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TMI Blog1994 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... imports made by the concerned importers prior to 2-9-1978 when the earlier Notification dated 2-8-1976 was holding the field. The latter Notification cannot be said to be merely clarificatory Notification nor can it have any retros-pective effect. It is a fresh Notification laying down fresh condition deleting the earlier condition No. 2 about the colour specification. Hence this submission is of no avail to the learned counsel for the appellants. Against assessee. - 978, 979 and 1281-82 of 1985 - - - Dated:- 6-12-1994 - R.M. Sahai and S.B. Majmudar, JJ. [Judgment per : S.B. Majmudar, J.]. - These appeals arise out of a common judgment rendered by the Customs, Excise Gold (Control) Appellate Tribunal, New Delhi, by which it disposed of ten appeals in all. Civil Appeal Nos. 4013-13A of 1985 challenge that part of the order of the Tribunal by which the appeals of the common appellant, namely, M/s. Bombay Oil Industries Pvt. Ltd. were dismissed by the Tribunal; while the remaining four appellants seek to challenge the other part of the Tribunal's order by which four appeals moved by the Collector of Customs, Bombay, against the concerned present appellants came to be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itre of fatty acids 40 to 49" The said Notification was amended later on by a Notification dated 2-9-1978 whereby specification No. 2 was deleted from the earlier Notification dated 2-8-1976 being Notification No. 141-Cus./76. The said latter Notification dated 2nd September, 1978 being Notification No. 168/F. No. 370/24/78/Cus. I provided that in exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government being satisfied that it is necessary in the public interest so to do hereby makes the following amendment in the Notification of the Government of India in the Department of Revenue and Banking No. 141-Customs dated the 2nd August, 1976, namely, "In the Specifications mentioned under the said Notification, item (ii) and the entries relating thereto shall be omitted." 3.It, therefore, became clear that the importers of tallow after coming into operation of the latter Notification dated 2nd September, 1978 had not to satisfy the Customs Authorities that their imported tallow met the requirement of erstwhile Item No. 2 in the earlier Notification of 2-8-1976. We have seen that the second condition of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms House. The Appellate Collector noticed that the specifications given by Customs were word for word and figure for figure in IS 887 for Type No. 1 and that referred to mutton tallow and that the method prescribed for mutton tallow as per IS 548 could not have been applied for testing colour of imported tallow of these remaining four appellants and that the correct method for testing samples should have been the method recommended by American Oils Chemists' Society wherein samples should have been first bleached and then got tested. In view of the Appellate Collector as the goods imported by these four appellants were not Indian tallow for which the IS 887 and IS 548 were designed but foreign tallow and most probably beef tallow, it was reasonable to say that the standard of the tallow should be gauged in accordance with the grades or standards prescribed by the American Fats and Oil Association and if that was done the colour specification as found in condition No. 2 of the Notification was likely to be satisfied and for that purpose the samples were required to be re-tested by following the method recommended by American Oils Chemists' Society and accordingly the remaining f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by American method and that the Indian Standard method as adopted by the Customs House for testing these samples cannot be found fault with, consequently, the appeals filed by M/s. Bombay Oil Industries Pvt. Ltd., were dismissed and appeals filed by the Collector of Customs against the remaining four appellants were allowed. Being aggrieved by the aforesaid common order of the Tribunal in the respective appeals, the appellants have preferred appeals under Section 131(3) of the Customs Act, 1962. 5.These appeals were set down for final hearing before us. We have heard learned counsel for the contesting parties in support of their respective cases. 6.Learned counsel for the appellant, M/s. Bombay Oil Industries Pvt. Ltd., submitted that the Tribunal had committed a patent error in taking the view that the imported mutton tallow of the appellant did not meet the colour specification of the exemption Notification, that the Customs House had wrongly followed the IS 548 for testing the appellant's samples and it should have followed the official method Cc 8d-55. In any case the matters were required to be remanded as the appellant had been denied the principle of natural justice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions mentioned therein about the specification of imported tallow and if the imported tallow does not meet the specification required it cannot earn the exemption. It is trite to say that in order to earn the exemption, the person claiming the exemption must satisfy that his imported item has fulfilled all the conditions of the exemption Notification as such exemptions are granted in public interest. In connection with such exemption Notification issued under Section 25 of the Customs Act, a Bench of this Court in case Union of India Ors. v. M/s. Jalyan Udyog Anr. (A.I.R. 1994 SC 88), speaking through B.P. Jeevan Reddy, J., has made the following observations :- "An exemption granted may be an absolute and/or subject to such conditions, as may be specified in the notification and further that the conditions specified may relate to a stage before the clearance of goods or to a stage subsequent to the clearance of goods. Section 25(1) is a part of the enactment and must be construed harmoniously with the other provisions of the Act. The power of exemption is variously described as conditional legislation and also as a species of delegated legislation. Whether it is one or the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms House were not correct it was open to them to get the samples cross tested through their experts and to lay evidence in that connection before the authorities as burden was entirely on them to show that they had satisfied all the conditions of Notification with a view to earning the exemption to the extent of 30 per cent of import duty on their imported tallow. They did nothing of the kind. The Customs House followed the method of Indian Standards Institution for testing these samples. Our attention was invited to booklet "Indian Standard, Methods of Sampling and Test for Oils and Fats" as well as booklet of "Indian Standard, Specification for Animal Tallow" issued by the Indian Standards Institution. So far as animal tallow is concerned, the booklet dealing with test IS 887-1977 in paragraph 8.1 lays down that the test shall be carried out according to IS 548 Part I 1964. IS 548 Part I 1964 deals with method of sampling and test for oils and fats. Thus, there appears to be a common test prescribed by the Indian Standards Institution being IS 548 Part I for all types of animal tallows. That was the test adopted by Custom House and it was found that none of the samples of import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test for checking their colour as laid down by the exemption Notification has necessarily to be as per the Indian standard method and test laid down by the Indian Standards Institution. In this connection, we may refer to the decision in the case Union of India v. Delhi Cloth General Mills, [1977 (1) E.L.T. (J 199) (S.C.) = (1963 Suppl.) (1) SCR 586)] which has taken the view that if method of testing any item of central excise tariff is not mentioned, then Indian Standards Institution's method should be applied. Learned counsel for the appellants submitted that strictly speaking this judgment may not apply to the facts of the present case as we are not concerned with any central excise tariff. Be that as it may, the fact remains that the imported goods on which the appellants claim exemption from customs duty have to be ultimately disposed of in India and when the Indian Government grants exemption on condition, the method to test whether the exemption is earned or not by these imported goods would obviously be the Indian method. Learned counsel for the respondents submitted that if a converse case is taken into consideration and if Indian Goods are exported to the foreign co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id method. We, therefore, concur with the view of the Tribunal that there was no occasion to test the appellant's samples of tallow after bleaching as that was not the method of IS 548 Part I which was holding the field and as such pre-bleaching and refining could not be done pursuant to the American method which was not applicable to the facts of the present case and even by taking one inch cell testing on lovibond IS 548 method would have resulted in the samples showing colour deepening to the extent of 34 to 36 on the basis of Y + 5R which would not satisfy condition No. 2. The appellants cannot have any real grievances in this connection. 10.Before parting we may note one submission of the learned counsel. They submitted that laying down of condition No. 2 in Notification dated 2-8-1976 was a clear error on the part of the Central Government which was corrected by them by the latter Notification dated 2-9-1978 and, therefore, the latter Notification be treated as clarificatory Notification read with above Notification of 2-8-1976. It is not possible to agree as the disputed imports with which we are concerned are prior to 2-9-1978. They are therefore, covered by the earlier N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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