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TMI Blog1986 (7) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Central Excise, Ahmedabad within whose jurisdiction Jamnagar falls issued show cause notice dated 4-2-1976 proposing to review this order and this order was reviewed and set aside and amount refunded to the respondents, ordered to be recovered by order dated 29-7-1976. The respondents in respect of this order preferred appeal to Government of India and Government of India by order No. 279-B/78 dated 16-9-1978 remanded the matter to the Collector of Customs Central Excise, Ahmedabad on the ground that there was denial of natural justice in taking the decision. The matter was then heard by Shri K. Srinivasan, Collector of Customs and Central Excise, Ahmedabad. While these proceedings were pending before him, he was transferred as Collector of Customs, Bombay and Government of India, Ministry of Finance (Department of Revenue) by notification No. Cus/64 dated 7-10-1980 appointed Shri K. Srinivasan, Collector of Customs,. Bombay as Collector of Central Excise, Ahmedabad for disposal of this case. By order dated 30-5-1985, the Review notice dated 4-2-1976 proposing to review the order of Collector of Customs granting refund was dropped on the ground that show cause notice dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri B. Sen and the Supreme Court decision cited therein AIR SC 1323 and then the Collector recorded his findings in the following words - The Government of India in their Order-in-Revision referred to above, have examined the issue in detail. They have held that the expression raw wool will have to be interpreted in its popular and commercial sense rather than in its dictionary or technical sense. He cited the famous judgments of the Privy Council in the R.V.S. Planters-Nut and Chocolate Co. Ltd. and that of the Supreme Court in Ram Avatar Budhani Prasad v. Assistant Sales-tax Officer, Akola AIR 1961 SC 1325. In trade practice as well as authoritative books like Kirk Othmer and Fairchild s Dictionary of Textiles use the expression raw wool as synonymous with greasy wool. In fact, it appears to me that the expression raw wool is rather a loose term which ought to be defined in a fiscal statute. In the absence of any such definition, we have to go by the accepted trade and commercial practice, as has been done by the Government of India in the case cited. In view of this, I held that the expression raw wool used in the Export tariff at the relevant time did not cover scou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross examination of any witness or to file any affidavit or counter affidavit and this request was to be considered on its own merit. No such request till the hearing of the appeal was made. 8. At the hearing of the appeal Shri Sundar Rajan, the learned JDR representing the appellant submitted that the procedure adopted by Shri K. Srinivasan, Collector of Customs, Bombay was not in accordance with law. Proper opportunity of meeting the case was not available to the Revenue. While he did not dispute Shri Srinivasan s jurisdiction to deal with the Bombay matter, he challenged the way of his exercising the same. He submitted that in Bombay matter there was absolutely no material before the Collector of Customs, Bombay to have come to a conclusion that Raw Wool and Scoured Wool were different goods. In particular, he drew attention to the fact that after dropping the Jamnagar Matter on 30-5-1985 itself on the ground that notice was time barred, he took up the Bombay Matter for consideration without any notice to those concerned with handling of the case in Bombay Customs House. In that connection he had produced the original adjudication file of the Customs House and has also filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be given any weight because of the opinion of other authorities like Indian Council of Agricultural Research in their letter dated 20-6-1975, opinion of Central Sheep Food Research Institute, Avika Nagar, Rajasthan in their letter dated 25-8-1975 and the opinion of Deputy Director, Textile Commissioner, Bombay in their letter dated 17-10-1975. 11. Shri Sundar Rajan further submitted that unless scoured wool is treated as raw wool, the respondents could not have exported the same as it would have been a banned item for export. In particular, he drew attention of the Bench to respondents export documents where the wool, exported by the respondents was described as raw wool. 12. Shri Sundar Rajan also relied on News Item appearing in Financial Express dated 31-5-1985 and 23-7-1985 for the argument that raw wool and scoured wool are not different. Letter of Shri J.K. Bagchi, Joint Secretary, Ministry of Commerce to Member Customs C.B.E.C. for the same argument. Textile Commissioner s letter dated 27-4-1985 to Collector of Customs (Shri K. Srinivasan) Bombay for the same argument. ."Central Board of Excise and Customs letter dated 23-7-1985 addressed to All Collectors of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that according to this letter scoured wool would fall under category of raw wool covered under the A.P. Cess Act. Similar argument was advanced on the strength of Central Sheep Wool Research Institute, Avika Nagar letter dated 25-8-1975 already referred to above addressed to Shri D.C. Mandal. According to this letter though the appearance and feel might vary, the fibres (of scoured wool) remain still in physical condition which can be described as raw wool. He also relied on the Wool Grading and Marking Rules 1975 for his argument. He also relied on the certificate of NEW ZEALAND WOOL TESTING AUTHORITY which, inter alia, states that scoured wool as used in their certificate relates to raw wool as defined. 13. Relying on two decisions of the Tribunal - Collector of Central Excise, Bombay v. M/s Bakul Aromatics Chemicals Ltd. Order No. 84/86-C and a 5 Member Bench decision in M/s. The Tata Oil Mills Co. Ltd, v. Collector of Central Excise, Madras Order No. 181/86-C [1986 (24) E.L.T. 290], he argued that the process of scouring to which raw wool was subjected to by the respondents could not make it a different product from raw wool. In the first decision the Tribunal he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of proceedings and additional costs. The respondents accepted the suggestion of the Collector of Customs as this could save on time to a large extent as also expenses. It was in these circumstances and understanding that none of the parties led any further evidence whatsoever in the matter of exports from Bombay but agreed to rely on the evidence, proceedings, arguments and submissions led in the matter of exports from Jamnagar to be used in the matter of exports from Bombay. Thus according to the respondents contention evidence led in Jamnagar Matter was also evidence with respect to Bombay Matter. 15. Respondents have produced before the Tribunal documentary evidence and statement of witnesses which was relied on by them with respect to Jamnagar Matter to be admitted as additional evidence. This, as already stated, has been admitted before the Tribunal. The evidence consists of description of scouring process, letter from Wool Woollens Textile Promotion Council dated 27-6-1974, Assistant Collector of Customs letter to the effect that scoured wool cannot be termed as raw wool, letter from office of the Textile Commissioner dated 17-7-1974, to the same effect, letter from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol is concerned, there is no difference between raw and scoured wool. Shri V.B. Verma, Director, Office of the Textile Commissioner, Bombay in his cross examination had stated that raw wool and scoured wool have essentially the same characteristic of raw material, namely, raw wool which is a basic material for production like yarn etc. The common use of raw wool or the scoured wool are the same. 16. Respondents also filed translation of the opinions of Dr. Kuntz. They also relied on Departmental Tariff Advice No. 26/85 reproduced in Bombay Customs House letter dated 9-9-1985 and Bombay-II Collectorate Trade Notice No. 45/85 dated 11-7-1985 as reproduced in Volume 21 of Excise Law Times (T.10). According to this, scoured wool is different from raw wool and classifiable under item 68 of the First Schedule to the Central Excises Salt Act, 1944. Relying on the above, the learned Advocates for the respondents argued that the impugned order passed by the Collector of Customs was based on proper evidence after affording proper opportunity to all concerned and the Tribunal should uphold the finding that scoured wool is different from raw wool for the purpose of export tariff. 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the departmental authorities, it cannot be ignored that no record of hearing dated 27-2-1981 has been filed. This apart the Collector after reciting narration and quashing of the demand by Bombay High Court order dated 7-12-1979 in the opening material part pertaining to the present matter says as follows : I had taken over this file for adjudication since the connected matter of Ahmedabad Collectorate has been assigned to me for adjudication. That case also involved the same issue i.e., whether scoured wool will be covered by the expression, Raw Wool . I had already given a hearing in the Jamnagar case and I thought that the same order will cover this also. However, in that order, I have not considered the merits of the case but I have only gone by the fact that the show cause notice itself was without jurisdiction. 20. Shri Sundar Rajan had during arguments produced the original file of the Collectorate pertaining to the present matter and had also filed copies of the notings. In the notings dated 30-5-1985, we find the following : This file was taken over by me from the Additional Collector as a similar case of Ahmedabad Collectorate was with me for adjn. I bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uity, justice and good conscience so that the procedure adopted inspires confidence. It appears to us that immediately after dropping the Jamnagar Matter on ground of limitation in the issue of show cause notice, the Collector decided to take up this matter for adjudication. After he had dropped the Jamnagar Matter, he had become functus officio in respect of that matter. We have already pointed out how there is no credible material to show that any decision was taken to amalgamate the two matters for adjudication. Having become functus officio in respect of Jamnagar Matter the Learned Collector of Customs could not have made any use of evidence produced and arguments advanced in Jamnagar Matter for decision of the Bombay Matter. This apart in Custom Houses as is well-known, working is not always on individual basis but on institutional basis. Before proceeding to decide the matter it was expected that the Collector of Customs should give proper notice to those actually handling the matter or entrusted with handling of the matter so that the Revenue s point of view and the evidence in support of that view could be placed before the adjudicating officer. This does not seem to have b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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