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TMI Blog2006 (8) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... aying that the exemption from auxiliary duty in respect of the same part will be available only where the duty chargeable on the part is more than, but becomes equal to that on the whole article by applying the 1979 notification but not where the duty on the part is the same as that of the whole even otherwise. Equally, it seems absurd to say that when the part suffers a basic duty of 40% and the whole a duty of 40%, there will be a countervailing duty but that there will be no such duty where the basic duty on the part is 41% or more but reduced to 40% because of the 1977 notification. The correct position appears to be that the purpose and purport of the 1979 notification is to ensure that, in respect of the articles listed therein, the part should not suffer a higher duty than the whole. The 1980 notification likewise exempts this category of articles, which enjoy the benefit of the same or less duty on the part than that on the whole, from auxiliary duty. Appeal allowed & hold that the appellant is entitled to refund of the sum of Rs. 1,31,255/- but without any interest. X X X X Extracts X X X X X X X X Extracts X X X X ..... irtue of such notification which are specified in the Schedule to the above such notification. Once the party opts to pay the tariff rate of Customs Basic Duty, the notification No. 192/92 will not be applicable since the goods no longer remain partially or wholly exempted for the benefit of notification No. 173/92 as envisaged vide the notification (No. 192/92). In view of the above the party was required to pay 40% (Basic Customs Duty) + 45% (Auxiliary + CVD) duty. Where as they have paid 55% + 5% + CVD." 4.The judgment of this Court in the case of CC v. Bharat Heavy Electricals Ltd. - 1992 (61) E.L.T. 332 (S.C.) = (1993) 1 Suppl. SCC 489 was distinguished on the ground that the facts in the present case were different than the facts in the aforesaid case. 5.Being aggrieved, the appellant filed an appeal before the Commissioner (Appeals) which was rejected upholding the order-in-original. 6.Being further aggrieved, the appelant filed an appeal before the Tribunal which has been rejected by the impugned order. The Commissioner (Appeals) as well as the Tribunal have adopted the reasoning given in the order-in- original in rejecting the claim of refund filed by the appellant. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be, specified in the Schedule below, from so much of the auxiliary duty of customs leviable thereon under subsection (1) of section 111 of the said Finance Act as is in excess of the amount calculated at the rate of 5 per cent of the value of such goods as determined in accordance with the provisions of section 14 of the first mentioned Act : Provided that the exemption under this notification with respect to any goods mentioned in any notification specified in the said Schedule shall be subject to the conditions, if any, subject to which goods are exempt by virtue of such notification, either partially or wholly from the duty of customs specified in the First Schedule to the said Customs Tariff Act." 12.Notification No. 173/92 finds mention at serial No. 95 and the same reads as under : "95. No. 173-Customs, dated the 30th April, 1992." 13.Counsel for the parties have been heard at length. 14.Section 12 of the Customs Act, 1962 provides that duty of customs shall be levied at the rates specified in the Act. Section 2 of the Act provides that duties of customs shall be levied as specified in the First and Second Schedules. First Schedule to the Act gives rates of customs dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act only because it had availed of the benefit of partial exemption from payment of auxiliary duty as provided under notification 192/92. 16.The view taken by us finds support from the decision of this Court in Bharat Heavy Electricals Ltd. (supra). In Bharat Heavy Electricals Ltd. (supra), this Court rejected the following contention : "(ii) The relief in respect of auxiliary duty under Notification No. 41/80 is available only where the goods in question are partially or wholly exempt from duty of customs by virtue of the notifications of the Government of India specified in the Schedule. In the present case the duty of customs leviable on the part taken by itself, under Item Heading No. 92.04, as well as the duty leviable on the article of which it forms a part, under Item 84.04/05, are the same. Consequently, the pressure gauges have not become entitled to any exemption or concession by virtue of the Notification No. 35/79. The terms of Notification No. 41/80 are thus not fulfilled and the assessee is not entitled to the relief claimed." raised on behalf of the revenue in the following terms : 8.The second contention of the learned Counsel runs thus: the concession or exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depend, in this view, on the practical effect of the application of the 1979 notification in a particular case. Its applicability should not be confined to items of goods in respect of which a reduction in duty is actually enjoyed under one of the notifications included in the Schedule to the 1980 notification. There appears to be no logic in saying that the exemption from auxiliary duty in respect of the same part will be available only where the duty chargeable on the part is more than, but becomes equal to that on the whole article by applying the 1979 notification but not where the duty on the part is the same as that of the whole even otherwise. Equally, it seems absurd to say that when the part suffers a basic duty of 40% and the whole a duty of 40%, there will be a countervailing duty but that there will be no such duty where the basic duty on the part is 41% or more but reduced to 40% because of the 1977 notification. The correct position appears to be that the purpose and purport of the 1979 notification is to ensure that, in respect of the articles listed therein, the part should not suffer a higher duty than the whole. The 1980 notification likewise exempts this category ..... X X X X Extracts X X X X X X X X Extracts X X X X
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