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1991 (5) TMI 265
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....nts. The examination report and the photographs received from the dock staff revealed that the machine was supplied with gas flushing system but had no vacuumising facility. While, therefore, the importer's claim for OGL was conceded, their request for application of Notification No. 125/86 for duty purposes could not be entertained. The Assistant Collector had observed that the imported machine was basically of the FFS type i.e. form, fill and seal machine and in order to qualify for the benefit of Entry No. 17 of the Notification No. 125/86, the machine was required to have both vacuumising and gas flushing facilities and the machine imported by the importer did not have the facility of vacuumising and as such the benefit of Entry No. 17 could not be extended. He had further observed that Entry No. 18 which was also claimed for those machines where readymade flexible packages were packed by a gas flush packing system and the imported machine was basically an FFS machine and the relevant entry for such machine was Entry No. 17, which, as explained above, was not available to the importer since all the specifications thereof were not satisfied. The Assistant Collector did not a....
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....urteen days. An ocean freighter takes 12 days to sail from U.S. Ports to Asian markets. Air freight takes only hours for about one dollar per pound. Not surprisingly most U.S. beef destined for Asia is frozen. But not for long. Meat packers now wrap beef in air tight plastic and suck out the air. It is called vacuum packaging and it keeps meat fresh for at least 30 days plenty of time for sea freight at about 15 cents per pound. The next step up the technological ladder is controlled atmosphere package or CAB. The air in a package is replaced with another gas usually carbon dioxide or nitrogen which slows spoilage. Cap enables US farmers to sell more than 2,000 tonnes of strawberries alone every year. The fragile fruit is picked in the meaning packed in boxes flooded with carbon dioxide and loaded aboard air freighters by 4 a.m. The bright red berries land in Tokyo, Hongkong and other destination as ripe, juicy, and sweet as the moment they left the field. This list of products that travel the globe under controlled atmosphere is growing. Asparagus sails to Asia by the ton, swaddled in a protective CAP Nectarines will be flown across the Pacific for the first time this summer....
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....s with gas flushing and vacuumising facility and the machine imported had only one such facility (gas flushing), he had upheld the findings of the Assistant Collector and had rejected the appeal. Being aggrieved from the aforesaid order, the appellant has come in appeal before the Tribunal. 3. Shri G. Ramaswami, the learned Senior Advocate with Shri M. N. Kothari, Advocate and Ms. Sujata Kashyap, Advocate have appeared on behalf of the appellant. Shri G. Ramaswami, the learned Senior Advocate has reiterated the facts. Shri G. Ramaswami, the learned Senior Advocate pleaded that the appellants had imported automatic form fill and seal packaging machine vide Bill of Entry No. 2519/258 dated 1st August, 1987. Shri G. Ramaswami, the learned Senior Advocate pleaded that the machine imported by the appellants is for the purpose of packaging. He pleaded that if the machine is to be used for the purpose of packaging of meat, then there has to be a different vacuumising system and in case the same is to be used for packing of the potato chips, then there has to be an arrangement for gas flushing as potato chips are brittle and in case for the purpose of packing of potato chips if vacuumisin....
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....tention of the Government. He has referred to Notification No. 125/86-Cus., dated 17th February, 1986 which appears on page 47 of the paper book and has referred to Serial Nos. 17, 18 and 19 of the said notification. Shri Ramaswami pleaded that description at Serial No. 17 is "FFS with vacuumising and inert gas flushing". Shri G. Ramaswami pleaded that the word "and" is to be read as "or". He argued that the notification should be interpreted in such a way that it should not lead to absurdity and the construction has to be read in a constitutional manner. In support of his argument, he referred to a judgment of the Supreme Court in the case of R.L. Arora v. State of Uttar Pradesh reported in AIR 1964 SC 1231 where the Hon'ble Supreme Court had observed that if the language used was capable of only one construction and failed to carry out the intention of Parliament when making the amendment, the amendment may have to be struck down if it contravenes a constitutional provision. A literal interpretation is not always the only interpretation of a provision in a statute and the Court has to look at the setting in which the words are used and the circum....
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....ion where he has dealt with conjunctive and disconjunctive word "and". He has also referred to two English judgments of King's Division Bench reported in (1921) 1 King's Bench 403. Shri G. Ramaswami pleaded that "Where there are general words of description, following an enumeration of particular things such general words are to be construed distributively, reddendo singula singulis; and if the general words will apply to some things and not to others, the general words are to be applied to those things to which they will, and not to those to which they will not apply; that rule is beyond all controversy." He referred to 3rd edition of Principles of Statutory Interpretation by Justice G.P. Singh at pages 335, 336 and 337, Shri G. Ramaswami again referred to Notification No. 125/86-Cus., dated 17th February, 1986 and referred to Serial Nos. 1 and 6 of the said notification and the description at Serial No. 1 is - "1. Food processing machines namely :- Fruit and vegetable cutting, coring, cubing, slicing, seeding clearing, removing and stem removing machines" and he also referred to Serial No. 6 which reads as: "6. Meat processing machi....
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....iness would be directly brought into charge by virtue of the provisions in the subsequent Act." Shri Ramaswami pleaded that on simple common sense the word "and" is to be read as "or" for Serial No. 17. Shri Ramaswami also referred to the following judgments :- 1. 1989 (1) SCC 255 at page 263 - Koteswar Vittal Kamath v. K. Rangappa Baliga & Co. 2. AIR 1968 SC 1450 - Ishwar Singh Bindra and Ors. v. State of U.P. 3. AIR 1986 SC 1162 - M. Satyanarayana v. The State of Karnataka and Anr. 4. 1921 (2) K.B. 403 - Cape-Brandy Syndicate v. Inland Revenue Commissioner. 5. 1984 (2) SCC 183 at 224 - Padmakar Balkrishna Samant v. Abdul Rehman Antulay and Anr. 6. AIR 1964 SC 1230 - R.L. Arora v. State of Uttar Pradesh and Ors. 7. AIR 1965 Kerala 96 - The Food Inspector, Trichur Municipality, Trichur v. O.D.Paul and Anr. 8. AIR 1969 Madhya Pradesh 147 - Municipal Council, Raipur v. Bishandas Nathumal. 9. AIR 1970 Andhra Pradesh 293 - In re: Salem Govindappa Chetty. 10. AIR 1977 Allahabad 310- Dinesh Chandra Srivastava and Ors. v. The State of U.P. 11. AIR 1963 SC 1638 - Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and Ors. and vice-v....
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....t the word "or" cannot be read as "and". Shri Arora argued that the subsequent notification cannot grant exemption to the appellants. In support of his argument, he has referred to a judgment of the Supreme Court in the case of Cannanore Spinning and Weaving Mills Ltd. v. Collector of Customs and Central Excise, Cochin and Ors. reported in 1978 (2) ELT J 375 and laid emphasis On Para No. 6 where the Hon'ble Supreme Court had held that the rule making authority has not been vested with the power under the Central Excises and Salt Act to make rules with retrospective effect. The retrospective effect if proposed to be given in any notification will be beyond the powers of the rule making authority. He also referred to another judgment of the Tribunal in the case of Cosmic Dye Chem, Palghar v. Collector of Central Excise, Bombay reported in 1984 (18) ELT 6 where the Tribunal has observed that : "Since in construction of taxing statutes, it is impermissible to gather the intent of one provision even if ambiguous,, by reference to a subsequently enacted provision unless the later of the two amounted to a retrospective declaration as to the meaning and intent ....
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....84 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India, from - (a) so much of that portion of the duty of customs leviable thereon which is specified in the said First Schedule as is in excess of the amount calculated at the rate of 10% ad valorem; and (b) the whole of the additional duty leviable thereon under Section 3 of the said Customs Tariff Act. Relevant extract of Notification No. 65/89-Customs, dated 1st March, 1989 is reproduced below :- GSR(E) 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 directs that each of the notifications of the Government of India in the Ministry of Finance (Department of Revenue), specified in column (2) of the Table hereto annexed, shall be further amended in the manner specified in the corresponding entry in column (3) of the said Table. A simple perusal of the Notification No. 125/86-Cus., dated 17th February, 1986 Serial No. 17 shows that the benefit is available to a machine FFS with vacuumising and inert gas flushing. We have perused th....
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....addition to that which proceeds and its use implies that the connected elements must be grammatically co-ordinate, as where the elements preceding and succeeding the use of the words refer to the same subject-matter. While it is said that there is no exact synonym of the word in English, it has been defined to mean "along with", "also", "and also", "as well as", "besides", "together with". Oliver v. Oliver, 286 Ky. 6, 149 S.W. 2d 540, 542. When expression "and/or" is used, that word may be taken as will best effect the purpose of the parties as gathered from the contract taken as a whole, or, in other words, as will best accord with the equity of the situation. Bobrow v. U.S. Casualty Co., 231 A.D. 91, 246 N.Y.S. 363, 367." Maxwell on the Interpretation of Statutes, 12th edition by P. St. J. Langan published by N.M. Tripathi Pvt. Ltd. at pages 232 to 233 has held as under :- " "And" and "or" In ordinary usage, "and" is conjunctive [(1967) 1 A.C. 192] and "or" disjunctive. (J.W. Dwyer Ltd. v. Met. Pol. Receiver - (1967) 2 Q.B. 970. But to carry out the inten....
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....Conjunctive and Disjunctive Words 'OR' and 'AND'. The word 'or' is normally disjunctive and 'and' is normally conjunctive but at times they are read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the context. [Ishwar Singh Bindra v. State of U.P. - AIR 1968 SC 360, p. 363 : (1980) 1 SCC 158; R.S. Nayak v. A.R. Antulay - (1984) 2 SCC 183, pp. 224, 225 : AIR 1984 SC 684; M. Satyanarayana v. State of Karnataka - (1986) 2 SCC 512, p 515 : AIR 1986 SC 1162]. As stated by SCRUTTON, L.J.: "You do sometimes read 'or' as 'and' in a statute. But you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. [Green v. Premier Glynrhonwy State Co. - (1928) 1 KB 561, p. 568; Nasiruddin v. State Transport Appellate Tribunal - AIR 1976 SC 331, p. 338 : (1975) 2 SCC 671; Municipal Corporation of Delhi v. Tek Chand Bhatia, supra; State (Delhi Administration) v. Puran Mal - (1985) 2 SCC 589 : AIR 1985 SC 741. And as pointed out by LORD HALSBURY the reading of 'or' as 'and' is not to be resorte....
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....#39; are read in the alternative but negative conditions connected by 'or' are construed as cumulative and 'or' is read as 'nor' or 'and'." In the case of R. v. Oakes reported in (1959) 2 All ER 92 it was held as under : "In Section 7 of the Official Secrets Act, 1920, which reads : 'Any person who attempts to commit any offence under the principal Act or this Act, or solicits or incites or endeavours to persuade another person to commit an offence, or aids or abets and does any act preparatory to the commission of an offence', the word 'and' printed in Italics was read as 'or' for by reading 'and' as 'and' the result produced was unintelligible and absurd and against the clear intention of the Legislature." (Extract taken from Principles of Statutory Interpretation by Justice G.P. Singh page 252). Hon'ble Supreme Court in the case of Ishwar Singh Bindra and Ors. v. State of U.P. reported in AIR 1968 SC 1450 at page 1454 in para 11 had held as under :- "Now if the expression "substances" is to be taken to mean something other than "medicine" as has been held in ....
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....rd "and" has to be substituted by "or" :- (1) The Food Inspector, Trichur Municipality, Trichur v. O.D. Paul and Anr. - AIR 1965 Kerala 96 (2) Municipal Council, Raipur v. Bishandas Nathwnal -AIR 1969 M.P. 147 (3) In re : Salem Govindappa Chetty - AIR 1970 Andhra Pradesh 293 (4) Dinesh Chandra Srivastava and Ors. v. The State of U.P. - AIR 1977 Allahabad 310 This Tribunal had an occasion to deal with the interpretation of exemption notification in the case of Collector of Customs v. Delhi Tubes Pvt. Ltd. reported in 1990 (49) ELT 243 (Tribunal). Paras No. 15 and 25 from the said judgment are reproduced below :- "15. Hon'ble Calcutta High Court in the case of the Bengal National Textile Ltd. v. C.T.A. Pillai, Jt. Secretary and Ors. reported in 1979 (4) ELT J 664 had held that "it is well settled that the provisions of a statute or legislation should be construed in the context and the interpretation should not be confined only to its grammatical meaning. If there is any ambiguity in the expression used in the statute, it should be resolved in favour of the assessee or the tax-payer. It is not the technical meaning that should be adhered t....
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....quot;object of the exemption notification is to confer a certain benefit upon the manufacturer or the buyer/consumer as the case may be, as an incentive, with a view to encourage production or consumption. But, it cannot be said that this would virtually amount to adding a part of the excise duty to the manufacturing cost and profits while arriving at the assessable value under Section 4 of the Central Excise Act." "25. It is also a well-settled proposition that where a term is not defined in a statute, the meaning given to that term by the people generally dealing with such a statute should be applied. The department has not adduced any evidence as to what is meant by the expression 'semi-finished' in relation to a 'flat-rolled product, hot-rolled' in coil form. The respondent, on the other hand, relies on a certificate of well-known firm of Consulting Engineers M.N. Dastur & Co. Credibility of this certificate is sought to be struck at by the department on that no sample was sent to M.N. Dastur & Co. This, in our view, is not a good-ground when the description of the product, namely, 'unpickled, with mill edges, fish tail and unskin passed' is ....
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....ction which does not involve the infringement of any fundamental rights, that construction must be preferred though it may reasonably be possible to adopt another construction which leads to the infringement of the said fundamental rights. If the impugned provisions are reasonably not capable of the construction which would save its validity, that of course is another matter; but if two constructions are reasonably possible, then it is necessary that the Courts should adopt that construction which upholds the validity of the Act rather than the one which affects its validity. Bearing this rule of construction in mind, we must examine the five sections to which we have just referred. Section 3 no doubt provides for the vesting of the temple property and all its endowments including offerings in the deity of Shrinathji, and that clearly is unexceptionable. If the temple is a public temple, under Hindu Law the idol of Shrinathji is a juridical person and so, the ownership of the temple and all its endowments including offerings made before the idol constitute the property of the idol. Having thus stated what is the true legal position about the ownership of the temple and the endowmen....
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....of the assessee should be accepted :- 1. Commissioner of Income-tax, West Bengal v. Vegetable Products Ltd. - (1973) 88 ITR 192 2. Commissioner of Income-tax, West Bengal v. Naga Hills Tea Co. Ltd. -(1973) 89 ITR 236 3. Controller of Estate Duty v. R. Kanakasabai and Ors. - (1973) 89 ITR 251 In the following decisions the various courts had held that where a literal construction would defeat the obvious intention of the legislation and produce a wholly unreasonable result, the courts must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. 1. Commissioner of Income-tax, Central Calcutta v. National Taj Traders - (1980) 121 ITR 535 2. K.P. Varghese v. ITO, Eranakulam and Anr. - (1981) 131 ITR 597 3. Commissioner of Income-tax, Bangalore v. J.H. Golta - (1985) 156 ITR 323 at page 339 in which it was held as under :- "Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a ration....
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....s, therefore, not considered necessary by him to import the accessory of vacuumising system. The vacuumising system is absolutely unsuitable for packing potato chips inasmuch as the vacuumising system would have made both the sides of the package stick together and thus, breaking the potato chips due to outside pressure. It could also never be the intention, as rightly pointed out by the appellant's learned Advocate that the Government would have insisted for import of an accessory, if it is not needed by an actual user on account of his peculiar product range and thus, allowed the foreign exchange to go waste. I find considerable force in the aforesaid plea of the appellant's learned Counsel. This plea is further fortified by the subsequent amendment No. 125/86, dated 17th February, 1986 by Notification No. 65/89-Customs, dated 1st March, 1989, allowing concessional rate of duty when FFS machine is imported either with vacuumising accessory or inert gas flushing accessory or with both the accessories. 10. If we look at the problem in a slightly different manner accepting for a moment the Department's contention that both the accessories must be imported with FFS machi....