9911796707
TMI Blog1986 (2) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... to certain technical literature and specifications. In the Import Trade Policy for the year 1977-78 till 1980-82 the Govt. of India through the Ministry of Commerce included Hypalon under the description Scientific rubber relying upon the Import Trade Control Classification passed on Brussels Trade Nomenclature. Prior to 1979 for the purpose of importation of Hypalon one had to apply for an import licence from the Chief Controller of Imports and Exports as a result the Petitioner had applied and obtained licence from time to time from the competent authority and hypalon had been imported by virtue of such licence which was cleared by the Customs Authorities, under the description Synthetic rubber. The Petitioner further stated that the Customs Authorities at Madras by their order dated 26th November, 1976 had been pleased to hold Hypalon as synthetic rubber. Even the Appellate Collector of Customs, Calcutta by order dated November 6, 1980 in respect of a consignment of Hypalon imported by the Petitioner had been pleased to hold the same as synthetic rubber which of course is pending by way of review before the Govt. of India. In cases of customs duty on synthetic rubber there in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of 40 tons of Hypalon out of the 40 mt. tonnes 70.96240 mt. tonnes under a bill of lading dated 30th November, 1983 arrived at the Calcutta port by the vessel M.V. Okeanis and had been lodged in the bonded warehouse. The Petitioners in view of the urgency of the requirement of the materials prepared a bill of entry for clearance for home consumption describing the said material as synthetic rubber (synthetic resin) and paid duty at 100% Auxiliary at 25% for clearances of 4.014 mt. tonnes of goods and paid the duty under protest and cleared the goods. Similarly under the same circumstances, the Petitioners cleared 2.0412 mt. tonnes, 2.042 mt. tonnes and 4.082 mt. tonnes by payment of the duty demanded by the Customs Authorities but according to the Petitioner under protest. The petitioners paid duty on the basis of the rate applicable to synthetic resin instead of synthetic rubber. A further consignment of Hypalon arrived on 9th of August, 1981 at the port of Calcutta by the vessel E. Lee under the said contract dated 18th July, 1980 which goods had been stored in the bonded warehouse and had not been cleared. Another consignment of Hypalon arrived at the port of Calcutta on 28th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. There is no dispute that the import of Hypalon was permissible under open general licence in the import policy of 1981-82 and as such goods could be imported by the petitioner by virtue of the licence granted by the concerned authorities. The customs duty charged on synthetic rubber is assessable under the Customs Tariff Act provided the goods satisfied the conditions as laid down under Chapter 40 of the Customs Tariff Act, 1975. Hypalon does not answer or comply with note 4 of Chapter 40. The petitioner's contention that Hypalon is most akin to synthetic rubber has been denied and disputed by the customs authorities. On the contrary they contended that it is a saturated synthetic substance more akin to resin group. 9. In the case reported in 1983 E.L.T. 258 Super Traders and Anr. v. Union of India and Ors. a division Bench of the Delhi High Court held :- "It is equally well to remember that it is primarily for the Import Control Authorities to determine the head or entry in Tariff Schedule under which any particular commodity fell, but if in doing so, these authorities adopted a construction which no reasonable person could adopt, i.e. if the construction is preserve, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d taken a wrong view in construing the entry the High Court cannot interfere with the decision unless it is found to be perverse or of such nature which no reasonable person could arrive at. It is therefore not correct for Mr. Sen to urge that simply because an interpretation about an entry has to be given this makes the whole thing doubtful that it can only be resolved by decisions against the Revenue. In this connection we would like to note that sometimes the broad maxim that a penal provision should be strictly construed against the department and if any concession is to be made it must be made in favour of the citizen is put forth as it is an inevitable mandate that an effort be made at finding any technical flaw to help a person from avoiding this Court had occasion to express disapproval of such an approach in (C.W. 629/1980 decided on 27-11-1980) Hindusthan Aluminum Corporation Ltd. v. The Superintendent, Central Excise and Others 1981 E.L.T. J. 642, where one of us (Sachar, J.) speaking for the Bench observed :- "We cannot accept as sound law that a fiscal provision has to be construed against the department and in favour of citizens on any supposed reason of technicalit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1983 S.C. P 630 Titaghur Paper Mills Co. Ltd. and Anr. v. State of Orissa, it was held :- In the instant case against the order of assessment made by Sales Tax Officer under the Orissa Sales-tax Act the petitioners assessees, can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24. The Act provides for a complete machinery to challenge an order of assessment, and the impugned order of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of." 14. The petitioner cannot be permitted to continue two parallel proceedings for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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