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TMI Blog1986 (5) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... ommon order. 2. The appellants imported second hand intersecting gill boxes. The Custom House charged additional duty of customs equivalent to the Central Excise duty under Item 68 of the Central Excise Tariff. The appellants claimed for refund of duty on the ground that countervailing duty was not chargeable on the second hand machines imported by them. The refund claims were rejected by the Assistant Collector of Customs (Refund department), Bombay. The Assistant Collector, while rejecting the refund claims, held that Section 12 of the Customs Act, 1962 does not make any distinction, whether the goods imported were new and old. Appeals filed by the respondents against the orders of the Assistant Collector were allowed by the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty under item 68 of the Central Excise Tariff was in order and according to law and the respondents have no case on merits. 4. Shri C.L. Beri, learned advocate for the respondent has stated that he does not dispute the fact that charging section for additional duty under Section 3(1) of the Customs Tariff Act, 1975 is Section 12 of the Customs Act, 1962, but he has challenged the scope for collecting such additional duty on the second hand goods imported by the appellants. He has argued that it is not the intention of Section 3(1) of C.T.A., 1975 to charge additional duty on second hand goods. He has further argued that in the statement of objects and reasons of the Customs Tariff Act, clause 3 provided for levy of additional duty on i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Section and the Explanation below it. For proper appreciation of the provisions of this Section we consider it worthwhile to reproduce the same hereunder:- 3.(1) Any articles which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Explanation:- In this section, the expression the excise duty for the time being leviable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in the case of Khandelwal Metal Engineering Works, reported in 1985 (20) E.L.T. 222 (SC). After examining the object and reason of Section 3(1) of the Act, the Hon ble Supreme Court held that in the absence of any ambiguity in the wording of Section 3(1) the additional duty referred to in that section could not be treated as countervailing duty. The Supreme Court further held as follows:- Section 2 and 3(1) of the Tariff Act are not charging Sections. The charging section is Section 12 of the Customs Act under which duty is leviable on the taxable event of export of goods from India or the import of goods into India, which is relatable to Entry No. 83 in List I of the Seventh Schedule of the Constitution: Duties of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and quality of the goods imported into India." 9. The imported second hand machines fall under the class of machines . Machines, if produced in India, would attract Central Excise duty under Item 68 of Central Excise Tariff. Therefore, although the imported goods are second hand, being of the same class as machines which, if manufactured, are liable to Excise duty under item 68 C.E.T., would correctly attract additional duty of customs under Section 3(1) of the Customs Tariff Act. In the aforesaid judgment Hon ble Supreme Court laid down that the Explanation under Section 3(1) of the Tariff Act leaves no doubt that the duty referred to in the said section does not bear any nexus with the nature and quality of the goods imported into I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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