TMI Blog1980 (9) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... planation clause of section 2A in terms defines the levy as countervailing duty regardless of whether or not a like article is manufactured in India, the petitioner Company has invoked the powers of this Court under Articles 226 227 of the Constitution of India in the backdrop of facts and circumstances outlined hereafter. 2. The petitioner Company imported 22 bales of polypropylene fibre under a Bill of Lading dated December 23, 1976. At the time of clearance a sum of Rs. 87,675/- was levied and collected on the said goods as duty including countervailing duty under section 2A of the Tariff Act. The petitioner applied for refund of countervailing duty paid on these goods on the ground that like goods were not manufactured in India and countervailing duty could not be levied thereon. This contention was rejected by the Assistant Collector of Customs by his order dated May 12, 1976 as per Annexure "A". The petitioner Company preferred an appeal to the Appellate Collector of Customs at Bombay. The Appellate Authority by his order at Annexure "B" dated August 20, 1976 negatived the contention viz., that since polypropylene /fibre was not being made in India at the time of importat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in India at the rates specified in Schedule to section 2 of Tariff Act. Under section 2A of the Tariff Act an additional duty on import of goods is levied. The said section insofar as material deserves to be quoted:- "2A. Levy of countervailing duty. - (1) Any article which is imported into India shall be liable to customs 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 customs duty to which imported article shall be so liable shall be calculated at that percentage of the value of that imported article. Explanation. - In this section, the expression "the excise duty for the time being leviable on a like article if produced or manufactured in India" means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs and where such duty is leviable at different rates, the highest duty." 4. In the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs...." It is, thus, clear that section 2A read with the Explanation provides as under :- (1) Additional import duty shall be payable over and above the duty payable under section 2. (2) Such duty will be equal to the excise duty for the time being leviable on a like article whether or not it is produced or manufactured in India. (3) In case it is produced or manufactured in India, the duty shall be equivalent to the duty payable on such an article in India under the relevant excise provision. (4) In case the article is not so produced, it will be leviable on the class or description of articles to which the imported article belongs. 5. It is, thus, virtually impossible to argue that countervailing duty can be levied provided and only provided the article is manufactured or produced in India or that the manufacture or production of the article in question in India is a condition precedent to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e width and amplitude of the Entry contained in the State List for levy of countervailing duties. Entry 51 does not define the expression "countervailing duties". The expression has not been defined anywhere else in the Constitution of India. In this context Shah J. has observed that "We have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51". With this preamble Shah J. has proceeded to refer to the meaning of the expression in its etymological sense" in which sense it means to counter-balance; to avail against with equal-force or virtue; to compensate for something or serve as an equivalent of or substitute for. Reliance was also placed on the definition contained in Black's Law Dictionary, 4th Edn. at page 421. In the context of these definitions it was observed that Entry 51 empowered the State Legislature to impose duties of excise on alcoholic liquors for human consumption where the goods were manufactured or produced in India and it also empowered the State Legislature to levy countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India, presumably to equalise the burden aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affording to the petitioner personal hearing. In our opinion, it is not incumbent on the revisional authority to afford a "personal hearing" to an applicant. No authority is cited in support of the proposition that a revisional authority is obliged to afford a "personal hearing" in case an applicant claims personal hearing and that upon failure to do so the order would be rendered illegal or void. We are, therefore, unable to accede to this argument. 7. It was finally contended that the petitioner Company had no reasonable opportunity to show that polypropylene fibre which was imported would fall under Item 18(1)(ii)(c) of the Central Excise Tariff. Now, import duty under section 2 of the Tariff Act has been recovered as per the Schedule under Item 46(6) which pertains to staple fibre. The petitioner Company has not disputed the correctness of the levy under this Entry. Item 18(1) of the Central Excise Tariff refers to staple fibre. It cannot be contended that the goods which were imported were staple fibre for the purposes of payment of import duty under section 2 but were not staple fibre for the purpose of excise tariff. However, it appears that in respect of staple fibre unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will proceed on the footing that the averment made in the affidavit-in-reply on this point remains uncontroverted and there is no real or genuine dispute as regards the Item under which the goods would fall for the purpose of ascertaining the duty. 8. On September 16, 1980 when the aforesaid judgment was dictated time was granted to the petitioner up to September 26, 1980 in order to enable him to file an affidavit showing that the goods imported by it would fall under some item other than Item 18(1)(ii)(c) if so desired so that the matter could be remanded to examine the question if it became necessary to do so. On September 26, 1980 Mr. Patel prayed for further time. We have been adjourning the matter from time to time at his instance but even till today. Mr. Patel is not in a position to file the affidavit. Under the circumstances, the petition deserves to be dismissed having regard to the view that we have taken on merits on the basis of the contentions raised in the petition. The petition is, therefore, rejected. Rule is discharged with costs. 9. Learned Counsel for the petitioner applies for a certificate of fitness to appeal to the Supreme Court of India under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X
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