9911796707
TMI Blog1990 (7) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... is alleged that the petitioner is entitled to a concessional rate of assessment of duty. But notwithstanding Notification No. 65-Customs, dated 30-4-1973 and Notification No. 86-Customs G.S.R. 667 (E) dated 27-11-1974, the petitioner has been put to excess import duty. Accordingly the petitioner is entitled to refund, but the same has been refused by the respondent. 2. Although many details are stated in the affidavit, which, for the purpose of this matter before this Court, are not necessary. A few facts, which require mention, however, I may state. It is not in dispute that the petitioner having a licence to import, placed orders with a foreign supplier Messrs. British Industrial Plastics Ltd., Worcestershire, and the goods being C.N. Films arrived at Madras Port on 30-8-1974. When the goods were cleared, they were classified under Item 82(3) Indian Customs Tariff and were subjected to duty at 100% plus 20% countervailing duty which, according to Bill Entry of Clearance for Home Consumption, was valued at Rs. 9,604/- and the duty realised upon that was Rs. 11,224/- and an additional duty equal to excise duty amounting to Rs. 8,451-52p. was also levied. The total duty and additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms would not answer the description of any commodity described in Item 82 (3)(b) of Indian Customs Tariff. The Provisional authority,: however, held that plastic films would answer the descriptions of 'Rectangular shapes'. Thus according to the respondent the goods were correctly classified, under Item 82(3) (b) Indian Customs Tariff by the Appellate Collector of Customs, Madras. 3. Since the facts are not in controversy and nothing else is under challenge except whether the goods imported by the petitioner are taxable under Item 82(3) Indian Customs Tariff or not and whether if found taxable under Item 82(3), the petitioner is entitled to concessions envisaged under Notifications dated 30-4-1973 and 27-11-1974 or not, I shall straightway proceed to deal with the relevant provisions of law and the said Notifications. 4. The goods in question were admittedly 'C.N. Films'. There is no dispute before me that the goods in question were articles made of plastics. Duty under the Customs Tariff Act in respect of artificial resins, plastic materials of various types and articles thereof is leviable under S. 3 read with Chapter 39. Such goods which answer descriptions in the Schedule are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the context of 'foils' and 'sheets'; it will not be possible to accept the contention that articles which have a clear commercial identity as 'films' should be brought within the wide and vague expression "other rectangular or profile shapes", because, if the film is cut into small pieces, each piece will be rectangular in shape. The items imported do not come in a rectangular shape; they are imported as rolls of polyester films. They are not articles of rectangular shape. Nor would it be possible to treat them as of other 'profile' shapes. We are unable to attribute any precise meaning to the expression 'profile' shape but it cannot be taken to be comprehensive enough to take in any shape whatever, as is contended for. If we give the expression "rectangular or other profile shapes" in the table such wide and unrestricted interpretation as is suggested, then practically any article of plastic can be brought within the meaning of one or other of the expressions used in the table and thus the entire exemption can be altogether deprived of any content." The Supreme Court judgment dealt with each description such as tubes, rods, sheets, foils, sticks etc., and found that it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been an explanatory Memorandum to the Ministry of Finance (Department of Revenue and Insurance) Notification 86-Customs, dated 27-11-1974 : "Notification No. 65-Customs, dated 30-4-1973 exempts Cellulose Nitrate Sheets from so much of the basic Customs Duty as is in excess of 60% ad valorem. This exemption was granted in order to provide relief to the industries manufacturing Combs, Spectacle in cottage sector. However, consequent on a change in the terminology used for licensing purpose, the material imported for manufacture of bangles has been termed as Cellulose Nitrate Films. Technically, therefore the benefit of concessional assessment under Notification No. 65-Customs dated 30-4-1973 could not be extended to the C.N. Films, the present Notification purports to specify clearly the materials namely Cellulose Nitrate Sheets and Cellulose Nitrate Films in respect of which the duty concession has been granted." A close scrutiny of these two Notifications therefore will reveal the desire of the Central Government that concession should be given to the small scale/cottage sector industries which manufacture Combs, Spectacle, frames and bangles. When Notification No. 65 was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay. Any attempt to restrict its application served no purpose beyond putting a Small Scale manufacturer to tax thus discriminating between Small Scale Industries dealing with Cellulose Nitrate Sheets and Small Scale Industries dealing in C.N. Films. 6. Since I have taken the view that respondents have wrongly assessed C.N. Films imported by the petitioner under Item No. 82(3)(b) of the First Schedule of the Indian Tariff Act, I have no hesitation in holding that the impugned orders are illegal and without jurisdiction. Accordingly the order of the respondent herein dated 17-7-1982 vide order No. 251-B-82, declining to grant refund of excess duty amounting to Rs. 13,637-72p to the petitioner in respect of Cellulose Nitrate Films imported by the petitioner and cleared on 18-11-1974 is quashed. I, however, say nothing as to when and how a C.N. Film could be subjected to customs duty and at what rate. Learned Counsel for the petitioner has drawn my attention to Item 87 saying that since 'C.N. Films' are not identifiable under any of the items, they have to be assessed under Item No. 87. Since I have taken notice of the judgment of the Supreme Court and the fact that a 'C.N. Film' can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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