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TMI Blog1976 (8) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Schedule to the Act, the charging Section 3(1), the power of exemption under Rule 8 of Chapter III of the Central Excise Rules, 1944, dealing with levy and refund of and exemption from duty. 2. The charging Section is section 3(1) which is in these terms : "There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India and a duty on salt manufactured in, or imported by land into, any part of India as, and at the rates, set forth in the First Schedule". 3. The First Schedule referred to in the above sub-section deals with various items and those items are described in column 2 and the rates of duty for such items are specified in column 3. We are only concerned in this petition with Item 16B, which we shall extract in full. "Item No. Description of Goods Rate of duty 16B Plywood, Blockboard, Laminboard, Batternboard, Hard or Soft Wall Boards or insulating Board and Veneered Panels : Whether or not containing any material other than wood; cellular wood panels; building boards of wood pulp or of vegetable fibre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same articles. In regard to articles which are clearly specified in the First Schedule, specific valuation will have to be fixed. That is how the provisions have been understood by the Central Government, is evident from the two notifications, one bearing No. 148/1973 produced as Ext. P12 along with the reply affidavit filed by the petitioners and the other No. 91 of the year 1975, Ext. P3, produced along with the petition. In order to make matters clear we will also refer to the relevant parts of the notifications. The table given in Ext. P12 runs thus : "Item No. Description of Goods Rate of duty 16B Plywood, Blockboard, Laminboard, Batternboard, Hard or Soft Wall Boards or insulating Board and Veneered Panels : Whether or not containing any material other than wood; cellular wood panels; building boards of wood pulp or of vegetable fibre, whether or not bonded with natural or artificial resins or with similar binders; and artificial or reconstituted wood being wood shavings, wood ships, saw dust, wood flour or other lingneous waste agglomerated with natural or artificial beings or other organic binding substances in sheets, block ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly affidavit filed by the petitioners and the other No. 91 of the year 1975, Ext. P3, produced along with the petition. In order to make matters clear we will also refer to the relevant parts of the notifications. The table given in Ext. P12 runs thus : Sl. No. Description Tariff value in rupees per square metre (1) (2) (3) 1. Commercial Plywood - (a) in area 5,625 square centimetres or less 3.50 (where the thickness is 4 millimetres) (b) in area exceeding 5,625 square centimetres 5.35 (where the thickness is 4 millimetres) 2. Plywood for tea chests 5.20 3. Non-decorative hardboards - (a) Plain surface standard hard Boards 3.80 (where the thickness is 3 millimetres) (b) Embossed hardboards 5.95 (where the thickness is 3 millimetres) (c) Oil tempered hardboards 6.70 (where the thickness is 3 millimetres) 4. Insulation boards made from Bagasse, straw, jute waste or jute stricks 10.55 (where the thickness is 12 millimetres) 5. Insulation boards made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There has been a notification issued under Rule 8(1) by the Central Government in regard to "plywood for tea chests". This notification is Ext. P1 and serial number 1 is described as "plywood tea chests" and the extent of exemption under column 3 of the notification is "duty in excess of 7 1/2 per cent ad valorem". There has been a subsequent Notification No. 189/72 dated 26th August, 1972 by which the description in serial number 1, we just now read, has been altered and for the words "plywood for tea chests", the words "plywood for tea chests when cut to size in panels or shooks and packed in sets" were substituted. We do not think Ext. P2 notification altered Ext. P1 notification as regards the item "plywood for tea chests" described therein. Ext. P2 notification is only a clarification. By Ext. P2 the words used in Item 16B(i) of the Schedule have been fully adopted in the notification of exemption. This not only clarifies Ext. P1, but also indicates clearly what was meant by "plywood for the chests" in serial number 1 of Ext. P1 notification. 7. Having looked at the provisions which are necessary for determining the duty on the articles which are manufactured or produced by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. 148/73 dated 21st July, 1973, in case the clearance are direct to tea factories otherwise the plywood for tea chest shall be classified under 16B(ii) and appropriate rate of duty thereof but tariff value fixed for tea chest shall be adopted for assessment purpose. 10 per cent of basic duty as per notification No. 55/ 74, dated 1st, March, 1974. Notification 16/68 as amended by notification No. 189/72, dated 26th August, 1972. 9. The other exhibits in the series have followed the same pattern. When we look at the entry under column 4 we find that the tariff value of Rs. 5.20 fixed for the goods described as "Plywood for tea chests" in Ext. P-12 notification under Section 3(2) was to apply "in case the clearance are direct to tea factories". In such cases the duty was to be 71/2{per cent in accordance apparently with the notification issued under Rule 8(1) by the Central Government, which is Ext. P1. The insistence that for the particular commodity of goods the rate of duty prescribed by the Schedule and exempted by Ext. P1 would apply only in case the clearance is direct to tea factories is an addition made by the 1st respondent apparently under instructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f value and rate of duty. To treat plywood for tea chests as coming under Item 16B(ii) by applying the "destination principle" itself is wrong and having brought it under Item 16B(ii) to apply "the tariff value for plywood for tea chests" would be to treat the particular goods as falling under both sub-clauses of Item 16B. What has been done is to classify the goods claimed by the petitioners to be "plywood for chests" merely on the "principle of destination" under "any other" Item 16B(ii) and then to take back to Item 16B(i) for the purpose of applying the higher tariff value. Thus the higher rate of duty under Item 16B(ii) as well as the higher tariff value under Item 16B(i) have been applied to the same goods. This we think is patently wrong and an illegal procedure. 10. Counsel on behalf of the Revenue contended at the initial stage that we should dismiss this writ petition on the ground that another remedy was available under Section 36 and on the ground that there has been delay in filing this petition and on the further ground that some memorandum has been filed before the Central Government which is under consideration of the Central Government, and on the final ground th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 17th of July, 1975. Those orders, it is admitted by counsel, were received by the petitioners before the end of July. So going by the rule of 90 days which we have been following as a convention in this court this petition should have been filed before the end of October, but they have been filed only on the 11th of November. We notice however that the orders Ext. P7 allowed 180 days for taking the revision before the Central Government. We must also mention that fresh modified lists were issued by the 1st respondent as evidenced by Ext. P9 series only in August 1975. Counsel submitted that the petitioners who belong to an association required time to consider the next steps to be taken, seek and get legal opinion and then get the petition prepared and all that took larger time than 90 days from the dates on which Ext. P7 orders were passed and that they have filed the petition within 90 days of the issuing of the fresh list Ext. P9. We are not prepared to say that in all the circumstances of the case the delay is such that we should decline to exercise jurisdiction under Article 226. The memorandum cannot stand in the way of exercise of jurisdiction by this Court. Nor are we c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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