9911796707
TMI Blog1985 (12) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty payable will be 40% ad valorem. A subsidiary question that might arise if the goods are found to fall under Item 63(14) is, whether the duty at the rate of 40% ad valorem is further reducible by applying the Notification No. 118, Customs, dated 20.8.1965 (hereinafter referred to as the notification). 2. Before entering into the controversy as such, let us give the admitted facts. All the respondents/importers had actual users licences to import stainless steel sheets. On the basis of such import licences, they imported the goods and declared before the Customs Authorities that the goods imported were stainless steel sheets in coils. Accepting the declaration of the importers, the Authority levied duty at the rate of 100% ad valorem in accordance with Item 63(20-A). The respondents importers, after paying the duties so levied, cleared the goods, and thereafter preferred applications for refund of the excess duty paid by them on the ground that the goods imported were exigible to duty only under Item 63(14) read with the notification. The Assistant Collector found in 48 out of 54 cases the applications were time barred under section 27(1) of the Customs Act and therefore r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judge preferred the one relied on by the counsel for the importers/petitioners. The learned Judge observed as follows :- "The Central Board of Revenue and Customs has not indicated in the instructions above extracted the background thereof or the reason why various pieces of iron or steel were classified as stated. It may, however, be that the classification adopted by the Board was in conformity with the trade meanings of the terms "strips", "sheets" and "plates" as assigned to them by the trade way back in 1934. Much water has flown under the "bridges since then and India is a far more developed country industrially than it was in the thirties, and the contents of the compilation published by the Indian Standards Institution referred to above appears to me to be a far more reliable guide for the purpose of the classification in hand then the instructions issued by the Board in that behalf more than 40 years earlier. In coming to this conclusion, I have been influenced not only by the high authority from which the compilation last mentioned proceeds and the foreword contained therein, but also by the fact that since 1965 the Board i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l orders of the Government of India, though independent, substantially they are common in substance. Therefore, extracts taken from any one of the orders of the Revisional Authority will be applicable to the other cases in this sub group of six cases. The following extracts from the revisional order will not only be helpful but also relevant to decide the dispute in these cases: "The advocate submitted that in this case the goods were described as stainless steel sheets in the relative invoices. In the manufacture certificate dated 29.12.1972 forwarded by the petitioners under their letter dated 3.10.1973 the goods are described as prime quality stainless steel sheets in coils. In the Bill of Entry also, the petitioners themselves declared the goods as stainless steel sheet. These facts are not disputed. It is true that declaration by the foreign suppliers or the importers cannot alone be made the basis for classification of goods under the Indian Customs Tariff, but it is also equally true that such declaration is not inconsequential. If the Department finds that such declaration represents the true and correct character and nature of goods in the trade, it is accepted, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rips' and 'sheets' given in the IS 1956 : 1962 (as amended) vary with the dimensions given in the Brussels Nomenclature and the specifications of AISI viz., American Iron and Steel Institute. "According to AISI, a 'sheet' has width of 24 inches and over and a 'strip' has width of under 24 inches (24 inches are equivalent to 609.6 mm. approximately). Thus, according to AISI, a sheet has width of 609.6 mm or more and strip has width of less than 609.6 mm. The impugned goods have been supplied as per AISI 304 as indicated in the invoice itself and according to AISI specification the impugned goods are 'sheets'. Thus even the specification, according to which the goods have been manufactured, controverts the petitioners and claim that these are 'strips'." 8. Let us now set out the rival contentions. Mr. Narasimhan, learned Senior Standing Counsel for the Central Government submitted that when the importers admittedly had only actual users' licences for the import of stainless steel sheets and Bills of Entry as well as their declaration also to the effect that what they had imported were only stainless steel sheets, it is not op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in The Assistant Collector of Customs, Madras v. Premraj and Ganapatraj Co. Madras Electrical Conductors (P) Ltd. reported in 90 L.W. 719 and Dugra Shankar Industries Vijayawada v. The Government of India, Ministry of Finance, Department of Revenue and Insurance, New Delhi and Another reported in 1979 E.L.T. (227). 10. He next contended that the authorities should have considered first the issue whether the goods imported were stainless steel sheets or strips before rejecting the applications for refund as time barred. The Revenue cannot retain the duty illegally collected in excess of authorised levy in violation of Article 130 of the Constitution of India. To such cases, section 27(4) of the Customs Act, 1962 cannot be pressed into service by the Revenue. He also submitted that it is only after the assessment is over and the goods are cleared, the question of claiming the refund will arise. Therefore, there is no force in the argument of the learned counsel that it is not open to the importers to apply for refund of excess duty after the clearance of the goods. The learned counsel, however, stated that we can proceed on the footing that in all the cases, the actual users' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... users' licences for the import of stainless steel sheets. The contract with the foreign seller was also for the import of stainless steel sheets. Though in two cases, namely, cases relating to M/s. Paxal Corporation Limited, Writ Appeal 238 of 1978 and Writ Appeal 7 of 1979, an attempt was made before the Revisional Authority to show that what was imported was strip', the same was not accepted by the Revisional Authority on facts, and the Revisional Authority gave a finding on the basis of well-considered reasoning that the entry in the invoice as 'strips' was a wrong description. This finding has not been challenged in the affidavits filed in support of the writ petitions. Therefore, in all these six cases, the import was of 'stainless steel sheets'. It is also common ground that while clearing the goods, a declaration was given to the effect that the goods imported as well as the foreign seller understood the 'goods' commercially as stainless steel sheets. If the Revisional Authority had taken note of these facts and rejected the applications for reassessment and consequentially refund of the excess duty, we do not find any good reason to interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are not prepared to take the description in the invoices in view of the fact that in one of the cases at least, dealt with by the Revisional Authority; there was misdescription in the invoice. Moreover, on the basis of two xerox copies of invoices alone, we cannot presume that the goods imported were cold rolled particularly when the goods themselves are not available for testing in case of necessity. Above all, one more relevant material as pointed out in the revisional order in that the goods imported have been supplied as per AISI 304 as indicated in the invoice itself and according to AISI specification, the goods despatched are 'sheets'. Therefore, even the specification according to which the goods have been manufactured, controverts the importers' claim that these are 'strips'. By their own conduct, the importers avoided any such test by the authorities at the earliest possible time. The conduct of the importers also makes this Court not to exercise the discretion even if it is to be exercised in their favour. The Revisional Authority ultimately found that 'since the goods in question are not cold rolled 'strips', any reference to the notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of the classification in hand than the instruction issued by the Board in that behalf more than 40 years earlier. In coming to this conclusion, I have been influenced not only by the high authority from which the compilation last mentioned proceeds and the forward contained therein, but also by the fact that since 1965 the Board itself has adopted that classification for the purpose of levying Central Excise duties." 15. If only the facts as presented before us had been brought to the notice of the learned Judge, we do not consider the learned Judge would have come to this conclusion. Further, it would have been unnecessary for the learned Judge to go into this question once the goods imported were found to have been treated commercially both in the country of shipment and in the country of importation as stainless steel sheets. Any reference to the meanings given by the Dictionary or other Standard Institution will not arise on the facts of these cases. As we have independently arrived at a conclusion that the goods imported were stainless steel sheets, satisfying the description found in Item 63(20-A), we need not go into the correctness or otherwise of the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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