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TMI Blog1994 (10) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods of 1,750 M.T. of PVC Resins arrived on board s.s. Vishwadharma covered by bills of lading numbers 33 to 47 and 81 to 100 dated 20-10-1984 and 22-10-1984 respectively as ultra vires the Constitution of India and pass such other orders as may be deemed fit. In support of the aforesaid prayers, the petitioner has relied upon three Notifications dated 2-8-1976, 31-1-1979 and 11-5-1984 produced at pages 1 to 7 of the typed set of records. 3. Learned single Judge, following a decision of the Supreme Court in Khandelwal Metal Engg. Works v. Union of India [1985 (20) E.L.T. 222 (S.C.) = AIR 1985 SC 1211] has held that additional duty was not exempted under the aforesaid notifications and though the additional duty was also a customs duty, nevertheless, the aforesaid Notifications did not cover the same. Accordingly, learned single Judge has summed up his conclusions as follows :- "To sum up thus, I hold unhesitatingly that the exemption in the case of the petitioner will remain confined to the duty as calculated on the basis of the rate in the First Schedule of the Tariff Act and shall not touch or affect the additional duty leviable under Section 3(1) of the Tariff Act. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of payment of additional duty of customs, the Notifications are issued specifically mentioning the additional duty of customs, that as the Notifications in question do not refer either to Section 3 of the Customs Tariff Act or to the additional duty, they only refer to the duty of customs as specified in the First Schedule with respect to the goods referred to in the Notifications, whereas the additional duty though it is the duty of customs only but the basis for calculation and levy of it being different from the customs duty as mentioned in Annexure-I to the First Schedule and as there is no reference to Annexure-I to the First Schedule in the Notifications relied upon by the appellant, learned single Judge is justified in holding that the exemption granted under the Notifications is not extendable to the additional duty of customs. Learned counsel for the respondents has also placed before us the Notifications in which there is an exemption from payment of ...... duty having been specifically mentioned in those Notifications. 6. The relevant portions of the Notifications are as follows :- "Notification No. 341-Cus., dated 2-8-1976 as amended by Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation and copolymerisation products (for example, polyethylene, polytetrahalo-ethylene, polyisobutylene, polystyrene, polyvinyl chloride, polyvinyl acetate, polyvinyl derivatives, polyacrylic and polymethacrylic derivatives, cumarone-indeneresings) i) olyvinyl chloride (a) iquid (b) owder and grains (c) Oher forms 39.01/06 50 per cent of the standard rate of duty (ii) Polyvinyl acetate 39.01/06 -do- (iii) Polystyrene -do (a) Liquid (b) Powder and grains (c) other forms 39.01.06 Notification No. 36/83-Cus., dated 1-3-1983 as amended by Notification No. 219/83-Cus., dated 2-8-1983. Chapter 39 - Artificial Resins, Plastic Materials etc. 353 (b) the whole of the additional duty of customs leviable thereon under Section 3 of the second mentioned Act. (Notification No. 26-Cus., dated 31-1-1979) Exemption to polymerisation and copolymerisation products, etc. imported from Brazil or Spain or Turkey or Yugoslavia or the Republic of Korea or Tunisia or the Arab Republic of Egypt or Chile or Mexico or Urguguay or Peru or Paraguay or Bangladesh or Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that what is exempted is the duty of customs. The relevant words in the first Notification are as follows :- "..... from so much of that portion of the standard rate of duty of customs specified in the said First Schedule with respect to the aforesaid goods read with any other Notification (for the time being in force) issued with respect to such goods under sub-section (1) of section 25 of the Customs Act, 1962, but not including the notification of the Government of India in the Department of Revenue and Banking (Revenue Wing) .... as is specified in column (4) of the said Table." In column 4 of the Table relating to item 6, the exemption is granted to the extent of 50% of the standard rate of duty. The second Notification dated 1-3-1983 also is similarly worded. The item concerned is item 2, viz., Polyvinyl Chloride Resins. The rate of duty is mentioned 150 per cent ad valorem. The exemption is in excess of 150 per cent ad valorem. 6A. Section 2 of the Customs Tariff Act, 1975 provides the duties specified in the Schedule to be levied and the rates at which duties of customs shall be levied under the Customs Act, 1962 as specified in the First and Second Schedules. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by point No. 3 raised in that decision which was as follows :- "Is the levy and collection of additional duties of customs under Section 3 of the Customs Tariff Act, 1975 on the brass scrap imported by the Petitioner No. 1 valid?". Point No. 3 was held against the petitioner therein and it was held that the levy and collection of additional duty of customs under Section 3 of the Tariff Act on the petitioner was valid. On the first point, it was held that it was the Notification No. 156 dated 16-7-1977 which governed the case. Ultimately, the writ petition was dismissed. The respondents were given the liberty to take any appropriate step as advised to realise the amount of duty from the petitioner therein in terms of the bond and or bank guarantee and to encash the same, which were furnished to them and to proceed against the petitioner in any way they deemed proper and in accordance with law. It was this judgment which was confirmed by the Supreme Court in the aforementioned case. The Supreme Court summed up the conclusions thus :- "We may sum up our conclusions thus :- (i) The charging section under which duties of customs are leviable is Section 12 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Tariff Act, 1975, because the taxable event was the import of goods into India and not the manufacture. Accordingly, the Supreme Court dismissed the Special Leave Petition and confirmed the judgment of the High Court. Therefore, it is not possible to agree with the contention of the learned counsel for the appellant that Supreme Court in Khandelwal Metals' case [1985 (20) E.L.T. 222 (S.C.) = AIR 1985 S.C. 1211] has ruled that once there is a Notification exemption from the customs duty leviable as per the rates prescribed under the First Schedule, such exemption would also apply or extend to the additional duty of customs, which is levied under Section 3 of the Customs Tariff Act and Annexure-I to the First Schedule. 7. We also receive support to our view from a Full Bench decision of the Bombay High Court in Apar Private Ltd. v. Union of India [1985 (22) E.L.T. 644] in which one of the questions considered was whether the countervailing or additional duty payable under Section 2A of the Indian Tariff Act, 1934 or under Section 3 of the Customs Tariff Act, 1975, was customs duty referred to in the charging section, viz., Section 12 of the Customs Act, 1962 and if so it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he operation of the Notification dealing with the exemption has to be judged by the words employed in exemption notification, therefore the Court cannot aid the Competent Authority by adding to or by amending or by construction making up the deficiencies in the language by going into the object, which the Authority had in mind. It was also further held that the words used in the said Notification must be construed in their ordinary and natural meaning and as such, the exemption dependent on the duty of excise on the manufacture or production of goods in the said case, which was termed as the basic duty of excise or special duty of excise or additional duty or auxiliary duty, to the extent indicated would be the sum total of the duty of excise leviable under all statutory provisions, Therefore, the decision turned upon the words contained in the said Notification. Hence, we find it difficult to hold that the said decision against the appellant in any manner. 10. In Government of India v. Madras Aluminium Co. Ltd., Coimbatore [1981 (8) E.L.T. 892], a Division Bench of this Court held that : "The regulatory duty is in the form of surcharge on the excise duty and should be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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