2001 (11) TMI 641 - AT - Customs

Summary

Issues Involved:
1. Classification of imported heptene/nonene.
2. Applicability of Customs Notification 158/76.
3. Interpretation of the word "and" in the notification.
4. Compliance with procedural conditions of the notification.
5. Limitation period for issuing the show cause notice.

Detailed Analysis:

1. Classification of Imported Heptene/Nonene:
The respondents imported heptene/nonene and used these chemicals for manufacturing oxo chemicals. There was a dispute over whether these chemicals should be classified as "ATF/Motor Spirit" or "Raw Naphtha." The Chief Chemist's opinion suggested that based on end use and flash point criteria, heptene/nonene should be classified as "Raw Naphtha," whereas based on smoke point and final boiling point, they could be considered as ATF. The Central Board of Excise and Customs decided that heptene/nonene should be classified and assessed as "Raw Naphtha" under Customs Tariff Heading 2710.00 and as "ATF" under Central Excise Tariff Heading 2710.21.

2. Applicability of Customs Notification 158/76:
The respondents claimed the benefit of Notification 158/76, which exempts raw naphtha imported for the manufacture of fertilizers and petrochemicals. The Assistant Commissioner denied this benefit, stating that the respondents did not fulfill the conditions of the notification, such as furnishing an undertaking and maintaining accounts of the imported goods. The Commissioner (Appeals) set aside this decision, holding that the basic conditions of the notification were fulfilled.

3. Interpretation of the Word "And" in the Notification:
The department argued that the word "and" in the notification should be read conjunctively, meaning the imported raw naphtha should be used for manufacturing both fertilizers and petrochemicals. The respondents contended that "and" should be read as "or," allowing the benefit if the raw naphtha was used for either purpose. The Commissioner (Appeals) agreed with the respondents, interpreting the word "and" as "or," thus allowing the benefit of the notification.

4. Compliance with Procedural Conditions of the Notification:
The Assistant Commissioner noted that the respondents did not maintain the required accounts or furnish the necessary undertakings as specified in the notification. The Commissioner (Appeals) found these conditions to be technical and held that the substantive use of the imported goods for manufacturing petrochemicals was sufficient to grant the benefit of the notification. The department contended that all conditions, including procedural ones, must be strictly complied with to avail the exemption.

5. Limitation Period for Issuing the Show Cause Notice:
The Commissioner (Appeals) held that the demand for customs duty was barred by limitation as the show cause notice was issued after four years. The department argued that the demand was within the permissible period under the law.

Separate Judgments Delivered:

Majority Decision:
The majority held that the term "fertiliser and petrochemicals" in the notification should be interpreted to include petrochemicals other than fertilizers. The substantive requirement of the notification was complied with as the imported raw naphtha was used for manufacturing petrochemicals. However, the matter was remanded to the Commissioner to determine whether the procedural conditions regarding the maintenance of accounts were complied with.

Dissenting Opinion:
The dissenting member opined that the word "and" in the notification should be read conjunctively, meaning the exemption would apply only if the raw naphtha was used for manufacturing both fertilizers and petrochemicals. The dissenting member also emphasized that all conditions, including procedural ones, must be strictly complied with to avail the exemption.

Final Order:
The matter was referred to a third member due to the difference in opinion. The third member agreed with the majority view, holding that the term "fertiliser and petrochemicals" should not be restrictively interpreted. The final order set aside the finding of the Commissioner that the products manufactured by the appellant did not conform to the description in the notification. The case was remanded to the Commissioner to verify compliance with the procedural conditions of the notification.