9911796707
TMI Blog1985 (4) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... rehoused u/s. 49 C.A. 1962. No clearance to be allowed. Adjudication proceeding will follow." At the time, the petitioner was verbally informed that the said white cement could not be released as the same was a canalised item under Item 8, Part B of Appendix 5 of the Export Import Policy for the year 1984-85. Thereafter the adjudication proceeding was started and by the show cause notice dated January 28, 1985, the Assistant Collector of Customs directed the petitioner to show cause why the said imported goods should not be confiscated under Section 111 of the Customs Act, 1962 and why penalty should not be imposed upon the petitioner under Section 112 of the Customs Act, 1962. The said show cause notice was issued on the basis of a chemical test of the sample wherein it was found that the white powder have the characteristic of ordinary partland cement. At that stage, the petitioner moved this Court a writ application with notice to the respondents and after hearing the parties, by the order, dated January 25, 1985, I directed the writ application to appear as an application on February 6, 1985 and in the meantime the respondents were given liberty to initiate and/or complete an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land Cement is generally meant for non-structural use. White Portland Cement is made from raw materials containing very little iron oxide and manganese oxide. Limited quantities of certain chemicals, which will improve whiteness of cement without affecting the physical properties, may be added during manufacture. .......... Portland cement except that maximum iron oxide content is 1.0 per cent, and requirement for loss on ignition has been deleted. Further the strength requirements of white Portland Cement are specified as not less than ninety per cent of these or ordinary Portland Cement." The said booklet contains various information regarding the terminology, manufacturing process, chemical requirements, physical requirements, etc., of white Portland cement. Mr. Gupta also relied on the booklet issued by the Indian Standard Institution under the name and style "Indian Standard Specification for Ordinary and Low Heat Portland Cement" which also provides the terminology, manufacturing process, chemical requirements, physical requirements etc. of ordinary portland cement. From the Booklets it is also made abundantly clear that the chemical requirements of white portland cement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the two types of commodities were binding upon the Collector of Customs. Further the Collector of Customs at its sweet will, cannot ignore the definition of cement given in the Imported Cement (Control) Order, 1978 which made it abundantly clear that the Central Government treated for all practical purposes ordinary portland cement and white cement as two different commercial commodities even under the law. According to Mr. Gupta, the Collector of Customs had acted arbitrarily, unjustly and whimsically in not relying upon the definition of cement in the said control order which was binding all force upon the Collector of Customs. The Collector of Customs had no authority and/or jurisdiction to override the statutory definition given to a particular commodity at his whims and caprice. 3. Mr. Gupta further contended that the Collector of Customs in the matter proceeded from the very beginning with a closed and biased mind and that as the matter was pending before this Court and the Collector was a party to it and the Collector of Customs from the beginning was contending that the white cement and the ordinary cement was same commodity. The Collector of Customs could not brin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Company's right to obtain relief under Article 226 of the Constitution against the notice under Section 34 of the Income Tax Act and directed the Income Tax Officer not to take any action on the basis of the impugned notice and a further order was passed quashing the assessment that was passed in the matter. In view of the above decision of the Supreme Court, the preliminary objection of Mr. Das cannot be upheld. Mr. Das next contended that the Collector of Customs had considered the matter and had treated white cement and ordinary cement as one commercial commodity and that under such circumstances, it was not open to this Court to interfere with the finding made by the Collector of Customs in this behalf and relied on the decision of the Supreme Court of India in Collector of Custom's, Madras v. K. Gangaseth, reported in AIR 1963 S.C. 1319. In the said case, it was held that it is primarily for the Import Control Authority to determine the head or entry in Tariff Schedule under which any particular commodity falls; but in doing so, these authorities adopted a construction which no reasonable person could adopt it, that is, if the construction is perverse then it is a case in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmercial parlance the two commodities are known as two different commercial commodities and that there is no scope for contending merely on the basis of some chemical test contrary to the chemical analysis published by the Indian Standard Institution to hold that white cement and ordinary cement are same commodity. The important test for determining whether white cement and ordinary cement is one commercial commodity or not. is that if a customer asks for cement from a cement dealer, whether, the cement dealer will give him or offer white cement, or not, certainly, a cement dealer will not offer white cement in such a case. The value of the two commodities are different, its chemical composition and uses arc quite different. In commercial world it is treated as two different commercial commodities. Even the Central Government treated the same as two different commodities. It is also well-established principle of law that in interpreting a particular commodity the dictionary meaning and technical meaning should not he adhered to and that in a Taxing Statute word of every day use-must be construed not in their scientific or technical sense, but as understood in commercial parlance. R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
