Supreme Court of India
Gramophone Co. Of India Ltd. vs Union Of India And Others on 15 September, 1993
Equivalent citations: AIR1994SC1195, 1996(53)ECC32, 1994ECR493(SC), 1994(74)ELT490(SC), 1995SUPP(4)SCC755, AIR 1994 SUPREME COURT 1195, 1994 AIR SCW 515, 1995 (4) SCC(SUPP) 755, 1995 SCC (SUPP) 4 755, (1994) 74 ELT 490, (1996) 53 ECC 32
Bench: B.P. Jeevan Reddy, S.P. Bharucha
JUDGMENT
1. This appeal is preferred against the judgment of the Government of India in a Revision under Section 129 of the Customs Act, as it then stood. The Revision filed by the appellant was dismissed.
2. The appellant is a manufacturer of Gramophone records in India. For the said purpose, it says, it used to import Poly Vinyl Chloride (P.V.C.) L.P. Biscuit material. We are concerned herein with nine consignments imported from Yugoslavia between September 22, 1970 to October 23, 1971, the total C.I.F. value whereof exceeded Rs. 13 lakhs. The customs authorities treated the said imported goods as modified resins and levied customs duty at the rate of 100% under Item 82(3) of the Indian Customs Tariff. The authorities also levied countervailing duty under Entry 15(1)(a)(ii) of the Central Excise Tariff. The countervailing duty levied upon the appellant was in a sum of Rs. 94,274.35. The appellant's case was that the material imported by him was not modified resins but pure resins. He submitted that inasmuch as the said goods were imported from Yugoslavia, he is entitled to 50% rebate in the customs duty under the Exemption Notification No. 69 dated June 15, 1968.
3. By Notification No. 69 dated June 15, 1968, the Government of India exempted resins imported from U.A.R. or Yugoslavia from 50% of the duty payable. Resins were dutiable under Item 82(3) of the Indian Customs Tariff, which read as follows at the relevant time :
(a) Artificial or synthetic resins and plastic materials in 100% ad any form whether solid, liquid or pasty or as powder valorem. granules or flakes or in the form of moulding powders.
(b) Articles made of plastics, the following namely :
Tubes, rods, sheets, foils, sticks, other rectangular or profile 100% ad shapes whether laminated or not, and whether rigid or valorem. flexible including lay flat tubings and polyvinyl chloride sheets.
4. According to the Revenue, the material imported by the appellant was modified resins and not resins falling under Item 82(3). The said view has been affirmed in revision.
5. Sri Dholakia, learned Counsel for the appellant did not question the finding of the authorities under the Act regarding the nature of the goods imported. His argument is this : if the goods imported by him is not resins but modified resins, the levy of countervailing duty under Entry/Item 15A is impermissible. He refers to and relies upon the Public Notice No. 85 dated March 20, 1972, which reads thus :
Polyvinyl Chloride" assessment of additional (Countervailing) duty under Item 15A(1)(ii) of C.E.T. classification regarding. It is notified for information of the trade and all other concerned that the Board has observed after consultation with the Ministry of Law that "Polyvinyl Chloride" falling under Item 15A(1)(ii) of C.E.T. would continue to refer only to 'P.V.C. resins' in their pure and straight form and that modified forms of P.V.C. resins' not being covered by item 15A(1)(ii) of C.E.T., will not be liable to pay additional (Countervailing) duty equal to that specified under the subject sub-item.
6. Sri Dholakia says that in terms of the said Public Notice, additional duty is not leviable on modified resins. He says that it is not open to the Government to deny the benefit of the said Public Notice and thus levy both the customs duty as well as the countervailing duty. The learned Counsel submits that he raised this submission even before the appellate authority and the Government but that they erroneously refused to permit him to raise the said question.
7. We are not satisfied that the Government or the appellate authority exercised their discretion arbitrarily in refusing to permit the appellant to raise the said alternative ground relating to countervailing duty. The appellant's case before the first authority was that the material imported by him is resins and that he is entitled to the benefit of the Notification No. 69 aforesaid. He raised no other contention before the first authority. Indeed, the Public Notice relied upon by the appellant was issued only in March, 1972 whereas the import in question took place during the period September, 1970 and October, 1971. We cannot say, in these circumstances that the appellate authority and the Government exercised their discretion in an arbitrary or unreasonable manner in declining to permit the appellant to raise the said alternate plea based on a Public Notice issued long after the import in question. We see no error in the order under appeal. The appeal accordingly is dismissed. There shall be no order as to costs.
8. It is, however, made clear that it is open to the appellant to raise the said alternate plea, if he is so advised, before the appropriate authorities in accordance with law.
Writ Petition No. 584 of 1974 :
9. It is stated by Sri A. Subba Rao, learned Counsel for the Union of India that the appellant has also filed a writ petition (being writ petition No. 584 of 1974) with respect to this very subject matter. Sri Dholakia says, he has no information on that score. List Writ Petition No. 584 of 1974 for orders on September 21, 1993.