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TMI Blog2001 (8) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... e Polyster film in the coating and calendering machine. Due to constant use the Rolls get damaged requiring repairs and re-conditioning. Appellants sent 10 pieces of Calendar Rolls abroad for repair and re-conditioning vide Shipping Bill No. 8249 dated 10-12-1992 after obtaining a certificate from DGTD to the effect that the same repairs cannot be undertaken in India. The repaired rolls were re-imported into India by appellants on 7-9-1993 vide Bill of Entry Nos. 109401 and 109402 and they claim the benefit of Notification No. 204/76 as amended for basic customs duty. They also claimed nil rate of Additional duty of customs on the ground that the same is not chargeable under Section 3 of the Customs Tariff Act. The Assistant Collector of Customs, I.C.D., Tuglakabad, New Delhi did not accept the plea. Appellants therefore cleared the goods covered by Bill of Entry No. 109401 on payment of Additional Duty of Rs. 20,479.10 under protest. Similarly, goods covered by Bill of Entry No. 109402 were cleared after paying Rs. 47,002.30 as Additional Duty under protest. 4. On the direction of the Collector (Appeals), appellants sought a speaking and appealable Adjudication Order from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ap items of brass would not be liable to additional customs duty (countervailing duty) since "waste and scrap" do not arise as part of manufacture of the main product. 7. In reply ld. SDR referred to the orders of the authorities below and submitted that the only notification applicable to goods imported into India after having been exported for repairs was Notification No. 204/76. Even after carrying out repairs and re-conditioning the goods remain the same for purposes of Section 3 of CTA. No exemption was therefore, allowable under that Notification. As regards the case law relied on by the appellants he submitted that the said cases related to goods repaired or re-conditioned in India and not to goods repaired/re-conditioned abroad. In cases of the present type additional duty would clearly be chargeable under Section 3 of CTA, 1975. The Appellants' contention that the impugned goods belonged to a separate 'class' of goods since they were repaired/re-conditioned goods was also not tenable, as even after repair/re-conditioning the goods remain the same. Ld. SDR therefore submitted that the appellants have not been able to show any infirmity in the impugned order and theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gory refers to a 'like article' which is not so produced or manufactured, the duty leviable would be the duty which is leviable on the "class or description of articles to which the imported article belongs". The expression "class or description of articles to which the imported article belongs" has a wider connotation than the expression 'like article' "produced or manufactured in India". In other words, even if the imported articles are not strictly articles of the like "produced or manufactured" in India, it will still be "like articles" for purposes of the Explanation if they are articles of a "class or description" on which duty is leviable and to which the imported articles belong. The imported articles in the present case are rolls which were repaired/re-conditioned abroad. Even if it is assumed that they do not belong to the first category of "like articles" mentioned in the Explanation for the reason that they are not "produced or manufactured", they were still "like articles" of a "class" or "description" of articles on which duty is leviable. Though, the repaired/re-conditioned articles do not fall in the same "class" of "produced" or "manufactured" articles, they still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he difference of opinion between the Hon'ble Member (J) and the Vice President, the matter submitted to the Hon'ble President for reference to a Third Member on the following points : "Whether in view of Section 3(1) of CTA and explanation thereto, CVD was required to be charged on the articles reimported after repair/re-conditioning or in view of the observation and reasons indicated in the Vice President's orders, the matter was required to be remanded." Sd/- (A.C.C. Unni) Member (J) Sd/- (S.K. Bhatnagar) Vice President [Order per : S.S. Kang, Member (J)]. - The following difference of opinion is referred to the undersigned: "Whether in view of Section 3(1) of CTA and Explanation thereto, CVD was required to be charged on the articles reimported after repair/re-conditioning or in view of the observations and reasons indicated in the Vice-President's orders, the matter was required to be remanded." 16. Learned Counsel appearing on behalf of the appellants submits that in the present case the Countervailing Duty (CVD) is not leviable in view of the decision of the Hon'ble Supreme Court in the case of Hyderabad Industries Ltd. v. Union of India, reported in 1999 (108 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles no additional duty can be levied under the Customs Tariff Act. The levy of additional duty being with a view to provide for counter balancing the excise duty leviable, we are clearly of the opinion that additional duty can be levied only if on a like article excise duty could be levied. The decision in Khandelwal Engineering Works case to the extent it takes a contrary view, does not appear to lay down the correct law. Shri Vaidyanathan contended that this Court should be reluctant to reconsider a judgment which has held the field for a long time, but in our opinion public interest requires that law be correctly interpreted more so in a taxing statute where the ultimate burden may fall on the common man. We hasten to add that we are not overruling the Khandelwal Metal & Engineering Works case in its entirety because the Court also held in that case that brass scrap was in any case an item which was manufactured and, therefore, excise duty was leviable. We have not examined, in the present cases, whether brass scrap can or cannot be regarded as a manufactured item for that question does not arise in the present cases." This decision was delivered by Hon'ble Supreme Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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