basic customs duty and quantitative restrictions on import as would be mutually agreed. Having referred to Articles 3 and 4, it is necessary to focus on Article 5. The said Article begins with non-obstante expression and would apply notwithstanding to Article 3. It is non-reciprocal. This Article states that the Governm .....

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riod of five years from 5th December, 2001. 23. We have already reproduced certain paragraphs from the Protocol. To have the correct perspective it is required to be quoted in entirety. It reads as follows:- 1. The Government of India will provide access to the Indian market free of customs duties and the quantitative restrictions for all articles manufactured in Nepal. 2. (i) Import of articles in accordance with the para I above shall be allowed by the Indian customs authorities on the basis o .....

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measure. (iii) In the case of other articles made in Nepal which do not fulfill the conditions required by the Certificate of Origin prescribed at Annexure B including those Articles listed at Annexure C for the purpose of Preferential treatment into India, the Government of India will provide normal access to the Indian market consistent with its MFN treatment. 3. On the basis of a Certificate issued, for each consignment of products manufactured in the small scale units in Nepal, by His Majest .....

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ian customs and Central Excise Tariff. 4. The Additional Duty rates equal to the effective Indian Excise duty rates applicable to similar Indian Products under the Indian Customs & Central Excise Tariff will continue to be levied on the imports into India of product manufactured in the medium and large scale units in Nepal. 4 (i) In regard to additional duty collected by the Government of India in respect of manufactured articles other than those manufactured in small units: Wherever it is e .....

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nied by the Certificate of Origin will normally not be subjected to any detention/delays at the Indian Customs border, border check posts and other places enroute. In case any need for clarification arises, this will be obtained expeditiously, by the Indian border customs authorities from the Indian and Nepalese authorities, as the case may be. 6. Where for social and economic reasons, the import of an item into India is permitted only through public sector agencies or where the import of an ite .....

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an market free from customs duties and quantitative restrictions of all articles manufactured in Nepal, but this would be subject to other paragraphs, for paragraph 2 would indicate that the access to Indian market free from customs duty was subject to conditionalities and also restrictions. Paragraph 2 stipulates, the requirement of certificate of origin which should be as per the proforma prescribed by Annexure B and would not be applicable to Articles listed in Annexure - C for which normal a .....

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and equal treatment to goods/products manufactured by small scale industrial units in Nepal as was applicable to small-scale industrial units in India, who had been granted relief in relation to applicable to Indian customs and Central Excise Tariff. 25. It is pertinent to note here that the relief agreed related to duty chargeable under the head of additional duty . Clause 4 dealt with additional duty applicable on products manufactured by medium or large-scale units in Nepal in which case they .....

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otification No. 37/96-COS dated 23rd July, 1996. It is as under:- Notification No. 37/96-Customs In exercise of the powers conferred by sub-section (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 goods specified in column (2) of the Table below and falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India from Nepal, from the whole o .....

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thereon under the First Schedule to the Tariff Act. It was also subject to the conditions specified therein. 27. It is apt to note here that Section 3A of the Tariff Act was enacted in the year 1998. This was a new provision and had stipulated that in addition to the customs duty and additional customs duty, special additional customs duty would be payable on the goods imported into India, having regard to the maximum sales-tax, local tax or other charges for the time being leviable on the like .....

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ms duty was granted exemption. However, in respect of additional duty provisions of paragraph 3 or 4 were applicable. But, it is significant that the said protocol did not deal with special additional duty. Thus, per se and ex facie it is not possible to accept the position that special additional duty was itself exempted under the protocol. Paragraph 1 would not cover the special additional duty , which was specific and limited as was clear from the exemption notification dated 23rd July, 1996. .....

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98. 29. The exemption which was granted by notification dated 29th September, 2000 was, therefore, in the nature of specific and new exemption from payment of special additional duty, which was otherwise payable in view of the introduction of Section 3A to the Tariff Act. It is difficult to appreciate that the exemption granted vide notification dated 20th September, 2000 to special additional duty was clarificatory or to give effect to the existing protocol. We think so as protocol appended to .....

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additional duty equal to the excise duty, and special additional duty which has reference to sales-tax, local-tax and other charges leviable on the articles of sale and purchase in India. The said distinction is clear from Sections 2, 3 and 3A of the Tariff Act. Section 12 of the Customs Act, no doubt a charging Section, has to be read along with the Tariff Act. In fact, the Tariff Act also provides for further duties in the form of safeguarding duty under Section 8B, countervailing duty under .....

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distinguished. The ratio and finding in Associated Cement Companies Limited (supra) has to be read in the context of the issue involved in the said case as drawing, designs of those goods were not chargeable to duty and were designated as free under the Tariff Act. In Hyderabad Industries Limited v. Union of India 1999 (108) ELT 321 SC, the difference in import under the Customs Act and the Tariff Act was noticed with reference to duty of customs chargeable under Section 12 of the Customs Act, .....

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gh Court has appropriately referred and relied on the view taken by the Bombay High Court in Apas Private Limited v. Union of India 1985 (22) ELT 644 Bombay. 31. At this stage, we would also deal with the judgments relied by the respondents and the circular No.112/2003.COS.31/12/2003 dated 31.03.2003. This circular was issued pursuant to tariff conference of the Chief Commissioners of Customs and the discussions held. Divergence of practice on implementation of exemption under Central Excise Not .....

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commendations of the conference that in the light of the Indo-Nepal Treaty, verification could be undertaken by the Indian customs in Nepal and accordingly there was no reason not to extend the benefit in case of imports made from Nepal under Notification No.6/2002 dated 1st March, 2002. 32. Decisions in the case of W.P.I.L. Limited v. Commissioner, Central Excise 2005 (181) ELT 259 SC and Ralson India Limited v. Commissioner of Central Excise, Chandigarh 2015 (319) ELT 234 SC do not assist the .....

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