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TMI Blog1991 (4) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... 40% ***** ***** ***** (d) auxiliary equipment, as well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components required for the initial setting up of a unit, or the substantial expansion of an ex isting unit of a specified : 1. Industrial plant: ***** ***** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As a result from time to time they obtained import licences for the phased implementation of the licensed capacity of the said units. 3. In this case we are concerned with the import of 5000 empty gas cylinders for the said units. On 30th April, 1975 the petitioner's application for import of the said empty gas cylinders was approved by the Ministry of Industry and Civil Supplies. The papers were then forwarded to the Chief Controller of Imports and Exports (CCI & E) New Delhi by the said Ministry. On 20th May, 1975 the petitioner applied to the Director General of Technical Development (DGTD), Government of India for making a recommendation to the CCI and E to make an endorsement on the petitioners' Import licence to be granted by the CCI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the said contract. By a letter dated 10-1-1979 the respondent No.l refused to register the said contract and as a result rejected the petitioner's claim for assessment under Heading 84.66 of the Customs Tariff Act, 1975. 6. This application was moved by the petitioner in 1979 challenging the refusal of the respondents to register the said contract under the said regulations and praying for a direction on the respondents to assess the said cylinders under Heading No. 84.66 of Section XVI of the Customs Tariff Act, 1975. 7. On 18-1-1979 a Rule Nisi was issued as prayed. An interim order was also issued in terms of prayer (e) restraining the respondents from levying any duty on the import of the said cylinders except under the Heading 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court in CIT, Amritsar v. Straw Board Manufacturing Co. Ltd. reported in AIR 1989 S.C. 1490 and in Tata Oil Mills Co. Ltd. v. Collector of Central Excise reported in 1989 (4) S.C.C 541 = 1989 (43) E.L.T. 183 (S.C.) in this connection. 9. The respondents on the other hand have argued. (1) The phrase 'initial setting up' must be construed with reference to the first commissioning. In other words in order that imports may qualify under Heading 84.66 they must be required at the beginning. (2) The view of the respondent No.l was in any event not so unreasonable justifying interference under Article 226 of the Constitution. (3) The CCI & E and DGTD were 'busy bodies' who had no business to make any recommendation regarding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise. If the petitioner had been in a position to import all the cylinders in 1966, the Customs Authorities by their own reasoning would have permitted their importation under Heading '84.66'. It is illogical therefore to deny the petitioner the benefit of Heading '84.66' because the very same number of cylinders is being brought in stages. 13. Following the principle of construction elaborated by the Supreme Court in M/s. Goodyear's case (supra) I hold that the language used in Heading '84.66' even strictly construed includes the setting up of a unit in stages for the first time. 14. Secondly the Customs Authorities cannot dismiss the recommendations and endorsement of the DGTD and the CCI & E as being "certificate of busy bodies". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uraging an industrial activity a liberal construction should be put upon the language of the statute." 17. Furthermore para 4 of the Project Imports (Registration of Contract) Regulations, 1965 insofar as it is material provides as follows - "Assignment of number to the contract. - The proper officer shall, on being satis fied that the application is in order, register the contract by entering the particulars thereof in a book kept for the purpose." 18. There is no reason for reading the word "shall" used in the said regulation as meaning "may". On the other hand the construction of the word "shall" used in the regulation as casting a mandatory duty on the concerned authority to register the contract is in keeping with the pattern for e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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