9911796707
TMI Blog1980 (7) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of Section 2A of the Indian Tariff Act, 1934. The petitioner further seeks a writ of mandamus directing the respondents to refund a sum of Rs. 58,233.50 paid under protest as countervailing duty. 2. The petitioner is a Company carrying on business, inter alia, as manufacturers of paints caustic soda, chlorine, plastics, chemicals including rubber chemicals at its factory at Rishra in the State of West Bengal. For the manufacture of the said rubber chemicals the petitioner, inter alia, uses as intermediate raw material known as Beta Naphthol. Beta Naphthol is a coal tar derivative. It is not manufactured in India in sufficient quantity and the same is required to be imported into India from abroad. From April, 1971, the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff amounting to Rs. 58,233.50. The decisions of the Customs Authorities were taken on or about March 7, 1973. The petitioner paid the countervailing duty under protest. The petitioner then filed the present writ petition on May 24, 1973. Rule Nisi was issued. As an interim relief, the petitioner was granted stay of recovery of the countervailing duty on Beta Naphthol provided the petitioner furnished bank guarantee to the satisfaction of the Assessing Office concerned. The subsequent consignments of Beta Naphthol have been cleared by the petitioner on furnishing bank guarantees for the amount of the countervailing duty on Beta Naphthol. 3. At the relevant time and before, an item in the Schedule to the Indian Tariff Act, 1934, bearing No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en mainly used as an intermediate for the manufacture of B.O.N. Acid and some are dyes and pigment colours; that in addition, Beta Naphthol served as a starting material; for various other intermediates such as Tobias Acid, Phenyl-J-Acid, Rheduline Acid, J-Acid, Urea Crosein Acid, Gama Acid and G-Salt, when the schemes for manufacture of these intermediates (which are now under various stages of implementation) materials and that in view of that, Beta Naphthol has become a misfit under the category of `others'. The stand of the petitioner in the writ petition is also that the said item No. 14D only applies either to a synthetic organic dye-stuff or a synthetic organic derivative used in a dyeing process and that Beta Naphthol is neither syn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot permissible for the purpose of classification to take into account isolated or specialised uses and the goods are required to be classified according to their general or substantial use. The petitioner has placed on record trade notice No. 61 relating to the classification of Aniline Oil for the purpose of CE tariff. A decision is taken that Aniline Oil which is being used substantially by industries for purposes other than dyeing in textile industry should be treated as a `chemical' falling outside the purview of item 14D of the Central Excise Tariff. The countervailing duty on Aniline Oil is not being levied and is admitted by the respondents in the counter-affidavit. They have also placed on record a letter from Central Board of Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Secretary, Ministry of Finance, it is stated that Beta Naphthol is used and is also capable of being used as dyeing process "but at the present moment it is more predominantly used as dye intermediate of coaltar". This admission is significant and binding on the respondents. The contrary view is clearly vitiated. 9. The question whether Beta Naphthol should be assessable to duty (countervailing) was examined by the 5th Conference of the Collectors of Central Excise held at Bombay on 13th and 14th of March, 1978. 5th Conference referred to above after examining the opinions tendered by various Departments and Experts opined that Beta Naphthol is not in use in dyeing processes and that as of that date the appropriate classification f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the petitioner in so far as the levy of countervailing duty for Beta Naphthol imported prior to 1978 was concerned. 10. An adverse inference has to be drawn against the respondent for not allowing the inspection of the proceedings of the 5th Conference of Collectors of Central Excise and also-not producing the same for the perusal of. the Court. The records, if produced, would have shown the justification or otherwise of the levy of the countervailing duty under the said item 14D for the period between May 24, 1972 and July 22, 1978. 11. An inference has to be drawn against the respondents that the records, if produced, would have gone against the case set up by the respondents in the counter-affidavit. 12. For the above reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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