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TMI Blog2001 (6) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... y levied under Section 3 of the said Act, 1975 is not tenable in view of the fact that the used aluminum cans imported by the petitioner were nothing but aluminum scraps and can not come under purview of the Section 3 of the said Act, 1975. (2) The auxiliary duty levied by the Customs Authority in view of the change of the tariff is also not tenable and the duty should have been imposed on the date of booking of the said goods. 3. Mr. J.P. Khaitan, learned Advocate appearing for the petitioner, in his usual fairness has conceded that the second ground of challenge is no longer available to the petitioner by virtue of the settled principles of law as laid down by the Apex Court. That leaves us to decide only the first quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means the excise duty for the time being in 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 or articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty." 4. According to Mr. Khaitan the Explanation to sub-section (1) of section 3 postulates that additional duty would be levied on a finished product at the rate of the excise duty payable on its manufacture in India or in case the same is not manufactured, equivalent to the excise duty paid on a like article. Since used aluminum cans are nothing but scrap and are being imported to get t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een over-ruled by the Larger Bench and following the said larger bench I should allow the writ petition. Mr. N.C. Roy Chowdhury, Learned Advocate appearing for the revenue submitted that the analogy drawn by the petitioner with regard to the subject product is not correct in view of the specific provision made in item No. 27(a)(a) of the Tariff schedule. According to Mr. Roy Chowdhury the tariff schedule specifically provides for Aluminum Scraps. Hence, there cannot be any ambiguity for which the writ petitioner can claim exemption. According to Mr. Roy Chowdhury so long tariff item is not challenged the writ petitioner is not entitled to any relief herein. 8. In reply Mr. Khaitan submitted that simply because the aluminum scrap h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suffer additional duty equivalent to the excise duty payable for indigenous brass scrap avoid unhealthy competition. In the said judgment it was observed "The argument that the articles imported by the appellants have been reduced to scrap by reason of damage, wear and tear, is quite irrelevant. The true test is as to what is the description of the articles imported. If the articles are brass scrap, the limited inquiry which has to be made is whether brass scrap can come into being during the process of manufacture. If the answer is in the affirmative, the imported brass scrap will be chargeable to additional duty in accordance with Section 3(1) of the Tariff Act." The three bench decision in Hyderabad Industries observed that since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms chargeable under Section 12 of the Customs Act, 1962; (b) the duty in question, namely, under Section 3(1) of the Customs Tariff Act; (c) additional duty levied on raw-materials, components and ingredients under Section 3(3) of the Customs Tariff Act; and (d) duty chargeable under Section 9A of the Customs Tariff Act, 1975. Customs Act, 1962 and the Customs Tariff Act, 1975 are two separate independent statutes. Merely because the incidence of tax under Section 3 of the Customs Tariff Act, 1975 arises on the import of the articles into India it does not necessarily mean that the Customs Tariff Act cannot provide for the charging of a duty which is independent of the customs duty leviable under the Customs Act". "We hasten to add that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion did not arise in the said case. If such is the decision, in my view, the Khandelwal case is equally applicable in the present facts and circumstances of this case. Whether the aluminum scrap can or cannot be manufactured, cannot be said to have been decided by the Larger Bench. The Larger Bench dealt with the asbestos fibre which is extracted from the rock and admittedly involving no process of manufacture. Hence, in my view, applying the analogy of Khandelwal case even to the extent which has not been over-ruled by the Larger Bench in the instant case, the contention of writ petitioner in the present case is bound to be held as not tenable. 12. In the result this writ petition fails and is hereby dismissed. The rule nisi issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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