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TMI Blog1990 (11) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1962 read with clause 19(4) of the Finance Bill, 1974 or whether at the rate of 5 per cent under clause 2 of the said notification. 2. The petitioner imported a consignment of Phosphoric Acid for the manufacture of fertiliser under bill of Entry No. 67 dated 10th May 1974 which is the subject-matter of Special Civil Application No. 94/77. They also imported three consignments of Phosphoric Acid for the manufacture of fertiliser under separate Bills of Entry between the period 26th March, 1975 and 11th August, 1975 which are the subject-matter of Special Civil Application No. 47/77. 3. At the relevant time the rates at which the customs duty was to be recovered were specified in the First and Second Schedules of the Indian Tariff Act, 1934. The Tariff Act, 1934 provided for levy of duty at standard rate, preferential rate and protective rate as specified in the First Schedule. In these two petitions we are concerned with Item No. 28(16) which prescribes the standard rate and preferential rate of duty for Phosphoric Acid. The relevant part of the said item is as under : "THE FIRST SCHEDULE IMPORT PART : Preferential rate of duty if the article is the produce or manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any relevant notification of the Government of India for the time being in force, is 60 per cent ad valorem or more but less than 100 per cent ad valorem. Fifteen per cent 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 less than 60 per cent ad valorem or nil Five per cent of the value of the goods as determined in accordance with the provisions of Section 14 of the Customs Act, 1962 (52 of 1962). 3. xx xx 4. xx xx Explanation : For the purposes of Serial Nos. 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 Government of India' in relation to any article liable to two or more different rates of duty, means that rate of duty which is the highest of those rates." It is the contention of the petitioner that 'Phosphoric Acid' imported by the petitioner for the manufacture of fertilizer is liable to auxiliary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Royal Calcutta Turf Club v. Kishan Chand A.I.R. 1943 Lahore 84 i.e. to constitute another Division Bench. 7. Thereafter this matter is placed before us for final disposal. 8. At the time of hearing of this matter, learned counsel appearing on behalf of the respondents has not pressed the following preliminary objections which were raised before the previous Division Bench: "(i) Both these petitions, though filed before the Constitution (Forty-Second Amendment) Act, 1976, abated, on the coming into force of the said Amending Act with effect from 1st February, 1977 by virtue of Sec. 58 thereof; (ii) Even if it is held that the two petitions did not abate, both the petitions are not maintainable and no relief whatsoever can be granted to the petitioners in these two petitions in view of the clear mandate of the newly added cl. (3) to Art. 226 of the Constitution, inasmuch as, provision for an efficacious remedy is made under the Customs Act; (iii) As the petitioners had withdrawn their earlier petition Spl. C.A.No. 1377/76 filed against the impugned order on 6th September, 1976 the present two petitions filed subsequently on the same cause of action challenging the very s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leviable thereon. Pursuant to the said power, for the Phosphoric Acid notification Annexure "A" dated 28th April, 1969 is issued whereby the Central Government has exempted Phosphoric Acid falling under Item 28(16) when imported for the manufacture of fertiliser so much of that portion of the duty of customs leviable thereon which is in excess of 30 per cent ad valorem. Therefore, for the 'Phosphoric Acid' (goods or article) the standard rate of duty is 60 per cent ad valorem, preferential rate of duty is 10 per cent ad valorem if it is imported from Burma ^ and 30 per cent ad valorem if it is imported for the manufacture of fertiliser from a country other than Burma. Therefore, it is apparent that for the Phosphoric Acid (i.e. the goods or article) three different rates of duty are fixed. Then for determining auxiliary duty, Explanation to the Table stated above would be required to be considered. The Explanation provides that for the purposes of Serial Nos. 1 and 2 in the above Table, the expression "rate of duty of Customs specified in the said First Schedule read with any relevant notification of the Government of India" in relation to any article liable to two or more differen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, it is difficult to accept the aforesaid contentions because as stated above 'Phosphoric Acid' is one article or the goods over which duty is to be recovered. It does not become a separate article or goods when it is imported for manufacture of fertiliser. It is the same article even if it is imported from Burma. Merely because exemption is granted in payment of whole or in part of duty of customs, it would not mean that the goods or article is different. Section 25 of the Customs Act empowers the Central Government in public interest to grant such exemption in payment of duty of customs leviable on goods of any specified description. Therefore, the goods remain the same and if it is imported for some specified purpose, it may be wholly or partly exempt from payment of duty of customs. The expression 'rate of duty of customs specified in the said First Schedule read with any relevant notification of the Government of India' would in the present case mean 60 per cent standard rate of duty of customs which is specified in Item 28(16) in the First Schedule and this is to be read with the relevant notification of the Government of India which is at Annexure "A" which exempts Phosphor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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