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TMI Blog1991 (5) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants. The examination report and the photographs received from the dock staff revealed that the machine was supplied with gas flushing system but had no vacuumising facility. While, therefore, the importer's claim for OGL was conceded, their request for application of Notification No. 125/86 for duty purposes could not be entertained. The Assistant Collector had observed that the imported machine was basically of the FFS type i.e. form, fill and seal machine and in order to qualify for the benefit of Entry No. 17 of the Notification No. 125/86, the machine was required to have both vacuumising and gas flushing facilities and the machine imported by the importer did not have the facility of vacuumising and as such the benefit of Entry No. 17 could not be extended. He had further observed that Entry No. 18 which was also claimed for those machines where readymade flexible packages were packed by a gas flush packing system and the imported machine was basically an FFS machine and the relevant entry for such machine was Entry No. 17, which, as explained above, was not available to the importer since all the specifications thereof were not satisfied. The Assistant Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teen days. An ocean freighter takes 12 days to sail from U.S. Ports to Asian markets. Air freight takes only hours for about one dollar per pound. Not surprisingly most U.S. beef destined for Asia is frozen. But not for long. Meat packers now wrap beef in air tight plastic and suck out the air. It is called vacuum packaging and it keeps meat fresh for at least 30 days plenty of time for sea freight at about 15 cents per pound. The next step up the technological ladder is controlled atmosphere package or CAB. The air in a package is replaced with another gas usually carbon dioxide or nitrogen which slows spoilage. Cap enables US farmers to sell more than 2,000 tonnes of strawberries alone every year. The fragile fruit is picked in the meaning packed in boxes flooded with carbon dioxide and loaded aboard air freighters by 4 a.m. The bright red berries land in Tokyo, Hongkong and other destination as ripe, juicy, and sweet as the moment they left the field. This list of products that travel the globe under controlled atmosphere is growing. Asparagus sails to Asia by the ton, swaddled in a protective CAP Nectarines will be flown across the Pacific for the first time this summe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and vacuumising facility and the machine imported had only one such facility (gas flushing), he had upheld the findings of the Assistant Collector and had rejected the appeal. Being aggrieved from the aforesaid order, the appellant has come in appeal before the Tribunal. 3. Shri G. Ramaswami, the learned Senior Advocate with Shri M. N. Kothari, Advocate and Ms. Sujata Kashyap, Advocate have appeared on behalf of the appellant. Shri G. Ramaswami, the learned Senior Advocate has reiterated the facts. Shri G. Ramaswami, the learned Senior Advocate pleaded that the appellants had imported automatic form fill and seal packaging machine vide Bill of Entry No. 2519/258 dated 1st August, 1987. Shri G. Ramaswami, the learned Senior Advocate pleaded that the machine imported by the appellants is for the purpose of packaging. He pleaded that if the machine is to be used for the purpose of packaging of meat, then there has to be a different vacuumising system and in case the same is to be used for packing of the potato chips, then there has to be an arrangement for gas flushing as potato chips are brittle and in case for the purpose of packing of potato chips if vacuumising is done, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 125/86-Cus., dated 17th February, 1986 which appears on page 47 of the paper book and has referred to Serial Nos. 17, 18 and 19 of the said notification. Shri Ramaswami pleaded that description at Serial No. 17 is FFS with vacuumising and inert gas flushing . Shri G. Ramaswami pleaded that the word and is to be read as or . He argued that the notification should be interpreted in such a way that it should not lead to absurdity and the construction has to be read in a constitutional manner. In support of his argument, he referred to a judgment of the Supreme Court in the case of R.L. Arora v. State of Uttar Pradesh reported in AIR 1964 SC 1231 where the Hon'ble Supreme Court had observed that if the language used was capable of only one construction and failed to carry out the intention of Parliament when making the amendment, the amendment may have to be struck down if it contravenes a constitutional provision. A literal interpretation is not always the only interpretation of a provision in a statute and the Court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in (1921) 1 King's Bench 403. Shri G. Ramaswami pleaded that Where there are general words of description, following an enumeration of particular things such general words are to be construed distributively, reddendo singula singulis; and if the general words will apply to some things and not to others, the general words are to be applied to those things to which they will, and not to those to which they will not apply; that rule is beyond all controversy. He referred to 3rd edition of Principles of Statutory Interpretation by Justice G.P. Singh at pages 335, 336 and 337, Shri G. Ramaswami again referred to Notification No. 125/86-Cus., dated 17th February, 1986 and referred to Serial Nos. 1 and 6 of the said notification and the description at Serial No. 1 is - 1. Food processing machines namely :- Fruit and vegetable cutting, coring, cubing, slicing, seeding clearing, removing and stem removing machines and he also referred to Serial No. 6 which reads as: 6. Meat processing machines namely - mincing, deboning, mixing, cutting, chopping, flaking and skinning machines (industrial types). Shri G. Ramaswami, the learned Senior Advocate pleaded that a clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the following judgments :- 1. 1989 (1) SCC 255 at page 263 - Koteswar Vittal Kamath v. K. Rangappa Baliga Co. 2. AIR 1968 SC 1450 - Ishwar Singh Bindra and Ors. v. State of U.P. 3. AIR 1986 SC 1162 - M. Satyanarayana v. The State of Karnataka and Anr. 4. 1921 (2) K.B. 403 - Cape-Brandy Syndicate v. Inland Revenue Commissioner. 5. 1984 (2) SCC 183 at 224 - Padmakar Balkrishna Samant v. Abdul Rehman Antulay and Anr. 6. AIR 1964 SC 1230 - R.L. Arora v. State of Uttar Pradesh and Ors. 7. AIR 1965 Kerala 96 - The Food Inspector, Trichur Municipality, Trichur v. O.D.Paul and Anr. 8. AIR 1969 Madhya Pradesh 147 - Municipal Council, Raipur v. Bishandas Nathumal. 9. AIR 1970 Andhra Pradesh 293 - In re: Salem Govindappa Chetty. 10. AIR 1977 Allahabad 310- Dinesh Chandra Srivastava and Ors. v. The State of U.P. 11. AIR 1963 SC 1638 - Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and Ors. and vice-versa. 12. Principles of Statutory Interpretation by Justice G.P. Singh, Third Edition pages 96, 97, 313, 314, 335, 336, 337. He also referred to the bill of entry filed by the appellants which appears on page 41 of the paper book wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. reported in 1978 (2) ELT J 375 and laid emphasis On Para No. 6 where the Hon'ble Supreme Court had held that the rule making authority has not been vested with the power under the Central Excises and Salt Act to make rules with retrospective effect. The retrospective effect if proposed to be given in any notification will be beyond the powers of the rule making authority. He also referred to another judgment of the Tribunal in the case of Cosmic Dye Chem, Palghar v. Collector of Central Excise, Bombay reported in 1984 (18) ELT 6 where the Tribunal has observed that : Since in construction of taxing statutes, it is impermissible to gather the intent of one provision even if ambiguous,, by reference to a subsequently enacted provision unless the later of the two amounted to a retrospective declaration as to the meaning and intent of the earlier. Shri Arora, the learned JDR also referred to two letters which are in the nature of technical opinions and stated that these cannot be relied upon at this stage. Shri Arora also referred to another decision in the case of Orbital Enterprises v. Collector of Customs reported in 1990 (46) ELT 71 (Tribunal), where the Tribunal had held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Customs Tariff Act. Relevant extract of Notification No. 65/89-Customs, dated 1st March, 1989 is reproduced below :- GSR(E) In exercise of the powers conferred by Sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby directs that each of the notifications of the Government of India in the Ministry of Finance (Department of Revenue), specified in column (2) of the Table hereto annexed, shall be further amended in the manner specified in the corresponding entry in column (3) of the said Table. A simple perusal of the Notification No. 125/86-Cus., dated 17th February, 1986 Serial No. 17 shows that the benefit is available to a machine FFS with vacuumising and inert gas flushing. We have perused the commercial invoice which appears on page 44 of the paper book. The description in the invoice has been given as under :- Food packing machinery Covering 2 Nos. automatic form fill seal packaging machine for flexible packaging material with gas flushing/vacuumising your model No. DP 7L(714) complete with spare parts kit and 2 extra as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iver, 286 Ky. 6, 149 S.W. 2d 540, 542. When expression and/or is used, that word may be taken as will best effect the purpose of the parties as gathered from the contract taken as a whole, or, in other words, as will best accord with the equity of the situation. Bobrow v. U.S. Casualty Co., 231 A.D. 91, 246 N.Y.S. 363, 367. Maxwell on the Interpretation of Statutes, 12th edition by P. St. J. Langan published by N.M. Tripathi Pvt. Ltd. at pages 232 to 233 has held as under :- And and or In ordinary usage, and is conjunctive [(1967) 1 A.C. 192] and or disjunctive. (J.W. Dwyer Ltd. v. Met. Pol. Receiver - (1967) 2 Q.B. 970. But to carry out the intention of the legislature (Uddin v. Associated Portland Cement Manufacturers Ltd. - (1965) 2 Q.B. 582; R.V. Surrey Quarter Sessions, exp. Commissioner of Metropolitan Police (1963) 1 Q.B. 990 it may be necessary to read and in place of the conjunction or , and vice versa. The Disabled Soldiers Act, 1601, for example, in speaking of property to be employed for the maintenance of sick and maimed soldiers , referred to soldiers who were either sick or maimed, and not only to those who were both. (Duke, Charitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. [Green v. Premier Glynrhonwy State Co. - (1928) 1 KB 561, p. 568; Nasiruddin v. State Transport Appellate Tribunal - AIR 1976 SC 331, p. 338 : (1975) 2 SCC 671; Municipal Corporation of Delhi v. Tek Chand Bhatia, supra; State (Delhi Administration) v. Puran Mal - (1985) 2 SCC 589 : AIR 1985 SC 741. And as pointed out by LORD HALSBURY the reading of 'or' as 'and' is not to be resorted to, unless some other part of the same statute or the clear intention of it requires that to be done. [Mersey Docks and Harbour Board v. Henderson Bros. - (1888) 13 AC 595 (HL), p. 603. See further, Puran Singh v. State of M.P. AIR 1965 SC 1583 p. 1584, (para 5); Municipal Corporation of Delhi v. Tek Chand Bhatia, supra. But if the literal reading of the words is less favourable to the subject provided that the intention of the Legislature is otherwise quite clear. [A.G. v. Beauchamp (1920) 1 KB 650; R. v. Oakes - (1959) 2 All ER 92. In Section 2(l)(d)(i) of the Bombay Lotteries and Prize Competition Control and Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 'and' as 'and' the result produced was unintelligible and absurd and against the clear intention of the Legislature. (Extract taken from Principles of Statutory Interpretation by Justice G.P. Singh page 252). Hon'ble Supreme Court in the case of Ishwar Singh Bindra and Ors. v. State of U.P. reported in AIR 1968 SC 1450 at page 1454 in para 11 had held as under :- Now if the expression substances is to be taken to mean something other than medicine as has been held in our previous decision it becomes difficult to understand how the word and as used in the definition of drug in Section 3(b)(i) between medicines and substances could have been intended to have been used conjunctively. It would be much more appropriate in the context to read it disconjunctively. In Stroud's Judicial Dictionary, 3rd Ed. it is stated at page 135 that and has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis of or. Sometimes, however, even in such a connection, it is, by force of a context, read as or . Similarly in Maxwell on Interpretation of Statutes, 11th Ed., it has been ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) ELT J 664 had held that it is well settled that the provisions of a statute or legislation should be construed in the context and the interpretation should not be confined only to its grammatical meaning. If there is any ambiguity in the expression used in the statute, it should be resolved in favour of the assessee or the tax-payer. It is not the technical meaning that should be adhered to in interpreting the expression in a statute but preference should be given to the expression as understood in the world of commerce. It was further held by the Hon'ble High Court as under:- In this connection reference was made to the significantly different languages used in the earlier notification dated 24th March, 1972 and 24th July, 1972 referred to hereinbefore, and also to the subsequent notification dated the 16th March, 1976 which according to counsel for the petitioners was redundant if the non-cellulosic fibre content was included in the acrylic fibre. Counsel naturally stressed that in constructing a provision of this nature the expression used in the context or the statute must be looked into and mere grammatical meaning or dictionary meaning of one particular express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hand, relies on a certificate of well-known firm of Consulting Engineers M.N. Dastur Co. Credibility of this certificate is sought to be struck at by the department on that no sample was sent to M.N. Dastur Co. This, in our view, is not a good-ground when the description of the product, namely, 'unpickled, with mill edges, fish tail and unskin passed' is not challenged and it is on the basis of that description that a certificate has been given to the effect that the product is semi-finished. The order of the Tribunal in the case of Collector of Customs, Madras v. Delhi Tubes Pvt. Ltd. reported in 1990 (49) ELT 243 was affirmed by the Hon'ble Supreme Court in Civil Appeal No. 4887/90, Collector of Customs v. Delhi Tubes Pvt. Ltd. and the appeal filed by the department was dismissed by the Hon'ble Supreme Court. The order of the Supreme Court in Civil Appeal No. 4887/90, Collector of Customs, Madras v. Delhi Tubes is reproduced below :- The Civil Appeal is dismissed. Hon'ble Supreme Court in the case of Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan and Ors. reported in AIR 1963 SC 1638 had held that where two constructions possible - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly is unexceptionable. If the temple is a public temple, under Hindu Law the idol of Shrinathji is a juridical person and so, the ownership of the temple and all its endowments including offerings made before the idol constitute the property of the idol. Having thus stated what is the true legal position about the ownership of the temple and the endowments, Section 3 proceeds to add that the Board constituted under this Act shall be entitled to the possession of the said property. If the legislature intended to provide for the better administration of the temple properties, it was absolutely essential to constitute a proper Board to look after the said administration, and so, all that Section 3 does is to enable the Board to take care of the temple properties and in that sense, it provides that the Board shall be entitled to claim possession of the said properties. In the context, this provision does not mean that the Board would be entitled to dispossess persons who are in possession of the said properties : it only means that the Board will be entitled to protect its possession by taking such steps as in law may be open to it and necessary in that behalf. Section 4 is a mere co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 323 at page 339 in which it was held as under :- Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction. The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used. It is necessary to remember that language is at best an imperfect instrument for the expression of human intention. It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of the dictionary but remember that statutes always have some purpose or object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning. In the matter before us, the Government amended the notification vide Notification No. 65/89-Customs and Serial No. 17 of Notification No. 125/86-Customs, dated 17th February, 1986 has been amended as under :- 17. Form, Fill and Seal machine for flexible packaging materials with either vacuumisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional rate of duty when FFS machine is imported either with vacuumising accessory or inert gas flushing accessory or with both the accessories. 10. If we look at the problem in a slightly different manner accepting for a moment the Department's contention that both the accessories must be imported with FFS machine in order to extend the benefit of concessional rate of duty, we would be faced with the situation where a user of this machine must be packing meat products as well as vegetable products like potato chips. In other words, the concession would not be available to a person, who is packaging either meat products only or vegetable products only. We fail to understand any rationale behind such an exemption if the Department's point of view is accepted that the concession would be available to a person who manufactures both meat products and vegetable but would not be available to a person who manufactures either of those products. It appears to be more rational that the concession is given to both types of manufacturers as appears to be clear from the ITC policy, where the benefit from import trade control regulations has been given to FFS machine with either vacuum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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