TMI Blog1980 (1) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... e. A countervailing duty was however payable. 3. In March, 1970, the petitioner purchased on the high seas from the State Trading Corporation of India, a Government of India undertaking (viz. the 4th respondent, against whom no relief is claimed in this petition), 13,125/87 metric tonnes of rock phosphate in pebble form for a sum of Rs. 20,68,697/-. On arrival of the goods, the Customs authorities proposed to assess them to duty under the residuary Entry 87. Thereupon the Minerals and Metals Trading Corporation of India Ltd., which is also a Government of India undertaking, submitted a representation dated 25th March, 1970, to the Customs pointing out in detail that the rock phosphate in pebble form was not assessable under the residuary Entry 87 but under Entry 35. 4. Sometime between March and June, 1970, an order was passed by the Assistant Collector assessing the petitioner's goods at 60% ad valorem duty under Entry 87. This duty amounting to Rs. 12,41,218/- the petitioner paid under protest, though the difference between such duty under Entry 87 and the countervailing duty under Entry 35 was Rs. 10,39,520/-. On 6th June, 1970, the petitioner applied to the Assistant Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the rock phosphate imported by the petitioner was in pebble form, it could not directly be used for manurial purposes, and hence fell outside the ambit of Entry 35 and within the purview of the residuary Entry 87. Here it may at once be stated that it is not in dispute before me that this rock phosphate imported in its pebble form could not be directly used for manurial purposes since it has first to be pulverised. Thus the answer to the controversy between the parties turns on the interpretation of the words :- "....... in a form indicative of their use for manural purposes", in Entry 35. Do these words suggest that the form of the rock phosphate had to be such as was capable of being used directly for manurial purposes in order to attract assessability under Entry 35. If so, the petitioner must fail and the contention of the Department must be upheld. 8. The relevant excerpts from the impugned revisional order are as follows :- "....Since the goods have been imported in pebble form and it does not represent the form in which they are marketed as fertilizer or used as a fertilizer obviously they will not qualify to be within the purview under Item 35 ICT......" ***** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his entry, viz. "in a form indicative of their use for manurial purposes." It is presumed that Legislature intends to use and uses phraseology in order to best carry out its intent. If the material had to be in a form directly or immediately fit for use as a fertiliser and if such had been the intent of the legislature the entry would not have read in the manner in which it has been framed but such intention of the legislature would have been made manifest by simpler, direct and more appropriate words, for instance, "imported in a form suitable for use" or "imported in a form adapted for use" or the like. The words "in a form indicative" in Entry 35 bring to the forefront in no uncertain terms that the form of the rock phosphate must indicate that it can be or is capable of being used for material purposes, say by pulverising, and not that it must be directly or immediately used for manurial purposes in the form it was imported, viz. in pebble form. The word "indicative" is important and must be given its due meaning. 10. What also cannot be lost sight of is that it is not even the Department's case, and rightly so that rock phosphate, which is a chemical fertiliser and hence man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hate imported in powder form and do not choose to apply the same yardstick in respect of rock phosphate imported in pebble form. 13. Here it may be mentioned that on 18th August, 1969, a Trade Notice was issued stating that natural rock phosphate, a mineral fertiliser covered by Item 14HH of the Central Excise Tariff would be liable to countervailing duty on import into India. A Trade Notice, such as this, is binding on Government. If any authority is necessary for this proposition, the same is to be found in the decision of the Division Bench of the Gujarat High Court in Nav Gujarat Paper Industries v. Superintendent of Central Excise, 1977 E.L.T., J67, where it was held that even if a Trade Notice amounts to not more than executive instructions, it would be binding on the Department and the Department would be estopped from contending that what was mentioned in the Trade Notice should not be adhered to. 14. Mr. Dalal urged that under Entry 35, it is not the articles but its form which should indicate its use for manurial purposes and rock phosphate when imported in pebble form does not indicate that it will be used for manurial purposes. Mr. Dalal further urged that the end-u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore the chemical composition together with the physical form, and not the latter alone, which is the criterion to determine whether the rock phosphate is indicative of its use for manurial purposes. Even the State Trading Corporation in its revision application dated 16th June, 1973 has emphasised this aspect by reference to various authorities and authoritative commentaries, that it is not merely the physical form regardless of the chemical composition which determines the suitability of material for manurial purposes and that both the chemical composition and the physical form collectively form the criterion for determining whether rock is phosphate indicative of its use for manurial purposes. The petitioner's expert Dr. Kane has also stated in his affidavit as under :- "Rock phosphate is mined and graded before shipment and is sold on the basis of its chemical composition in which P205 (phosphorus pentoxide) is the major and only constituent for determining its utility for use for manurial purposes ...... ***** "I am aksed to state what the criterion is for determining the suitability of rock phosphate for use as manure and also whether the physical characteristics o ..... 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