9911796707
TMI Blog1990 (10) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner-Company is a Joint Stock Company incorporated under the Companies Act, having its registered office at 26/11, Sankey Road, Bangalore. Petitioner-2 is the Secretary and Shareholder of petitioner-Company. 3. The petitioner-Company manufactures among other things phthalic anhydride (finished product for short). It requires raw material called "orthorxylene" to manufacture finished product. The raw material is manufactured in India by Indian Petrochemicals Corporation Limited, Baroda (I.P.C.L. for short). The manufacturers of the finished product including the petitioner-Company are five in number in the country. The production of raw material falls far short of the requirement of the manufacturers. The deficit is imported from outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having directed the collection of additional duty under the provisions of the Act of 1975 that is impugned in this writ petition. 6. We have heard the learned Counsel for the petitioners and learned Central Government Advocate for the respondents. 7. Section 3(1) of the Act of 1975, the material provision as extracted below reads as follows: "3. (1) Any article which is imported into India shall, in addition, be liable to a duty (hereinafter in this section referred to as the additional duty) egual to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xempted from the payment of excise duty under the provisions of the Central Excises and Salt Act by virtue of a notification, no additional duty can be levied on the raw material imported by them under sub-section (1) of Section 3 of the Act of 1975. Reliance was also placed on the licence granted to the petitioner-Company in form No. L. 6 produced as Annexure-B to the writ petition. The learned Counsel for the petitioner in support of the contention referred us to Annexure-B in which it is made out that the price paid by the petitioner-Company on the raw material "orthoxylene" was not included in the price fixed for levy of excise duty, that is the petitioner-Company is authorised to obtain 'Orthoxylene' without payment of excise duty ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 38/73 as amended by Notification No. 174/73. The Collector of Customs had held in the said case that the goods imported were liable to additional duty under the provisions of Section 2A(1) of the Indian Tariff Act, 1934 holding that the notification was a conditional notification not exempting acrylic sheets in all circumstances but only in certain circumstances specified in the Notification and that conditional exemption cannot be extended for purposes of countervailing duty to imported materials as per the statutory provisions of the Indian Tariff Act. The learned Single Judge of the High Court of Madras held that in the absence of proper examination or test or denial of the assertions in the review petition, and the affidavit fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge who rendered decision in Writ Petitions Nos. 2399 of 1984 and 1664 of 1985 distinguished both the decisions on facts and declined to hold that in the case of orthoxylene" imported, the exemption of duty available to the I.P.C.L. would ipso facto entitle the importer of the same substance to claim exemption under Section 3(1) of the Act of 1975. 11. But all this becomes academic in view of the decision of the Supreme Court in the case of Khandelwal Metal and Engineering Works and Another v. Union of India and Others - A.I.R. 1985 (S.C.) 1211 = 1985 (20) E.L.T. 222 (S.C.) wherein Section 3(1) of the Act of 1975 fell for direct consideration and its Scope and ambit were examined by the Supreme Court. Y.V. Chandrachud, the learned Chief J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs." 12. From the above it is obvious that even in the case where the goods like the imported goods are not manufactured in the country and if manufactured in the country no duty as such is paid, nevertheless, such imported goods would be exigible to the additional duty under Section 3(1) of the Act of 1975. We may, further, add that the exemption given to I.P.C.L. in exercise of the powers conferred on the Central Government, under the Central Excise Rules read with Central Excise Act, is an exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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