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TMI Blog1998 (11) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, which is not such an unit and on that ground rejected their plea. 4. In the case of Bakelite Hylam, the same Collector (Appeals) has further observed :- The bona fides of the importers are not in doubt, however, the Notification qualified one as it contemplates Use in the electronic industry" as appellant themselves admit that they are not in the electronic industry but in plastic industry. Their claim is not sustainable. Had the Notification been unqualified one, the benefit could have been extended, however, in view of the condition of being one in the electronic industry in the Notification goods under reference appear to be not entitled to the benefit laid down in the said Notification." 5. It is the contention of the appellants that they are manufacturers of Surfacing and Industrial Laminates including Copperclad Laminates. They were registered with DGTD and obtained Industrial Licence. They were also registered with Government of India, Department of Science and Technology. It is stated that industrial laminates such as copperclad laminates are widely used in Electrical and Electronic Industries and they are the largest manufacturers of copperclad laminates in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent to the date of import. It is further submitted by them that the Notification does not require for production of a certificate to the effect that the goods are to be used in the Electronic Industry. It is their contention that all that is required to be seen is as to whether the imported goods are capable of use in an Electronic Industry. It is their contention that Electronic Industry does not invest any capital goods for the purpose of etching on copper clad laminates and they buy the ones which are made available to them by the appellants. This being a factual position and Government having taken all these factors into consideration and amended the Notification. Therefore it has to be held that the amendments are clarificatory in nature. It is also pointed out that the Development officer has issued a certificate, dated 21-12-1983 to the effect that the industry is borne on the rolls of their Directorate General for the manufacture of Industrial and Decorative Laminates. The firm uses Copper Foils in the manufacture of Phenolic or Glass Epoxy Copper Clad Laminates for various application such as for making printed circuit boards used in Electronic and Telecommunication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, Bombay - 1989 (39) E.L.T. 431. 3. Heavy Engg. Corpn. v. Collector of Customs - 1990 (45) E.L.T. 131. 4. BHEL v. Collector of Customs - 1990 (47) E.L.T. 415 (T) = 1990 (27) ECR 400. 8. The learned DR arguing for the Revenue submitted that the terms of the Notification are clear and that there is no ambiguity in the same. The words and language of the Notification cannot be interpreted in a manner as to grant the benefit to an industry which is exclusively an Industrial one. The learned DR submitted that the imported machinery should be used in the electronic industry and it cannot be utilised for general industry which manufactured other items as well. It was pointed out that units are registered with Ministry of Plastics and Petroleum and the fact that the subsequent clarifications given by the Department of Electronics does not change the scenario. 9. We have carefully considered the submissions made by both the sides and have perused the judgments cited. 10. The Notification No. 118/80-Cus., dated 19-6-1980 grants concessional benefit and exempts the goods specified in the table, falling within the Chapter 84 or 85 and Chapter 90 of the First Schedule and are used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that reason, the capital goods raw materials for copper foil and copper clad laminates have been allowed concessional rate of customs duty. This letter clearly clarifies the position that the imported item manufactures goods which are exclusively used in the Electronic Industry. This letter was before the lower authorities including other clarifications which has been referred to but not accepted by the lower authorities. The lower authorities did not dispute about the bona fides and the use of the material in the Electronic Industry. The only ground for rejection is that the unit had not been registered as an Electronic Industry. This finding is not based on any terms of the Notification as there is no term in the Notification requiring registration of the unit as an Electronic Industry. So long as it is certified by the concerned recommending authorities that the goods are exclusively used in the Electronic Industry, then the benefit of the Notification cannot be denied. The Notification cannot be read in such a manner as to defeat its purpose and make it otiose. The appellants have explained the reasons as to why their unit had not been registered with Department of Electroni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is seen that both these judgments are applicable to the facts of the present case. The authorities below cannot interprete the Notification in such a manner as to imply that the importers should be registered as an Electronic Industry. The authorities namely, DGTD and Department of Electronics have explained as to how and under what circumstances the registration was under Department of Plastics and it was also clarified that the goods are exclusively utilised in Electronic Industry. Therefore, the lower authorities were bound to have accepted these clarifications and granted the benefit. 13. In the case of J.K. Synthetic (supra), the Hon ble Supreme Court held that the manufacturers claimed the benefit of the exemption issued under Cen- tral Duties and Excise (Retrospective Exemption) Act, 1986. The appellants had been given benefit of the fresh Notification but later the same was sought to be denied. The Hon ble Supreme Court held that on a plain reading of the Notification, the appellants were entitled to the benefit both with regard to excise duty and additional duty that they had paid on the inputs as well as on the final products. The Hon ble Supreme Court examined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empts goods specified in the Table appended to that Notification falling within Chapter 84 or 85 or 90 or Chapter 92 of the First Schedule to the Customs Tariff Act, 1975 which are used in the electronics industry. The impugned goods are mentioned against S.No. 163 of the Table appended to the Notification and described as Trimming Plant for copper she- ets or laminates, complete accessories. The appellants admitted that they are not an electronic industry. Their contention is that these laminates which they manufacture after trimming with the help of machinery are removed from the factory and are used by the electronics industry for various applications like edging of circuit boards etc. It is these laminates as trimmed which are sub- se- quently used by electronic industry. In this context, can it be said that the impu- gned machinery is used in electronic industry? Appellants admittedly are not an electronic industry. They have used the impugned goods in relation to the manufacture of plastic material, i.e., Copperclad Laminates, which would be subsequently used by electronic industry. In fact, Letter dated 21st Dec., 1983 from Development Officer, Plastic Directorate, addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence on hand to prove that such concessional rate of duty covering the equipment is meant for manufacture like them (though not designated as Electronic Industry as such, for reasons explained above) insofar as it relates to the above notification." 24. The appellants, therefore, themselves had entertained doubts about the admissibility of the exemption Notification. Even assuming, therefore, that there is doubt, the benefit of doubt in case of exemption notification has to go to Revenue. 25. The expression for use in printing industry came up for consideration before Hon ble Apex Court in case for Garden Silk Mills - 1997 (91) E.L.T. 263 (S.C.) = 1997 (19) RLT 833 (S.C.). The Apex Court held : 4. The crucial words in this notification are for use in printing industry". That the appellants were printing fabrics is not in dispute. The finding of the Tribunal was that the appellant was a textile industry and the further finding was that the rubber blankets that were imported were not interchangeable and could not be used in the other type of printing presses which were printing books, periodicals, etc. 5. The contention of the appellant is that the use of expression pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y because there are expensive prints on the carton, it would not become a product of the printing industry. 9. In our view, this judgment is a complete answer to the argument advanced by Mr. Salve on behalf of the appellants. The Garden Silk Mills Ltd. produced fabrics. These fabrics may or may not be printed. If any printing is done, the fabric will not cease to be fabric and Garden Silk Mills Ltd. will not cease to be a textile industry and become printing industry." 26Here machine as imported is used in a plastic industry and it is not for use in electronic industry. 27.In view of this, therefore, I reject both the appeals and uphold the impugned orders. Sd/- [Shiben K. Dhar] Member (T) 28. In view of the difference of opinion in terms of the respective order between the Members, the following question arises for determination by a third Member on reference by Hon ble President. Whether the appeals are required to be allowed in Member (J) terms of the order of or The appeals are required to be rejected in terms of the order of Member (T). Sd/- Sd/- [Shiben K. Dhar] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quent Notification 231/83, the stipulation used in the electronic industry has been taken away. It was pleaded that the order of Judicial Member is correct and should prevail. 31. In reply Shri S.N. Ojha, Departmental Representative argued in support of the order proposed by the Technical Member and pleaded that the appeals be dismissed. 32. I have considered the submissions. I have gone through the two orders and the appeal papers. The Judicial Member has taken note of the letters written to the Customs House and the Ministry of Finance e.g., letter dated 28-11-1986 issued by the Joint Director, Department of Electronics to the Director (Customs) in the Ministry of Finance duly recommending the grant of exemption to imports by Laminate Industry. He has also taken note of the subsequent Notification 231/83-Cus., wherein the reference to use in Electronic Industry has been omitted and held that as this subsequent Notification had been issued on several representations by the Laminate Manufacturers Association by the Government realising the difficulty faced by the Laminate Industry in getting the concession, it follows that the Notification issued subsequently is clarificatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronic policy as the said item is exclusively used by the Electronics Industry and hence the manufacture of that item is to be treated as Electronics Industry. No doubt the Department of Electronics is the concerned wing of the Government dealing with Electronics. Their advice can be accepted on questions of fact as to the goods manufactured by the appellants, the other manufacturers to whom their goods are supplied and the manner of use thereof and the resulting final products. But, on the question whether the appellants are themselves to be considered as electronic industry, I am of the view that the Custom House was entitled to consider on the basis of facts and the advice of the Department of Electronics was not finding. Apparently their views were considered and the later Notification was issued safeguarding the interest of the appellants. In the present matter, appellants had themselves admitted that they are not an electronics industry. It is not an admission by mistake which can be corrected later on either by themselves or by the concerned authorities considering the question. There is no scope for such correction in this case. The Technical Member has dealt with the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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