9911796707
TMI Blog1987 (1) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... pex (P) Ltd. v. The Collector of Customs, Madras, reported in 1985 (21) E.L.T 84 (Mad.) = 1985 E.C.R. 1111 (Madras), and that respondents had no right to retain the aforementioned amount. The application having been rejected by the Assistant Collector of Customs, Petitioner went in appeal to the Collector of Customs (Appeals). This respondent felt that the rejection of the applications by the Assistant Collector under Section 27 of the Customs Act, 1962, hereinafter referred to as "the Act", was perfectly correct. Under this section, a claim for refund had to be made within six months of the payment of the duty. That could not be said of the applications moved by the petitioner. For that reason, the appeal was also dismissed. The dismissal of the appeal led petition to this Court, the petition having been lodged in the last week of August, 1986. 3. Shortly stated, the case of the petitioner is that the imported article being a film, was entitled to exemption from Additional Duty vide Notification No. 228-Cus., dated August 2, 1976, as amended by Notification No. 443-Cus., dated November 29, 1976 - hereinafter referred to as "the Exemption Notification/Ex. 'A'. The Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the applicability of Section 27 of the Act, the petition itself showed that the petitioner was doubtful about the lawfulness of the demand for Additional Duty at the date he was required to pay the same. Therefore, it could not be said that the mistake of law was discovered just some time prior to the institution of the petition. Apart from this aspect, which justified the orders passed by the Assistant Collector and the Collector, the petitioner was guilty of laches. If a direction to refund was made, petitioner would be unjustly enriched. This is because the Additional Duty which had been paid must have been passed on to the Customers. In law, a double advantage could not be conferred upon the petitioner by giving a direction for refund of the duty. There was, of course, no question of petitioner being entitled to the interest claimed. 5. Having regard to the aforesaid submissions, the points that arise for determination, are :- (1) Whether the article imported was within the exemption or fell within the tabular exclusion "foil" vide Ex. 'A'? (2) Whether the petition occasions consideration of factual aspects and is recourse to Article 226 of the Constitution of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975." This provision, namely Section 3 of the Customs Tariff Act - hereinafter referred to as "the C.T.A." - deals with the levy of Additional Duty equal to excise duty. To the extent relevant, Section 3 of the C.T.A. reads thus :- "Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this Section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India....." The Explanation goes on to specify what the expression "articles made of plastics" shall mean. It says that the expression shall have the same meaning as in sub-Item (2) of Item No. 15A of the First Schedule to the Central Excises and Salt Act (CESTA), 1944. The Table gives the Items excluded from the exemption and one such Item is "foils". A reasonable reading of Ex. 'A' would be that Additional Duty leviable on imported articles would be the same as is excise duty leviable upon like articles if manufactured or produced in India under CESTA. The exemption would cover all articles made of plastics, except those specified as excluded in the Table. The expression "all articles of elastics" shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule, a film and foil could not be said to be synonymous. Even in the C.T.A. Schedule, "films" and "foils" are not treated as synonyms but separately specified. This would show the legislative intent to treat the two entries as distinct and different. It would, therefore, mean that "films" mentioned in CESTA Item No. 15A(2) would be within the sweep of the words "all articles made of plastics". Though "foil" is mentioned in the C.T.A. Schedule, it is not so specified in the CESTA Schedule, but the C.T.A. Schedule refers to "films" and "foils" both. The conclusion is that the two words mean and imply different things. According to Ex. 'A', all plastics, except those mentioned in the exclusionary Table, are entitled to exemption from Additional Duty. Therefore, the "film" would be within the exemption, rather than the exclusion. 8. Mr. Dhanuka canvasses the proposition that the question as to whether the imported article is a "film" or a "foil", is of a technical nature, and, that the determination thereof is within the province of the statutory authorities. The learned Counsel is right when he says that Courts, generally speaking, are not equipped to deal with classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents on this aspect of the matter. In their affidavit-in-reply, the relevant excerpts read thus :- "If the thickness of the film is above 0.025 mm., the Item in question would not amount to 'Foil'. However, the thickness of the film in the instant case is 25 micron which is equal to 0.025 mm and therefore the same comes under the term 'Foil'. Since the foil which is nothing but very thin film of a thickness not exceeding 0.025 mm the same is expressly excluded from the exemption under the said Notification. As the Petitioners' goods fall within the expression 'Foil' in all respects, it is outside the purview of the said Notification. ... ... ... In effect film and foil upto a thickness of 0.025 mm is synonymous. Technically and scientifically the term 'foil' is very thin film having a thickness upto 0.025 mm. The goods in the present petition being metallised polyester film of a thickness of 25 micron (0.025 mm) therefore fall within the term 'foil'. ... ... ... The expression 'Foil' scientifically and technically means very thin material or sheeting or film having a thickness upto 0.025 mm." Reliance is placed upon an opinion given by the Chief Chemist of the Customs. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeting having nominal thickness not greater than 0.25 mm. " Mr. Dhanuka argues that effective as the ISI fiat may be for quality control, it is of no assistance to resolve a dispute in regard to a classification dispute governable by tariff schedules. In support of this contention, Counsel relies upon Indian Aluminium Cables Ltd. v. Union of India and Others, 1985(21) E.L.T. 3 (S.C.). The passage reads thus :- "The specifications issued by the Indian Standards Institutions are for ensuring quality control and have nothing to do with the class to which the goods belong in a tariff schedule. " The opinion in which the above lines occur, arose from a case where the point to be decided was whether Properzi Rods were a specie of wire rods classifiable under a particular Entry. To establish a contention that a Properzi Rod was something other than a wire rod, reliance was placed upon separate specifications made by the ISI as between the two rods. It was in that context that the Court made the observation extracted above. But here, the Glossary relied upon by petitioner cannot be so discarded. The purpose of the Glossary has been stated thus in the Foreword :- " This standard ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er film which is metallised. In the Brochure of Sanwa, metallised polyester film is shown as being of 12 microns or 25 microns. This would not mean that there cannot be films of lesser microns. As pointed out by Dr. Kantawala, the Import and Export Policy, 1984-85 lists at serial No. 116 in Appendix 13, page 206, the following:- " Polyester film plain/metallised except metallised film below 6 microns used in the electronics industry. " Petitioner also refers to the CESTA classification made by the only manufacturer of polyester metallised films in India. The relevant documents will be found at Exs. 1 and 2, produced along with the affidavit-in-rejoinder made by the petitioner. In these documents, the thickness of the article is shown as 24 microns. Mr. Dhanuka contends that this does not furnish any indication, for his submission is that a "film" can include a "foil". As learned Counsel puts it, the expression "film" is generic, while a "foil" is a specie thereof. If this interpretation is accepted, very few articles made of plastic would escape the tabular exclusions, for every article could somehow be fitted into the words "tubes, rods, sheets, foils, sticks, etc. etc.". Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier, the exemption Notification has to be construed with reference to CESTA Item No. 15A(2). Thus, a "film" would appear to be specifically exempted from Additional Duty. The precedent is another reason fortifying the conclusion that petitioner has justified the claim to concession under the exemption Notification. 14. On the issue of limitation, Mr. Dhanuka argued that the petition itself makes a reference to petitioner, at the very date of payment of duty, being of the view that Additional Duty was not leviable and that the same had been wrongly recovered from it. Now, in a general sense, every payer of Government imposts, whether legal or otherwise, does feel that he should not have been required to pay the same. This natural distrust of the taxman, not to say the tax laws, and the general aversion to pay taxes, cannot be looked upon as excluding the discovery of mistake of law relied upon by petitioner. It is only when law is expounded that those labouring under a mistake in relation thereto, realise their mistakes. A general feeling that the recovery has been wrongly, if not illegally, made from him, does not amount to a mistake or misconception of law. The starting point o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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