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TMI Blog2006 (8) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty of customs leviable thereon which is specified in the First Schedule as is in excess of 55% ad valorem. The goods were duly assessed by the Customs authorities and the same were cleared on payment of the basic duty of customs at the rate as prescribed under this notification i.e. 55%. Subsequently, on 29-6-1993 the appellant filed a claim for refund of the duty paid in excess with the Assistant Collector of Customs (Refund), New Customs House, Mumbai. Appellant claimed a refund of Rs. 1,31,255/- with interest on the ground that at the relevant time the basic duty under the First Schedule of the Tariff Act on the imported goods was at the rate of 40% and since the duty prescribed in the exemption notification issued under Section 25 of the Customs Act, 1962 can never be more than the rate prescribed in the Tariff Act, the appellant had paid duty in excess to the tune of 15% and, therefore, it is entitled to the refund of the excess duty paid. 3Assistant. Collector of Customs (Refund), Mumbai vide his order dated 28-12-1994 rejected the claim for refund by observing thus : "The party is now claiming refunds on the grounds that tariff rate for Basic Customs duty in the instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Schedule to the Customs Tariff Act, 1975 (51 of 1975), specified in the corresponding entry in column (2) of the said Table, when imported into India for the purpose of manufacture of the goods specified in the corresponding entry in column (4) of the said Table, from so much of the duty of customs leviable thereon which is specified in the said First Schedule, as is in excess of the amount calculated at the rate of 55 per cent ad valorem, subject to the following conditions, namely :-" 10.The goods imported by the appellant fall under entry 23 of this notification and the same reads as under : "23. 48,59,84 (i) Denim Paper Magnetic Tape, (ii) Filter Cartridges Capacitor Grade, (iii) Filter elements Metallised Plastic, Films, Connectors, Relays, Switches, Printed Circuit Boards." 11.Notification No. 192/92 granting partial exemption from payment of auxiliary duty in excess of 5% ad valorem on certain goods which are either partially or wholly exempted from the basic customs duty reads as under : "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), read with sub-section (4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exemption under notification 173/92. Since the appellant was admittedly entitled to the exemption under notification 173/92 but could not avail of the same as the basic duty under the Act was less than 55% i.e. 40%, it could avail of the partial exemption from payment of auxiliary duty given under notification 192/92. Appellant could not be asked to pay the customs duty in excess of the basic duty provided under the First Schedule to the Tariff Act. It was under a misunderstanding of law that the appellant had paid the duty in excess of what was provided under the relevant entry of Tariff Act and, therefore, it is entitled to the refund of the duty paid in excess of the basic duty of the Tariff rate. 15.It is not disputed before us that the goods imported by the appellant are covered under the Exemption Notification No. 173/92. Once it is so, then the appellant became entitled to avail of the exemption under the said notification but the basic duty provided under the Act being less than 55%, i.e., 40%, it could not avail of the said benefit. Its applicability cannot be confined to items of goods in respect of which a reduction in duty is actually availed. What has to be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, the assessee cannot claim any benefit under Notification No. 41/80. This interpretation no doubt leads to an anomaly in marginal cases. If the rate of duty on the part had been 41%, the assessee would have been entitled to a complete exemption from auxiliary duty. On the other hand, if the rate of duty on the part had only been 39% or 40%, he would have to pay the auxiliary duty because the Notification does not apply to it in terms. Counsel however, submits that such anomalies are inevitable in the case of provisions of this type and that, in taxing matters, it is imperative to concentrate on the language of the statute or the relevant statutory instrument. If the wording clearly imposes a tax or gives a relief, that should be given effect to. If the wording does not justify either the imposition or the relief, it should not be extended merely on the ground that there may be some unintended anomaly as a consequence of the interpretation or that the equities of the situation require a more liberal interpretation. 9.There is, however, another way of reading the notifications before us and it is this which appeals to us as the more reasonable one. On this interpretation, re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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