TMI Blog1987 (8) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the additional duty through the State Trading Corporation, which was the agency for the import of this product, since the said product was a canalised one. The State Trading Corporation, when it collected the price from the petitioners, the additional duty was part and parcel of the price paid by the petitioners. In those cases, the petitioners have asked for refund. The petitioners also apprehending levy and collection of additional duty have asked for writs of mandamus to forbear the respondents from so levying and collecting the additional duty in respect of imports for which such payments were not yet made. In some of writ petitions, the petitioners have prayed for the issue of declaration that the levy of duty on 'natural rubber' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 per centage 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.' 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l : Rubber is produced from a wide variety of plants, especially Hevea brasilienis (family Euphorbiaceae) a tall softwood tree native to Brazil, but also from species of Mabes, Manihot, Sapium, Ficus, and others. The milky liquid (latex) found in the inner bark and obtained by tapping (cutting) the bark is coagulated ....... the oldest and simplest technique is by smoking over a fire. For plantation rubber, the trees for which are widely cultivated in Southest Asia, tapping is similar to the method used for wild trees, but coagulation is accomplished chemically. Note ** Coagulate to cause (a liquid) to become a soft semi-solid mass; urdle; clot." It is not possible to spell out from the above definition that any process of manufacture is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be brought within the purview of the residuary Item 68; yet, in view of the exemption notifications, there was and there could be no levy of excise duty thereon and when there was no levy of excise duty, then there could not be levy of additional duty under the Act. In answer, Mr. P. Narasimhan, Senior Standing Counsel for the Central Government, appearing for the Union of India, and the Revenue, would submit that the exemptions regarding excise duty could not be of any avail to the petitioners, with regard to liability for additional duty, because exemptions did not obliterate the factum of the goods being amenable and liable or excise duty and exemptions only suspended such levy and the proper test to be applied is whether the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications, it is not possible to bring in a fiction that the goods is amenable and liable for levy of excise duty and the exemption notification have only suspended such levy and on that basis there could be levy of additional duty under Section 3(1) of the Act. When the very measure for the additional duty is not available, it would be doing violence o the express language and implications of Section 3(1) and the explanation thereto, as construed by the Supreme Court, to work out the additional levy on the fictional basis. Hence, I have to eschew the submission of the learned Senior Central Government Standing Counsel that even if the levy could not be made under Excise Law on account of the exemption notifications, yet the levy must be sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tackled on to the second line of submission made by the learned Counsel for the petitioners. The notification under Section 11C of the Central Excises and Salt Act, 1944, pre-supposes a practice prevalent whereby though duty of excise was leviable, was not being levied; and in that contingency the Central Government by notification has directed the payment of the whole of the duty of excise to be dispensed with. This notification supports the case of the petitioners that there was in fact no levy and collection of duty of excise for the periods in question. In the light of the above discussion, I have to sustain the case of the petitioner that no additional duty can be levied and collected from the petitioners in respect of 'natural rubber' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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