TMI Blog2004 (10) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... after referred to as the said Act) the said goods are chargeable to additional duty. However, rate of duty levied is nil as such the said additional duty is not realizable, as unconditional exemption has been granted in respect of these goods. Ordinarily special additional duty equal to sales tax is charged on import of certain goods under Section 3(A) of the Customs Tariff Act. However, sub-section 5 of Section 3A of the said Tariff Act excludes all the goods which is chargeable to duty under the said Act. The said leather goods though no duty is realized, is nonetheless chargeable to duty. Therefore, the said goods should be excluded under the provisions of sub-section 5 of Section 3A of the Tariff Act. Consequently duty already paid is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition. 5.Mr. Mehta learned Advocate appearing for the petitioner contends that the impugned circular has been issued upon absolute misconstruction and misreading of the judgment of the Supreme Court. According to him, going by the provision of sub-section 5 of Section 3A of the said Tariff Act, the goods imported by the petitioner is not subjected to the Special Additional Duty being actually levied though the additional duty under the said Act is chargeable. According to him there is difference between the words "chargeability," "levy" and "actual collection". It is the legislative function to declare the goods are subject to duty being charged. The function of the executive authority is to levy and collect such duty. The 'nil rate' is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Tariff Act or not. The impugned Circular was issued purporting to rely on the judgment of the Constitutional Bench of the Apex Court rendered in case of Collector of Central Excise, Vadodara v. Dhiren Chemical reported in 2002 (139) E.L.T. 3 (S.C.). So it is apposite to examine the exact ratio of this judgment. In my view this judgment was rendered on the fact that fresh re-rollable scrap for which the appropriate amount of excise duty had already been paid, was exempted from excise duty being charged in the event the same were used in any manufacturing process. The same nature of imported scrap was sought to be granted exemption contending that 'nil duty' is also the duty inasmuch as by a notification it was declared that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tobacco Co. of India Ltd. reported in 1978 (2) E.L.T. (J 416). In order to grant exemption in this case under sub-section 5 of Section 3A of the Tariff Act, I think the levy of Additional Duty under sub-section 1 of Section 3 of Additional Duties of Excise is sine qua non. Admittedly, the aforesaid goods is chargeable to additional duties and such duty may be levied and realized at various rates. In this case levy must be a levy in realistic sense, not in notional sense, in other words collectable duty. The whole intention of inserting the sub-section 5 is to relieve an importer from the hardships in making payment twice over again. Sub-section 5 of Section 3A of the Tariff Act is an independent and in addition to what is otherwise payable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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