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TMI Blog1989 (9) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... il or less than 60%. If the notification had stopped here, the assessee would have been perfectly within its rights to claim that the auxiliary duty payable by it would only be 30% because the effective basic rate in its case is nil. The auxiliary duty paid by the assessee was perfectly in order and that its refund applications are not maintainable. We therefore, set aside the order of the Tribunal and the Collector (Appeals) and restore the order of the Asstt. Collector refusing refund to the assessee. The appeals are, therefore, allowed. - 2644-2648 of 1987 - - - Dated:- 26-9-1989 - S. Ranganathan and Kuldip Singh, JJ. [Judgment per : S. Ranganathan, J.]. - These are four appeals by the Collector of Customs in the case of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Forty [i] [3] percent of the value of the goods as determined in accordance with the provisions of Section 14 of the Customs Act, 1962 (52 of 1962). 2. Goods in respect of which the rate of duty of customs specified in the said First Schedule, read with any relevant notification of the Government of India for the time being in force is nil or less than 60 per cent ad valorem. Thirty [ii] [4] per cent of the value of goods as determined in accordance with the provisions of Section 14 of the Customs Act, 1962 (52 of 1962). Explanation : For the purpose of Sl. No. 1 and 2 in the above Table, the expression "the rate of duty of customs specified in the said First Schedule, read with any relevant notification of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed by the explanation in the notification. It is true that the main part of the notification provides for an auxiliary duty at 40% in cases where the effective rate of basic duty (i.e. the rates set out in the First Schedule read with any relevant notification) is 60% or above and an auxiliary duty at 30% in cases where such effective basic rate is nil or less than 60%. If the notification had stopped here, the assessee would have been perfectly within its rights to claim that the auxiliary duty payable by it would only be 30% because the effective basic rate in its case is nil. 7. However, the explanation has made an inroad into this simple rule. It has provided that where there are two (or more) effective basic rates applicable in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the terms of the explanation. As we see it, the terms of the explanation are perfectly clear. It is this : that if, in respect of any article, there are two or more effective basic duties in operation and the difference is referable to the country from which the article is imported, then the highest of the effective rates will govern the levy of auxiliary duty. It does not matter whether the difference in the rates is because the First Schedule applies in certain cases and a concession notification applies in other cases. Clearly, the use of the words "rate.....specified in the First Schedule, read with any relevant notification" does not necessarily require that there should be such a notification; they mean : "the rates specified in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. In the context of auxiliary duty, it is equitable that all importers should pay the additional duty at the same rate and that they should have no advantage or disadvantage inter se. A grant of concession in the matter of auxiliary duty as well would result in widening the gulf between one importer and another and also that between such an importer and the local trader. The provision, therefore, seems to have been deliberately enacted to achieve this result which is not really an anomaly as described by Shri Ramachandran. 10. Shri Ramachandran sought to make same point on the use of the word `article' in the notification. We do not, however, see any significance in the use of this word which has any relevance to the point at issue. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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