1997 (11) TMI 480

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....mended was extended. The Asstt. Collector, Customs, New Delhi observed that as the goods were classifiable u/h No. 98.01 of the Customs Tariff, the benefit of Notification No. 187/86-Cus., dated 1-3-1986 was not available as the said exemption was related to the goods classifiable under Chapter 84 or 85 of the Customs Tariff as appeared against Serial No. 40 of the Table annexed to that notification. On appeal, the Collector, Customs, New Delhi confirmed the said order-in-original. 2. We have heard Ms. Ginny Bedi, Advocate for the appellant and Shri A.K. Agarwal, SDR for the respondent Revenue. 3. Ms. Ginny Bedi, Advocate submitted that it was the option of the appellant to avail of the benefit of the exemption notification which was more beneficial to them. She submitted that the goods in question were otherwise classifiable u/h No. 84 or 85 of the Customs Tariff and as the Notification No. 187/86-Cus., dated 1-3-1986 was applicable to the goods imported, the benefit from the Auxiliary Duties could not be denied. She referred to the Hon'ble Madras High Court's decision in the case of Tamil Nadu Newsprint Papers Ltd., Madras v. Appraiser, Madras Customs - 1988 (33) ....

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....ms which are levied under the provisions of the respective Finance Bills/Acts. It was provided in that Notification that nothing contained in that notification shall effect the exemption granted under any other notification for the time being in force from the duty of customs specified in the First Schedule to the Customs Tariff in respect of the goods referred to in this notification. We find that this exemption notification has been issued only u/s 25 of the Customs Act and not in exercise of the powers relating to the relevant clause in the Finance Bill/Act relating to the auxiliary duty of customs. Further, the proviso under the said notification when referred to other exemptions, only so referred to the duty of customs specified in the First Schedule. There is no reference to the auxiliary duty of customs. 7. In the case of C.C.E., Hyderabad v. Vazir Sultan Tobacco Co. Ltd. - 1996 (83) E.L.T. 3 (S.C.), the Supreme Court with reference to the special customs duty had held that special excise duty is an independent duty of excise separate and distinct from the duties of excise leviable under Central Excise Act, 1944. Para 5 from that decision is extracted below : 5.&e....

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....fied under that Chapter 98. Once the goods had been classified under Heading No. 98.01, we consider that the classification could not be changed for the purpose of auxiliary duty of customs. Notification No. 187/86-Cus., dated 1-3-1986 had been issued in exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Tariff, 1962 read with sub-clause (4) of Clause 49 of the Finance Bill, 1986 and provided exemption to the goods specified in Column (3) of the Table annexed to that Notification and falling within chapters of the Customs Tariff as specified in the corresponding entry in Column (2) of the said Table. A harmonious reading of the exemption Notification will show that both the conditions had to be satisfied before the benefit of this exemption notification was extended. As the goods had been classified under Chapter 98, they could not be brought back to Chapter 84 or 85 simply because a concessional rate of auxiliary duty had been provided therein. In this Notification, there is no reference to the goods falling under Chapter 98. We find that for the goods classifiable under Chapter 98 there is a specific exemption Notification No. 189/86-Cus., dated 1-3-....

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....in Notification No. 62/83 viz., 'Exempts the goods specified' in Column (3) of the Table annexed hereto and falling under Heading No. or sub-heading No. of Heading No. of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), specified in the corresponding entry in Column (2) of the said table....." are very significant. The Notification prescribes two conditions for exemption. The first condition is that the goods must be of the description specified in Column (3) of the Table and the second condition is that the goods must fall under Heading No. or sub-heading No. of Heading No. of the First Schedule specified in Column (2) of the Table. If certain goods fall under a description found in Column (3) of the Table and do not fall under the heading specified in Column (2), they would not be covered by the Notification. Similarly, if certain goods fall under the Heading specified in Column (2) but do not satisfy the description in Column (3) of the Table, they would also not be covered by the Notification. Thus, on a plain reading of the Notification, it is clear that the paper making machinery and parts thereof would be exempted from the whole of the auxiliary duty of custo....

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....re at least 75% bagasse pulp is used for such manufacture, and the Directorate General of Technical Development certifies in each case that such articles are required for the said purpose. But, it exempts only those articles falling under Heading No. 84.66 of the First Schedule. It is a condition precedent for claiming exemption under the said Notification that the import should be under Heading No. 84.66. When the Central Government takes care to specify the Heading and grants exemption to goods of a particular description under that Heading, it will not be open either to the importer or to the Customs Department to contend that the Notification would apply to all goods of such description whether they fall under that heading or not. In our view, the relevant Notification, viz. Notification No. 61/83 and Notification No. 62/83 are unambiguous in their terms and there is no question of overlapping. We hold that the respondent is not entitled to the benefit of Notification No. 62/83 and the appellants are right in levying auxiliary duty as per the terms of Notification No. 61/83. 11. The ld. Advocate had also referred to the Larger Bench decision in the case of Gujarat Steel....