TMI Blog1979 (11) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... hosphate was that while the consignment was on the high seas, the ownership in the goods was transferred to the petitioner-company which was to make all arrangements for clearance on payment of Customs duty, port charges, etc. This being an internal arrangement between the petitioner and the 4th respondent, the Bill of Entry and other documents were required to be filed by the 4th respondent. Prior to June, 1972, the petitioner-company thus imported rock phosphate for its manufacturing purposes, and the goods were allowed to be cleared by the Customs authorities under Entry 35 of the First Schedule to the Indian Tariff Act, 1934, under which no Customs duty was payable. A countervailing duty was, however, payable. On 15th April, 1972, Government issued a Notification extending the benefit of Entry 35 with reference to rock phosphate in any form provided it was used as a fertiliser or in the manufacture of fertilisers. In May/June, 1972, the petitioner-company purchased on the high seas from the 4th Respondent, 11,785 metric tonnes of rock phosphate for Rs. 18,50,402/-. The requisite Bill of Lading was filed by the 4th respondent. On 14th June, 1972, the petitioner-company came to k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 4. At this stage, a reference to both these Entries is pertinent. The relevant excerpt of Entry 35 reads as under :- "Manures, all sorts, including.......the following chemical manures, namely,...mineral phosphates, imported in a form indicative of their use for manurial purposes." Entry 87 under the heading "Articles not otherwise specified", reads as under :- "All other articles not otherwise specified." It is not in dispute that what had been imported by the petitioner in its powder form was rock phosphate. It is also not in dispute that rock phosphate is essentially a mineral phosphate. It cannot be rationally disputed that rock phosphate is a chemical fertiliser and hence is manure. So far the requirements of Entry 35 are fulfilled. The question that next arises is whether this rock phosphate was imported "in a form indicative" of its use for manurial purposes as contemplated by Entry 35. In other words, could this rock phosphate imported in the form it was, indicate that it could be used for manurial purposes? The answer must be in the affirmative, as undoubtedly, rock phosphate is a chemical fertiliser. The phraseology of Entry 35 brings to the forefront and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing indicative of its being put to use for manurial purposes and not that it shall be put to use for manurial purposes and none other. There is nothing in Entry 35 to suggest either expressly or by implication that the yard-stick to be adopted is the ultimate or the end-use to which the rock phosphate shall be put to, viz. for manurial purposes. It is enough if the rock phosphate is in a form which indicates that it can be used for manurial purposes. Whether it ultimately is or is not, is of no consequence in order to attract the exemption under Entry 35. Entry 35 emphasises the form and not on the end-use of the rock phosphate imported. If it was the end use that was or intended to be the criterion, then there was nothing to prevent it from being stated so in Entry 35 itself, instead of the words actually used, viz. "in a form indicative of their use for manurial purposes". It is these words that lend emphasis to the fact that it is the form of the article and not the actual end-use to which it is put to, which is the criterion and dominant factor to attract the exemption under Entry 35. 7. What also cannot be lost sight of is that wherever the end-use was, or intended to be, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to, is relevant for the purpose of determining its liability to octroi. After observing that the general principle is well established that where a particular article finds mention in a specific classification, that article cannot be made to fall in the residuary entry, it was held by the Division Bench that what was important for the purposes of the Schedule to the Octroi Rules is not the use to which an article is predominantly or otherwise put because the description of the article does not make any reference to the use of the article. It was further observed that wherever the rule making authority wanted to classify the articles on the basis of their use, an express reference to such use has been made by the rule making authority. After adverting to certain entries expressly classifying the articles on the basis of their use, it was observed by the Division Bench that the presumption must therefore be that whenever no reference to the use of the articles is made the authority intended to take into account merely the description of the article. That decision of the Division Bench in on all fours to the facts of the matter before me. 9. In Dunlop India Ltd. v. Union of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it has employed to effectuate the legislative intent. It is abundantly clear that in Entry 35, the words "imported in a form indicative of their use for manurial purposes" effectuate in no mean measure the legislative intent in thus framing Entry 35, instead of stating in clear and unambiguous words that the end-use had to be taken into consideration for the purpose of attracting the exemption under Entry 35, if that had been the intention. 12. It was urged by Mr. Dalal that the rock phosphate imported by the petitioner was of a general commercial quality as opined by the revisional authority, hence was not liable to exemption under Entry 35. This is only another facet of Mr. Dalal's earlier contention that it is the end-use that must be taken into account before exemption under Entry 35 can be attracted, and cannot militate from the fact that rock phosphate is essentially a chemical fertiliser. Mr. Dalal laid reliance upon the reasons given by the revisional authority which in brief are that the rock phosphate imported by the petitioner in powder form could not be directly used for manurial purposes. As observed by the Division Bench of this Court in Special Civil Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be looked at and the intention must be gathered from the context in which the words in the Entry are used. Mr. Dalal urged that the context would include the heading of Section VI as well as Entry 35 itself. Mr. Dalal further urged that Entry 35(1) must also be read while interpreting Entry 35. Entry 35 is to be found under Section VI under the heading "CHEMICAL AND PHARMACEUTICAL PRODUCTS; COLOURS AND VARNISHES; PERFUMERY SOAP; CANDLES AND THE LIKE; GLUES AND GELATINES; EXPLOSIVES; FERTILISERS"; Entry 35 (1) pertains to nitrate of soda, when imported in a form indicative of its use for manurial purposes. There is nothing in the heading of this Section VI or in Entry 35(1) to enable me to come to any opinion other than the one already expressed by me on the plain reading of Entry 35. If at all, the similarity of the words in Entry 35(1) fortifies the conclusion arrived at by me on the interpretation of the words in Entry 35. 16. Mr. Dalal further urged that in Entry 35 itself there is a reference to the end-use of the product, hence the end-use is a relevant factor to determine whether Entry 35 is attracted or not. In the light of the discussion earlier, there is no substance in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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