Customs, Excise and Gold Tribunal - Delhi
Food Corporation Of India vs Collector Of Customs on 13 February, 1992
Equivalent citations: 1992(60)ELT416(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. This is a second round of appeal preferred by the appellants on the same issue after it was remanded for de novo consideration by CEGAT Order No. 6-212/1985 dated 27-2-1985. The appellants are aggrieved by the order-in-appeal dated 3-11-1989 passed by the Collector of Customs and Central Excise (Appeals), Madras by which he has confirmed the order-in-original No. C-11/22/81-AP dated 1-9-1988 passed by the Assistant Collector of Customs, Visa-khapatnam rejecting the refund claim of the appellants.
2. The appellants had imported 4150 MT of Ammonium Nitro Phosphate (ANP) and filed Bill of Entry on 7-11-1975 for its clearance. It was provisionally assessed to duty for want of test report and duty amount of Rs. 21,30,936.90 P. was collected vide Sl. No. 8/13-11-1975 extending the benefit under Customs Notification No. 115/73 dated 11-8-1973.
3. The test result indicated that the goods had failed in the test with regard to the specification mentioned in the said Notificationin respect of particular size. One of the specification mentioned in the said notification was regarding particular size according to which minimum 90% of the material should pass tyler sieve No. 16. According to the test report, 67.6% was retained on the tyler sieve 16. Therefore, the Bill of Entry was finalised without the grant of exemption under the said notification and goods were charged to duty at the rate of 60% plus 15% plus 15% additional duty. The appellants paid the differential duty of Rs. 81,86,815.16 P.
4. Their claim was rejected in the first instance. On appeal to the Tribunal, the matter was remanded for de novo decision, to furnish them with copy of the test report and to readjudicate the matter. The lower authorities had followed the said direction and after rehearing, have rejected their case on the same ground.
5. The Collector (Appeals) in the impugned order has held that the appellants were aware of the results of test report even before they appealed to the CEGAT and had not revealed about it before the Tribunal. He has observed that they had an opportunity to cross-examine the Chemical Examiner also which they did not choose to do so. The appellants, having not done so, cannot challenge it after a period of twelve years at such a belated stage. He has also observed that another consignment from the same vessel had passed the test and relief had been granted to that extent. But, as the supplier's specification was different in the instant case and the test result did not satisfy the requirements of the notification in question, the appellants were not entitled to the refund in the instant case.
6. The appellants have assailed the findings of the Test result in this case. They have contended that the import of the item was solely granted only to the appellants and the appellants' company was a Government of India concern. The notification was specially designed for their benefit. There was no dispute with regard to the item being Ammonium Nitro Phosphate and the test result had confirmed it. It was only with regard to the item having failed in the tyler sieve 16 test, which was not much significant, nor was in any way likely to change the constituent of the nature of the goods or the entitlement of the notification. They have submitted that the notification cannot be strictly construed as to take away the benefit specially earmarked for them alone, as it is a monopoly item and there was no other importer of the item in the country.
7. The Revenue have also filed the cross appeal. As they are not aggrieved by the order, it has to be taken as only written submissions. They have reiterated the findings of the lower authorities.
8. We have heard Shri D.N. Mehta, learned Consultant for the appellants and Shri M. Jayaraman, learned Departmental Representative for the respondents and have carefully considered their submissions and have perused the records.
9. The appellants' contention assailing the test results requires to be rejected. The original bill of entry was produced before us for perusal. We have noted the following endorsement made by the appellants' representative on the original bill of entry -
"B.E. presented for inspection and drawn samples. The samples drawn and sealed in our presence and that they are the representative samples of the entire consignment".
There is no denial of any of the principles of natural justice in this case also. Sh. Mehta had urged that if the Department had given them opportunity, they would have got a crusher and would have reduced the size of the materials to enable it to pass the sieve 16 test. The results revealed that the sieve had retained to an extent of 67.6% while the requirement is that of 90% shall pass tyler sieve 16. What can be gathered is that the size was big and hence 67.6% had been retained on the tyler sieve 16. The size of the item could have been reduced with a crusher also. It is not such an infirmity as to change the ingredient of the item itself. The next contention raised was that the Chemical Examiner may not have followed the procedure as per the Fertilizer Control Order in carrying out the test. There is no dispute with regard to the identity of the goods. The test results confirm the goods to be Ammonium Nitro Phosphate, hence the question of retest to conform the identity of the goods or to cross-examine the Chemical Examiner to find out the correctness of the test done does not arise. Shri Mehta next contended that the samples were not representative one and if proper procedure was followed, then the goods would have passed the test. This contention has also to be negatived as the samples have been drawn in the presence of the appellants' representative and the endorsement clearly discloses it to be a representative one. The appellants have never raised these contentions at any stage. They have paid the duty after they came to know about the result of the test and hence these contentions have all been taken up at a belated stage as held by the learned Collector.
10. The next contention is the liberal interpretation of the notification as the notification is specially designed for them alone. In this connection, Shri Mehta has relied upon the following rulings -
(1) Union of India v. T.I.S.C.O. - 1977 (1) E.L.T. (J 61) (2) Deccan Sales Corporation and Anr. v. V.R. Parthasarthy and Ors. - 1982 (10) E.L.T. 885 (3) Tata Oil Mills Co. Ltd. v. Collector of Central Excise - 1989 (43) E.L.T. 183 (S.C.).
11. Shri Jayaraman contended that the notification has to be strictly construed and there is no scope for intendment.
12. Let us examine the notification and see if there is scope for liberal interpretation in the light of the rulings relied on by Shri Mehta which are on this scope. The Customs Notification No. 115/73, dated 11-8-1973 reads as under -
"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 exempts -
(a) Di-Ammonium Phosphate having the specifications mentioned in part A of the Table below and imported by the Central Govt. for use as manure or in the production of complex fertilisers; and
(b) Ammonium Nitro-phosphate having the specification mentioned in part B of the said Table and imported by the Central Government for use as manure, from the whole of the duty of customs leviable thereon under the First Schedule to the Indian Tariff Act, 1934 (32 of 1934);
Provided that an undertaking is given at the time of importation of Di-Ammonium Phosphate for production of complex fertilizers, agreeing to pay, on demand, in respect of such quantity of Di-Ammonium Phosphate as is proved to the satisfaction of the Asstt. Collector of Customs to have been used for the said purpose an amount equivalent to the duty of customs leviable thereon under the said First Schedule on such quantity, but for this exemption.
TABLE
PART A
DI-AMMQNIUM PHOSPHATE (18-46-0)
(i) Moisture per cent by weight maximum 1.5
(ii)Total nitrogen all in ammoniacal form per cent by weight
maximum 18.0
(iii) Total phosphate (as P2O5) per cent by weight minimum 46.0
(iv) Water soluble phosphates (as P2 O5) per cent by weight
minimum (85 per cent of item (iii) above. 40.0
Particle Size : Not less than 90 per cent of the material shall pass Tyler Sieve 6 (equivalent to BS Sieve 5 & ASTM Sieve 6) and be retained on Tyler S over 16 (equivalent to BS Sieve 16 and Sieve 18).
PARTB
Ammonium Nitro Phosphate (20-20-0)
(i) Moisture per cent by weight maximum 1.50
(ii) Total nitrogen content per cent by weight minimum 10 per cent
minimum by weight shall be in ammoniacal form and the balance
nitrogen per cent weight in nitrate form 20.00
(iii) Phosphate (as P2 O5) in citrate to soluble form plus water soluble
form per cent by weight, minimum 20.00
(iv) Phosphate (as P2 O5) in water soluble form per cent by weight
minimum 6.66
(v) Calcium Nitrate per cent by weight Trace
Particle size: Minimum 90 per cent of the material shall pass tyler Sieve 16."
13. The results of the sample drawn has been written on the Bill of Entry which is as follows -
"No. 255-V/18-12-75 The sample is Ammonium Nitro Phosphate conforming to the Notification No. 115 F.No. 355-11-72-Cus. I dated 11-8-1973 except in particle size. Amount retained on tyler sieve 16 is 67.6%. Remnants returned"
As rightly contended by Shri Mehta, the learned Consultant, the goods have been identified and the test result clearly describes it so and it satisfies the requirement (i) to (v) of the notification except particle size. The notification is intended for Ammonium Nitro Phosphate. The notification does not stipulate a strict condition for ineligibility from exemption if less than 90% of the material passes Sieve 16. It is not a strict condition of the notification. Such a strict reading cannot be done specially to an exemption notification. Fertilizers were imported for the Agriculture sector for distribution to farmers at subsidised rates. Such tax burden will only place hardship both on the Government as well as on the poor consumers. The liberal interpretation has to be given to reduce the incidence of tax in this case, especially when the imported goods have satisfied the description and conditions (i) to (v) of the notification and regarding which there is no dispute except in particle size and retention size. If a strict interpretation of the notification is done, then it would defeat the purpose of the notification to grant exemption to the fertilizers. It is admitted by the Department that similar consignments from the same vessel have met the test and benefit of the notification has been granted to them. It is not explained as to how the goods have failed the retention test in percentage on the sieve. Sh. Mehta submitted that the nature of the goods changes due to rough handling and fertilizer being exposed to sun light and atmospheric air and the material is likely to get altered. He further submitted that the particle size is capable of being reduced by passing a roller over it. It is not such a deficiency as to make the goods different or such as to be put to a different use than manure or fertilizer. This contention is not denied by the Revenue. In that event the particle size would lose its significance. It is also not the case of the Department that the appellants have not utilised the imported goods as a manure or in the production of complex fertilizer. Admittedly, the imported goods have been used for the purpose for which it is imported and as such, the benefit of the notification has to be extended to the appellants.
14. The case law on the aspect of the matter also supports the appellants' contention. The same is discussed below.
(a) In Union of India and Ors. v. Tata Iron & Steel Co. Ltd., Jamshedpur 1977 (1) E.L.T. (J 61), the Supreme Court has upheld the High Court's finding that the notification would have to be interpreted in a manner that the Statute would not cast a burden twice over the payment of tax on the tax payer unless the language of the Statute is so compellingly certain to the effect. The Supreme Court further upheld the High Court's finding -
"that the notification does not say that exemption is granted only when duty paid pig iron is used and that the exemption would not be available if duty paid pig iron is mixed with other non-duty paid materials. If the intention of the Govt. were to exclude the exemption to duty paid pig iron when mixed with other materials, then the notification would have used the expression 'only' or 'exclusively" or 'entirely1 in regard to duty paid pig iron. The object of the notification was to grant relief by exempting duty paid pig iron".
(b) In Deccan Sales Corporation and Anr. v. R. Parthasarthy and Ors. as reported in 1982 (10) E.L.T. 885, the Bombay High Court has held at paras 27 and 28 as follows -
"It is now well settled that where a taxing provision or an exemption provision is capable of more than one interpretation, then that interpretation must be put which would reduce the incidence of tax or enlarge the ambit of the exemption provision.
If two interpretations of a provision are permissible and one interpretation may render the provision subject to serious constitutional challenge, the other interpretation ought to be preferred. In other words, the provision must be read down and given a restricted meaning to protect it from a legal challenge as to its vires or validity".
(c) In observation of the Supreme Court in the case Tata Oil Mills Co. Ltd. v. Collector of Central Excise as reported in 1989 (43) E.L.T. 183 (SC) in para 6 regarding the interpretation of notification, is also worthy of being noted here -
"We are of opinion that the view taken by the Excise authorities as well as by the Tribunal proceeds upon too narrow an interpretation of the notification. It is true, as Mr. Ganguli contended, that an assessee claiming relief under an exemption provision in a taxing statute has to show that he comes within the language of the exemption. But in trying to understand the language used by an exemption notification, one should keep in mind two important aspects (a) the object and purpose of the exemption and (b) the nature of the actual process involved in the manufacture of the commodity in relation to which exemption is granted. So far as (b) is concerned, it is common ground before us that rice bran oil as such is not directly used in the manufacture of soap. Rice bran oil contains glycerol and other impurities which have to be removed by a process of hydrolysis or hydrogena-tion and it is only the resultant purified rice bran oil that is actually used in the manufacture of soap. In fact, the Tribunal has given a clear finding that a pre-treatment of rice bran oil is required to be done as a matter of necessity for.its use in the manufacture of soap. Thus even a factory which consumes rice bran oil in the manufacture of soap in its factory first converts the oil into hydrogenated oil or fatty acid and then manufactures soap out of the latter. So far as (a) is concerned, the object of the notification - as even [the Tribunal finds - is to grant a concession to a manufacturer of soap who manufactures ... sic] the soap from rice bran oil to a substantial extent and thus discourage the use of edible oils in the manufacture. If these two aspects are considered together, it is clear that the emphasis in the notification is not that rice bran oil should be used as raw material in the very factory which produces the soap. The requirement is that the soap manufacture should, to a prescribed extent, be from rice bran oil as contracted with other types of oil. The contrast is not between the use of rice bran oil as opposed to rice bran fatty acid or. hydrogenated rice bran oil; the contrast is between the use of rice bran oil as opposed to other oils. That is the ordinary meaning of the words used. These words may be construed literally but should be given their fullest amplitude and interpreted in the context of the process of soap manufacture. There are no words in the notification to restrict it to only to cases where rice bran oil is directly used in the factory claiming exemption and to exclude cases where soap is made by using rice bran fatty acid derived from rice bran oil. The whole purpose and object of the notification is to encourage the utilisation of rice bran oil in the process of manufacture of soap in preference to various other kinds of oil (mainly edible oils) used in such manufacture and this should not be defeated by an unduly narrow interpretation of the language of the notification even when it is clear that rice bran oil can be used for manufacture of soap only after its conversion into fatty acid or hydrogenated oil".
In view of my findings, I allow the appeal.
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(S.L. Peeran) Member (Judicial) G. Sankaran, President
15. I have carefully perused the order prepared by learned brother Shri Peeran. I regret I am unable to agree with his conclusion.
16. Notification No. 115/73 dated 11-8-1973 exempts ammonium nitro phosphate imported for use as manure from the whole of the basic duty of customs. The exemption has not been extended to ammonium nitro phosphate simpliciter, imported for use as manure, but the substance conforming to the specifications spelt out in Part B of the Table to the notification. One specification is regarding particle size and the condition is that a minimum of 90% of the material shall pass Tyler sieve 16. In the present instance, the test revealed that 67.6% was retained on the sieve. Therefore, the condition as regards particle size specification has not been complied with.
17. It appears that, at the appropriate time, the results of the test were not challenged. On the other hand, it is apparent from the notations on the relative bill of entry that a sample was drawn and sealed by the customs authorities in the presence of the appellants and was certified by the latter as representative of the entire consignment. It is, therefore, too late in the day to contend at this stage that the samples might not have been drawn in accordance with the procedure prescribed in the Fertilizer Control Order or that the tests might not have been conducted properly. It is also of no avail at this stage to contend that, had the results been known, the appellants could have crushed the material to the requisite particle size because the goods had to conform to the prescribed specifications in the form they were imported.
18. The various decisions relied on by the appellants have laid down the proposition that procedural lapses should not stand in the way of substantive justice being done. In the present matter, however, it is not a question of any procedural lapse. The question is one of whether the goods were of the nature which had been clearly spelt out in the notification as eligible for exemption. If the goods did not conform to the specifications, then, they would not be eligible for the exemption. It is not for us to speculate on the rationale behind the particle size prescription.
19. Shri D.N. Mehta, learned counsel, for the appellants put forth a plea that at least that portion of the consignment (as shown by the sample) that complied with the requirements of the notification should be extended the concession. The argument appears to be that after leaving out the 67% of the material which did not pass the sieve 16 test, the remaining 33% must be given the exemption. This plea, on the face of it, is not acceptable. The purport of the notification is that the material must conform inter alia to the particle size specification, that is to say, a minimum of 90% of the material should pass through sieve 16. The notification clearly does not envisage exemption for that part of the material which passes through the sieve though a representative sample drawn from the consignment may not, as such, pass the test.
20. In the above view of the matter, I would propose an order dismissing the appeal.
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(G.Sankaran) President 8-5-1991 The following point of difference has emerged from the two above orders and requires to be resolved in terms of Section 129C(5) of the Customs Act, 1962 ,:-
"Whether on the facts and in the circumstances of this case, the consignment of Ammonium Nitro Phosphate imported by appellants was eligible for the benefit of duty exemption in terms of Customs Notification No. 115/73 dated 11-8-1973 as held by Member (Judicial) or ineligible for the benefit as held by the other Member."
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(S.L. Peeran) (G. Sankaran)
Member (Judicial) President
8-5-1991
Harish Chander, Vice President
21. I have perused the order written by Shri G. Sankaran, the then President and Shri S.L. Peeran, Member Judicial. The facts at length have been narrated by the learned brother Shri S.L. Peeran, Member Judicial and as such, I need not reproduce the same. The following point of difference has been referred to me for resolving the same :-
"Whether on the facts and in the circumstances of this case, the consignment of Ammonium Nitro Phosphate imported by the appellants was eligible for the benefit of duty exemption in terms of Customs Notification No. 115/73-Cus., dated 11th August, 1973 as held by Member (Judicial) or ineligible for the benefit as held.by the other Member."
It is not disputed that the appellants had imported 4150 metric tonnes of Ammonium Nitro Phosphate (ANP) and had filed bill of entry on 7th November, 1975 and had claimed the benefit of exemption Notification No. 115/73-Cus., dated 11th August, 1973. Shri D.N. Mehta, the learned advocate has appeared on behalf of the appellants. He has pleaded that importation was made by Food Corporation of India and the product is Ammonium Nitro Phosphate and the appellants had claimed benefit of Notification No. 115/73-Cus., dated 11lth August, 1973. The goods were cleared in 1975 and the duty amount involved is Rs. 82 lacs. Shri Mehta, the learned advocate argued that in terms of Notification No. 115/73-Cus., dated 11th August, 1973 that the condition laid down in the notification for the import was that minimum 90% of the material will find tyler sieve 16 which is only for the purposes of fulfilling of the contract with the foreign supplier. In support of his argument, he" referred to a decision of the Supreme Court in the case of Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise reported in 1990 (28) ECC 187.
22. Shri S.K. Roy, the learned SDR has appeared on behalf of the respondent. He pleaded that specific particle size is a substantive requirement of the notification and pleaded that for the correct interpretation of the notification, the actual wording of the notification has to be looked into. He argued that the citations given by the learned advocate are not applicable to the facts and circumstances of the present case. He argued that when a clear specific condition is there for getting the benefit of Notification No. 115/73-Cus., dated 11th August, 1973, the appellants have to satisfy the condition and the goods imported have to conform with the conditions laid down in the notification. He argued that notification has to be read in the correct manner and the advantage or disadvantage of the assessee has not to be looked into, and in interpreting the notification there is no scope of intendmentand in case the notification is interpreted not in conformity with the wording, the purpose of the notification is defeated. He also argued that the judgments mentioned by the learned Judicial Member are distinguishable from Tomco Mills' case. He referred to page 7 of the order recorded by the Member Judicial and particle size is the strict condition and no reasoning has been given by the learned Judicial Member. He also argued that the tax burden has to be determined by the Government. He argued that the argument of the learned advocate for the crushing of the size and thereby reducing the size of the particle is not tenable and the goods were already cleared and as such, there was no question of crushing. He argued that the notification has to be construed strictly and the goods have to be seen at the time of importation. He has pleaded for the rejection of the appeal.
23. In reply, Shri D.N. Mehta, the learned advocate pleaded that size of the particle is not a very specific condition and the notification should be interpreted in favour of the assessee. He pleaded for the acceptance of the appeal.
24. In have heard both the sides. I have perused the orders written by Shri G. Sankaran, the then President and Shri S.L. Peeran, Member Judicial. For the proper appreciation of the correct position, the Notification No. 115/73-Cus., dated 11th August, 1973 is reproduced below :-
"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 exempts -
(a) Di-Ammonium Phosphate having the specifications mentioned in part A of the Table below and imported by the Central Govt. for use as manure or in the production of complex fertilisers; and
(b) Ammonium Nitro-phosphate having the specification mentioned in part B of the said Table and imported by the Central Government for use as manure, from the whole of the duty of customs leviable thereon under the First Schedule to the Indian Tariff Act, 1934 (32 of 1934);
Provided that an undertaking is given at the time of importation of D-Am-monium Phosphate for production of complex fertilisers, agreeing to pay, on demand, in respect of such quantity of D-Ammonium Phosphate as is proved to the satisfaction of the Asstt. Collector of Customs to have been used for the said purpose an amount equivalent to the duty of customs levi able thereon under the said First Schedule on such quantity, but for this exemption.
TABLE
PART A
DI-AMMONIUM PHOSPHATE (18-46-0)
(i) Moisture per cent by weight maximum 1.5
(ii) Total nitrogen all in ammoniacal form per cent by weight
maximum 18.0
(iii) Total phosphate (as P2O5) per cent by weight minimum 46.0
(iv) Water soluble phosphates (as P2 O5) per cent by weight
minimum (85 per cent of item (iii) above. 40.0
Particle Size : Not less than 90 per cent of the material shall pass Tyler Sieve 6 (equivalent to BS Sieve 5 & ASTM Sieve 6) and be retained on.Tyler S over 16 (equivalent to BS Sieve 16 and Sieve 18).
PART B
Ammonium Nitro Phosphate (20-20-0)
(i) Moisture per cent by weight maximum 1.50
(ii) Total nitrogen content per cent by weight minimum 10 per cent
minimum by weight shall be in ammoniacal form and the balance
nitrogen per cent weight in nitrate form 20.00
(iii) Phosphate (as P2 O5) in citrate to soluble form plus water
soluble form per cent by weight, minimum 20.00
(iv) Phosphate (as P2 Os) in water soluble form per cent by weight
minimum 6.66
(v) Calcium Nitrate per cent by weight Trace
Particle size: Minimum 90 per cent of the material shall pass tyler Sieve 16."
In the matter before me the appellants had imported Ammonium Nitro Phosphate (20-20-0). A simple perusal of the notification shows that there is a description for the particle size and it is prescribed that "minimum 90% of the material shall pass tyler sieve 16."
The results of the sample drawn has been written on the bill of entry which is reproduced below :-
"No. 255-V/18-12-75 The sample is Ammonium Nitro Phosphate conforming to the Notification No. 115 F. No. 355-11-72-Cus. I dated 11-8-73 except in particle size. Amount retained on tyler sieve 16 is 67.6%. Remnants returned."
A simple perusal of the test report shows that amount retained on tyler sieve 16 is 67.6%, whereas the condition is that 90% of the material should pass tyler sieve 16. Hon'ble Supreme Court in the case of Hemraj Gordhandas v. H.H. Dave, Assistant Collector of Central Excise and Customs, Surat and Ors. reported in 1978 (2) E.L.T. J 350 has held as under :-
"Place of intendment in a taxing statute. - It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. If the tax-payer is within the plain terms of an exemption he cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. In a Court of Law or Equality what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact either in express words or by reasonable or necessary implication."
As per test report, 67.6% was retained on the tyler sieve.
25. I have duly considered the decisions cited by the learned advocate, Shri D.N. Mehta. The judgments do not help him as the facts are different and I am in full agreement with Shri G. Sankaran, the then President for the views given in para No. 18 of his order and in the present matter there are no procedural lapses. The only question is one : whether the goods are of the nature which had been clearly spelt out in the notification as eligible for exemption. If the goods did not conform with the specifications, then, they would not be eligible for the exemption, and it is not for me to speculate on the rationale behind the particle size prescription. The learned advocate, Shri D.N. Mehta had also argued that after leaving out 67% of the material which did not pass the sieve 16 test, the remaining 33% must be given the exemption. This plea, on the face of it, is not acceptable and the purport of the notification is that material must conform, inter alia, to the particle size specification, that is to say, minimum 90% of the material should pass through sieve 16. The notification clearly does not envisage exemption for that part of the material which passes through the sieve though a representative sample drawn from the consignment may not, as such, pass the test. Even as a third Member, my powers are very much restricted. While disposing of the matter I have to confine myself to the point of difference referred to me which has been reproduced above. So were the observations of the Allahabad High Court in the case of Jan Mohammed, Nainital v. The Commissioner of Income-tax reported in AIR 1953 Allahabad 119. Relevant extract from the said judgment is reproduced below :-
"The third Member could, therefore, decide only the point that had been referred to him and he could not formulate a new point for himself on which he could base his decision. It appears to us to be further clear from a reading of the sub-section quoted above that after the decision of the point or points referred to him by the third Member, the case should go back to the original Tribunal because so far as we can see, the third Member has not been given any right to decide the appeal. According to Section 5A(6) of the Income-tax Act, the appeal must be decided by the Tribunal which must consist of a Bench of not less than two Members.
These rules do notr however, show that it was intended that the third Member should finally dispose of the appeal when only some point or points had been referred to him for decision. In our view, the case with the opinion of the third Member should go back to the Tribunal for final decision. The Tribunal, when finally disposing of the appeal, may, no doubt, allow other points to be raised before it, if they consider it proper. The third Member, however, can only answer the point or points that were referred to him for decision and on which there was a difference of opinion."
26. In view of these observations, the argument of the learned advocate for granting benefit for 33% which passed through the sieve 16 test cannot be accepted. Accordingly, I am of the view that Ammonium Nitro Phosphate imported by the appellants is not eligible for the benefit of duty exemption in terms of Notification No. 115/73-Cus., dated 11th August, 1973. I agree with the views of Shri G. Sankaran, the then President.
27. In the result, the appeal is dismissed.
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(Harish Chander
February 10,1992 Vice President
In view of the majority opinion, the appeal is dismissed.
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(K.S. Venkataramani) (S.L. Peeran)
Member (T) Member (J)