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TMI Blog1989 (9) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-9-1979. The duty was assessed by the concerned Customs Officer under the Item 73.15(2) of the Schedule to the Indian Customs Tariff Act, 1975. 3. Later on, legal opinion was obtained by the petitioners-appellants. They were advised that Stainless Steel Circles could not fall under Item 73.15(2) but only under 73.15(1) and hence the assessment of duty under 73.15(2) was erroneous. At the relevant time, the duty leviable under 73.15(2) was 220 per cent on the CIF value whereas the duty leviable under 73.15(1) was only 40%. Where, therefore, wrongly the duty had been assessed, according to the appellants at 220% while they were liable only at 40%, they claimed a refund of excise duty which amounted to Rs. 1,91,205.80 in this case. They, therefore, filed a claim for refund under Section 27 of the Customs Act within the stipulated time. Thereafter, the Assistant Collector of Customs considered the application and rejected the same holding that Item 73.15(1) covered Alloy Steel and High Carbon Steel in the forms mentioned under Heading No. 73.06/07 to 73.14 other than those of stainless steel specified under sub-heading (2) of 73.15 CTA. Accordingly he held that the classification und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Another v. Union of India and Others [1983 (12) E.L.T. 258] and further having held that Note I(n) to Heading No. 73.13 would not be of much help; ought to have held that sheets are different from circles. From this point of view, the judgment of the learned Judge requires to be set aside and the writ petition to be allowed. 8. In opposition to this, the learned Senior Central Government Standing Counsel Mr. P. Narasimhan appearing for the Central Government would say that an identical question came to be decided by the Delhi High Court in 1983 (12) E.L.T. 258 and he would commend acceptance of that ratio. Besides that, the said finding is rested on international basis. Where, therefore, it has been so understood, the principle laid down there will have to be applied to this case as well. No doubt, the Parliament brought about an amendment. That is to make it specific and not because of any distinction in the law which existed prior to the amendment. Therefore, much reliance cannot be placed on the later amendment. Equally, the other notifications under the Customs Act cannot be pressed into service because the purposes of those Notifications are entirely different. 9. In order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me would be 40%. 13. The only question, therefore, would be whether 'circles' would fall under Clause (2). In our considered view, it cannot. Our reasons are as under : 14. Commercially, as a matter of fact, it is not so denied before us by the respondents that stainless steel sheets are different from circles. The reason why we are saying is that as per Indian Standard Specification for stainless steel sheets, coils and circles for utensils and hospitalware, we find that sheets and coils are measured in width and length while circles are always measured only in diameter. It is also of interest to note as to what this Notification states : (Vide page 9 of typed set) - "..... Partial exemption to plates, sheets, circles, strips and foils produced from old or duty paid scraps. - In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts the following manufactures of copper namely, plates, sheets, circles, strips and foils in any form or size falling under sub-item (2) of Item No. 26-A of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) in the manufacture of which copper falling unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that circle is nothing else but 'sheets' which is specifically mentioned in 73.15(2) and, therefore, it would be covered by sub- heading (2). We agree with the interpretation given by the respondents. Reference in this connection be made to Clause (n) of Chapter 73 of the Schedule to the 1975 Act, which defines sheets, plates in Heading 73.13. The note further says that Heading No. 73.13 is to be taken to apply inter alia to sheets or plates which have been cut to non-rectangular shape perforated ..... (emphasis supplied). Now Heading 73.15 requires two things, namely - (a) that goods must be of alloy steel, , stainless; (b) they must be in the form mentioned in Headings 73.06/7 to 73.14. Admittedly the goods of the petitioner are of stainless steel. 73.13 deals with sheets and plates of iron and steel. But sheets in terms of clause (n) of Note 1 of Chapter 73 is to be taken to apply to sheets which have been cut to non-rectangular shape. The petitioner is importing stainless steel circle which really means sheet cut to non-rectangular shape. So there does not seem to be any justification to say as to why stainless steel circles would not be included in 73.15(2) read with 73.13, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal trade would suffer serious problems in being able to tax and identify various articles. As a matter of fact many a article bear lower rates of duty by virtue..... "of General Agreement on Tariff and Trade (GATT). In that context the fact that international customs opinion describe sheets and plates under 73.15 to include sheets cut to circular shape would be a very strong reason not to interfere with the finding of the authorities under the Customs Act which have taken the view that stainless steel sheets would include stainless steel circles also". 17. We do not think we should go that far in so far as commercially they are treated as different articles which alone is the prime test in such matters. That is sufficient for our purpose. We are not resting our judgment merely on this because there is something more substantial to follow. If according to the Department, sheets would take within it circles as well, we are totally unable to understand as to where was the necessity to pass a separate Amendment by reason of the Customs Tariff (Amendment) Bill, 1982 (Bill No. 50 of 1982) which came into force from 1st January, 1981 itself retrospectively. The amendment reads th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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