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TMI Blog2005 (5) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent no. 2 levied SAD under Section 3A of the Tariff Act and assessed it at Rs. 1,70,40,861/-. The petitioner paid the same under protest. Thereafter it raised an issue before respondent no. 2 for refund of the amount, taking the plea that since its imports were exempt from payment of Customs Duty under the provisions of the Customs Act, 1962 (hereinafter referred to as the 'Act'), it was also not required to pay SAD. The contention has been rejected by the impugned order, wherein it is held that it was lawfully realised. Hence this writ petition. 3. In exercise of the powers conferred by sub-section (1) of Section 25 of the Act, the Central Government exempted all the goods except those enumerated in the notification from the basic Customs Duty in terms of Section 12 of the Act, provided the goods were wholly manufactured in Nepal, vide Gazette Notification No. 37 of 1996-Cus., dated 23-7-1996, as amended by Notifications No.99/96-Cus., dated 27-12-1996, and No. 5/97-Cus., dated 20-1-1999 (Annexure-1). The relevant extract from the notification is as follows : . . . . . . . . . . . . B. All manufactured goods other than the following : (i) Alcoholic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Nepal are not dutiable goods within the meaning of Section 2(14) of the Act. He also relied on the observations in the judgment reported in (1921) 1 KB 64 (Cape Brandy Syndicate v. IRC, and quoted with approval by our Supreme Court in its judgment reported in 2004 (172) E.L.T. 289 (S.C.) = (2004) 8 S.C.C. 173 (Commissioner of Central Excise, Pondicherry v. ACER India Ltd.). 5. Learned Additional Standing Counsel opposed this writ petition and submitted that the two statutes are distinct and independent of each other. He relied on the judgment of the Supreme Court reported in 1999 (108) E.L.T. 321 (S.C.) = 1999 (5) S.C.C. 15 (Hyderabad Industries Ltd. v. Union of India). He further submitted that the incidence of duty under Section 12 of the Act is fundamentally different and independent of the diverse incidence of duties under the Tariff Act. In his submission, separate duties are leviable under Sections 3, 3A, 8B, 9 and 9A of the Tariff Act, all of which can singly or in addition to the basic customs duty be levied independently or separately on any import of goods. He relies on the following reported judgments : (i) 1985 (22) E.L.T. 644 (Bom.) (F.B.) (Apar Private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 (52 of 1962), are specified in the First and Second Schedules." Schedule-I incorporates the duties on the imports, and Schedule-II on the exports. Section 3 of the Tariff Act provides levy of additional duty equal to excise duty. The relevant portion is set out hereinbelow for the facility of quick reference : "Section 3. Levy of additional duty equal to excise duty. - (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the Additional duty) equal 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 shall be so liable shall be calculated at that percentage of the value of the imported article. Provided that in case of any alcoholic liquor for human consumption imported into India, the Central Government may, by notification in the Official Gazette, specify the rate of additional duty having regard to the excise duty for the time being leviable on a like alcoholic liquor produced or manufactured in diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond schedules, being the lists of tariffs for imports and exports, are common to both the Acts. Till such time the Central Government specifies the rate of SAD, it shall be levied and collected at the rate of 8 per cent at the value of the imported article. The special duties in terms of Sections 8B, 9 and 9A of the Tariff Act can be levied only after the Central Government decides to levy the same by publication of the requisite notification in the official Gazette. It is another matter that the Central Government may, in exercise of its powers under Section 25 of the Act, exempt certain goods from the imposition of the duties of customs in terms of Section 12 of the Act or Sections 3 or 3A of the Tariff Act. It is equally another matter that, after having issued the requisite notification in the Official Gazette in terms of Sections 8B, 9 and 9A of the Tariff Act, imposing the levy, the same can be withdrawn. 10. We now proceed to consider the reported judgments cited by learned counsel for the parties. Learned counsel for the petitioner informed us of the rules of, construction with respect to taxing statutes. He relies on the judgment of Cape Brandy Syndicate v. IRC) (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he two Acts were independent of each other. The Supreme Court found it necessary to read and construe the Principal Act and the 1975 Act together as if the two were one and while doing so, to give effect to the provisions of the 1975 Act, which has manifested an intention to modify the Principal Act. It was further held that the State Legislature intended not to depart substantially from the Principal Act except with regard to matters in respect of which express provision had been made in the 1975 Act. Though the Act had the usual features of a statute, it could not be considered as an independent statute but must be read together with the Principal Act to be effective. It is thus manifest that the judgment in Ashok Service Centre (supra) stood on a fundamentally different footing where the later Act was in pith and substance construed not to be independent of the Principal Act but practically as an amending Act. The judgment is, therefore, inapplicable to the facts and circumstances of the present case. 12. Learned counsel for the petitioner has also relied on the judgment of the Supreme Court in Associated Cement Companies Ltd. (supra). That was a case under the Customs Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Videocon has to be allowed. 13. In view of the discussion hereinabove, it is manifest that, in so far as the incidence of duties are concerned, the two Acts are independent of each other, one duty can be levied without the other. The proposition submitted by the learned Counsel for the petitioner that nil duty is also duty obtains under the Excise Act and not under the Customs Act. Associated Cement Companies Ltd. (supra) does not support the petitioner's case. 14. Learned Additional Standing Counsel has rightly placed reliance on the judgment of the Supreme Court in Hyderabad Industries Ltd. (supra) which lays down to the effect that the various imposts under the Tariff Act are additional to the basic customs duty and can be levied in the absence of the latter. Each one of these is independent of the other, and any one of those can be levied without the rest. Paragraphs 10 to 15 of the judgment are relevant for this case, paragraph 14 which is of special relevance and is quoted below : "14. There are different types of customs duties levied under different Acts or rules. Some of them are : (a) a duty of customs chargeable under Section 12 of the Customs Act, 1962; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tervailing duty or additional duty under the Tariff Act or the Customs Tariff Act, goods imported, even though exempted from basic customs duty, may still be subject to the levy of additional duty under the respective enactments and they would be so subject unless and until they are specifically exempted by the Competent Authority in exercise of the powers vested under those respective enactments from such additional duty. In fact, a reference to the notifications issued from time to time show that the Central Government in exercise of this power of exemption under Section 25(1) of the Customs Act in some cases exempted the goods only from levy of basic customs duty, wholly or partially, and in some cases only from the levy of additional duty, wholly or partially. Some notifications may have even exempted the goods wholly or partially from the levy of both basic customs duty and additional Duty..." It is thus manifest that the additional duties under the Tariff Act can be levied even if the Central Government has issued a notification in the official gazette exempting levy of the basic customs duty in terms of Section 12 of the Act. The judgment principally dealt with Section 3 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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