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High Court Of Calcutta
Dipak Kumar Sen, G. N. Ray
CONTINENTAL MARKETING PVT.LTD. - Appellant
Versus
UNION OF INDIA (UOI) - Respondent
Matter 601 Of 1983
Decided On : 08/30/1985
CUSTOMS - DUTY - ADDITIONAL DUTY - EXEMPTION - PLASTIC FILMS - NOTIFICATION NO. 228/76-CUS. , DATED 2ND AUGUST, 1976 - INTERPRETATION - PLASTIC SHEETS AND PLASTIC FILMS - DISTINCTION - CLASSIFICATION - TAXING STATUTE - STRICT CONSTRUCTION - DUTY LEVIABLE ON THE DATE OF ISSUANCE OF WRIT - PORT CHARGES - VALIDITY NOT ADJUDICATED.
Fact of the Case:
Appellant imported polyester plastic unsupported and polyester plastic material under valid licenses. Appellant filed a bill of entry for warehousing the goods, which were not warehoused and remained at the Port. In January 1983, Appellant applied for release of goods for home consumption and submitted necessary documents for calculation and levy of customs duty. Customs authorities assessed basic customs duty, auxiliary duty, and additional duty under Section 3 of the Customs Tariff Act, 1975. Appellant contended that the goods were exempt from additional duty under Notification No. 228/76-Cus., dated 2nd August, 1976, as amended. Appellant filed a writ petition challenging the levy of additional duty and seeking release of goods on payment of customs duty only.
Finding of the Court:
The court held that plastic sheets and plastic films were different articles or commodities at the material time, based on the definitions in IS:2828-1964, the separate treatment of sheets and films in the Customs Tariff Act, 1975, the Central Excises and Salt Act, 1944, and the notifications issued thereunder. The court found that Notification No. 228/76-Cus., dated 2nd August, 1976, as it stood amended, exempted plastic films from the payment of additional duty under Section 3 of the Customs Tariff Act, 1975. The court rejected the contention that the goods should be subject to the current rate of duty since the Notification was no longer in force, holding that the duty leviable on the date the writ was issued was payable by the appellants.
Issues: 1. Whether plastic sheets and plastic films are distinct articles or commodities. 2. Whether Notification No. 228/76-Cus., dated 2nd August, 1976, as amended, exempted plastic films from additional duty under Section 3 of the Customs Tariff Act, 1975. 3. Whether the duty leviable on the date of issuance of the writ is payable by the appellants.
Ratio Decidendi: 1. The court relied on the definitions in IS:2828-1964, the separate treatment of sheets and films in the Customs Tariff Act, 1975, the Central Excises and Salt Act, 1944, and the notifications issued thereunder to conclude that plastic sheets and plastic films were different articles or commodities at the material time. 2. The court interpreted Notification No. 228/76-Cus., dated 2nd August, 1976, as it stood amended, and found that it exempted plastic films from the payment of additional duty under Section 3 of the Customs Tariff Act, 1975. The court noted that the Notification was not expressly rescinded or revoked by any other notification. 3. The court held that the duty leviable on the date the writ was issued was payable by the appellants, as the appellants had sought to clear the goods for home consumption on that date.
Final Decision: The court allowed the appeal, made the Rule nisi absolute, and directed the Customs Authorities to allow clearance of the goods in dispute upon payment of basic and auxiliary Customs Duties. The court also directed that additional duty under Section 3 of the Customs Tariff Act, 1975, was not to be levied. The court clarified that the validity of the Port charges claimed by the Port Authorities was not adjudicated upon and that the goods could be cleared upon payment of all lawful Port charges.
( 1 ) M/s. Continental Marketing Pvt. Ltd. , the appellant No. 1, carries on business of import and export and in course of its business imported into India under valid licences 2973. 6 Kgs. (59 rolls) of Polyester plastic unsupported, of the specification 12 micron x 1020 mm x 3000 meters and 10. 920 Kgs. (104 rolls) of the said material of specification 25 micron x 1020 mm x 3000 meters by the vessel "cristobal Maru" which arrived at Calcutta on or about the 23rd September, 1982.
( 2 ) THE Appellant No. 1 thereafter filed a bill of entry for warehousing the said goods which were landed at the Port of Calcutta. The said goods however were not warehoused and have been lying at the Port till date. Sometime in January 1983, the Appellant No. 1 applied for release of the goods for home consumption and submitted necessary documents for calculation and levy of customs duty.
( 3 ) THE Customs Authorities assessed that basic customs duty of 100% plus auxiliary duty as also an additional duty under Section 3 of the Customs Tariff Act, 1975 read with Chapter 15a of the Central Excise, were leviable on the said goods.
( 4 ) THE Appellant No. 1 contended that under Notification No. 228/76-Cus. , dated the 2nd August, 1976 as amended by Notification No. 443/76-Cus. , dated the 29th November, 1976 the goods were exempt from the additional duty under the Customs Tariff Act, 1975 and sought to clear the goods on payment of customs duty only. The contentions of the Appellant No. 1 were not accepted by the Customs Authorities.
( 5 ) ON the 12th April, 1980 the Appellant No. 1 and Sriniwas Rastagir the Financial Controller and the constituted Attorney of the Appellant No. 1, the Appellant No. 2, moved this court under Article 226 of the Constitution against the Union of India, the Collector of Customs and the Assistant Collector of Customs, Group 11, Calcutta, who were impleaded as the Respondents to the application. They are also the Respondents before us in this appeal.
( 6 ) ON the 3rd May, 1983, a Rule nisi was issued on the writ application calling upon the Respondents to show cause why appropriate writs should not be issued and directions should not be given directing them not to levy or demand any additional duty under the Customs Tariff Act on the said goods and directing them further to release the goods after realising only the Customs duty and issue a detention certificate. An interim order was also passed as follows:". . . subject to the petitioner paying usual customs duty and auxiliary duty and as regards the countervailing duty the petitioner must pay 50% of the same in cash and furnish a Bank guarantee for the remaining 50%. The Bank guarantee must be furnished within a period of six weeks from date to the satisfaction of the Collector of Customs, Calcutta. Till such Bank guarantee is furnished the petitioner shall deposit an equivalent amount in cash with their Advocate-on-record".
( 7 ) IN compliance with the said order dated the 3rd May, 1983, the appellants deposited with their Advocate-on-record 50% of the countervailing duty in cash and furnished Bank guarantee for the balance 50%. The Customs Authorities issued a wharf rent exemption certificate dated the 3rd June, 1983 for exemption of payment of rent to the Calcutta Port Authorities for 305 days calculated from the 11th November, 1982 till the 3rd June, 1983 the period for which the goods were lying at the Calcutta Port.
( 8 ) THE Port Authorities however contended that under the rules of the Port the appellants were not entitled to exemption of rent on the certificate of the Customs Authorities as issued.
( 9 ) ON the 7th July, 1983, the appellants filed an application in the pending writ petition on which an order was passed on the 17th August, 1983 Impleading the Calcutta Port Trust and the Superintendent of the said Trust as added respondents in the proceedings.
( 10 ) AN affidavit was affirmed by Banarasi Das, the Assistant Collector o
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