TaxTMI 
TaxTMI 
1982 (10) TMI 41
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....ct, 1975 or any other law for the time being in force for the goods imported or exported. Section 2 of the Tariff Act lays down that the rates at which duty of customs shall be levied under the Customs Act, 1962 are specified in the First and Second Schedules. The Schedule is broadly based on the Brussels Tariff Nomenclature. The statutory rates of duty shown in the First Schedule have to be read with exemption notifications issued under the Customs Act, 1962 giving effect to the temporary duty reductions in respect of particular articles. Section 25 of the Customs Act empowers the Central Government if it is satisfied that it is necessary in the public interest so to do... to exempt generally either absolutely or subject to such conditions as may be specified in the notification, goods of any specified description from the whole or any part of the Customs duty leviable thereon. 4. Headings 74.01/02 in the First Schedule to the  Tariff Act reads as follows :- Heading Nos. Sub-heading Rate of duty 74.01/02 Copper matte unwrought copper (refined or not); copper waste and scrap; master alloys. (a) 100% In exercise of the powers conferred by Section 25 of the Cust....
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....per cent by weight of copper. (1) In any crude form including ingots, bars, blocks, slabs, billets, shots and pellets. One thousand and five hundred rupees per metric tonne. (1a) Wire bars, wire rods and castings, not otherwise specified. (2) Manufactures the following, namely- plates, sheets, circles, strips and foils in any form or size. Two thousand rupees per metric tonne. (3) Pipes and tubes. Ten per cent ad valorem. 7. By Section 48 of the Finance Act, 1981, the  Schedule to the Excise Act has been amended and a sub-item (1b) and Explanation II has been included as follows : (1b) Waste and scrap. Explanation I - "Copper" shall include any alloy in which copper pre-dominates by weight over each of the other metals. Explanation II - "Waste and scrap" means waste and scrap of copper fit only for the recovery of metal or for use in the manufacture of chemicals, but does not include slag, dross, scalings, ash and other spurious residues. The amendment above provides for an excise duty of Rs. 5,600/- per M.T. However, by virtue of notification No. 32 of 1981, dated 1-3-1981 the exemption has been given for payment of duty not exceeding Rs. 3,000/- per M....
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....0 which deals with imported items under OGL mentions aluminium scrap at item Nos. 19, 20, 21, 22 and 24 respectively. In order to be able to import any article it is apparent that the same must fall within some Customs Tariff entry. Petitioners themselves treat the goods imported by them as brass scrap and have even described it in Bill of entry at S. No. 44 as falling within item 44 appendix 10 of 1980-81 Import Policy under OGL, which entry is of brass scrap. Reference may also be made to the Bill of entry in C.W. 2034/1982 where the import is described as under OGL, appendix 10 of 1981-82 policy, item No. 25 which is of brass scrap. Evidently unless the petitioners admitted that the goods imported by them have come under OGL, they may run into difficulty with the Customs authorities. That is why the petitioners did not raise any dispute with the Customs that their goods were not covered under Tariff Headings 74.01/02, and for very good reason because the claim of the petitioners to take the benefit of exemption notification 97, dated 25-6-1977 is dependent upon their articles falling within the headings 74.01/02 even in respect of the notification. The effort, therefore, to cont....
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.... be a metal. The term is usually reserved for those cases where there is an international addition to a metal for the purpose of improving certain properties. Though pure metals may possess certain useful properties, they seldom possess the strength required for industrial application. Copper is practically the only metal used in bulk in the commercially pure state. In the case of most metals alloying elements are added to increase the hardness, strength, and toughness of the basic metals and to obtain properties which are not found in any of those metals; (vide `A Dictionary of Metallurgy' by A.D. Merriman; Page 5). (aa) The commercial utility of alloys arises from the fact that the pure metals are often too soft, weak, or rare to be used alone. Thus, copper, a soft metal, when alloyed with the brittle metal zinc, forms a strong, hard alloy, brass, that has wide usage, (vide 'Materials Handbook' by George S. Brady, page 25). (b) PREPARATION OF ALLOY : The most common way of preparing alloys is by the melting together of the constituent metals. If the melting points of the metals differ widely, or if one is relatively very inactive, it may be convenient to prepare first a master ....
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....oy is totally different. As explained in Brussels Nomenclature they are used either to introduce into brass, bronze or aluminium bronze other elements with a higher melting point than those alloys... ... ...or to facilitate the preparation of certain alloys. Master alloy in a sense is a device to introduce certain elements into the foundry or other alloy. Master alloy is in fact used as a raw material in the manufacture of other alloys, but brass is itself an alloy, a complete product. Thus brass scrap which is an alloy by itself and is not to be used as a raw material cannot be considered to be Master Alloy. The attempt, therefore, of the petitioners to go against their own pleadings that goods imported were Brass Scrap must fail both on the ground of estoppel as well as on merit. Now it will be seen that Headings 74.01/02 mentions 4 items (a) copper matte (b) unwrought copper (c) copper waste and scrap; and (d) Master Alloy. If as we have held what the petitioners import cannot be called Master alloy, they obviously cannot take the benefit of Notification No. 97, dated 25-6-1977, which exempted articles other than copper waste/scrap falling under Heading Nos. 74.01/02. It is tr....
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....loy and by virtue of rule 4 the copper is the base metal mentioned in the Schedule is to include and have reference to a copper alloy. Rule 5(b) provides about the classification of composite articles and lays down that for this purpose an alloy is regarded as being entirely composed of that metal as an alloy of which by virtue of note 3 it is classified. Thus by virtue of combined Rules 3, 4, 5 and section 15 Brass scrap, an alloy, will be classified as entirely composed of copper. The result being that brass scrap, though not specifically mentioned in heading No. 74.01/02 will be deemed to be included and treated as copper waste and scrap for the purpose of classification under this heading. The notification No. 97 of 25-6-1977 exempted articles other than copper waste and scrap, and as Brass Scrap is to be treated as copper waste, the petitioners cannot avail of the benefit of this notification. Much emphasis was laid by the counsel for the petitioners to urge that scrap and copper scrap are two commercially different goods known to the market. Reference was made to certificates from some of the Merchant's Associations, the Bombay Metal Exchange Limited and.extracts from Indian ....
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....ied for classification purposes in all circumstances or none at all. If Section 15 is not resorted to Brass Scrap would not fall within Heading 74.01/02 and exemption notification of 25-6-1977 which presupposes an imported article to be covered by Heading 74.01/02 would not be available. But as we have said before there is no justification not to apply rules in Section 15, and so, applying, Brass Scrap would be deemed to be copper scrap and will have the benefit of exemption notification of 16-7-1977 which specifically deals with item of copper waste and scrap. That is why the advise in July, 1981 of the Board was the correct one. 16. One of the arguments raised was that exemption is granted under Section 25 of the Customs Act and therefore, in order to interpret the scope of exemption reference to the notes in Section 15 of the First Schedule to Tariff Act was not permissible as they related to a different Act than the Customs Act. The contention is without any substance. Customs Act and Customs Tariff Act form a composite legislation and the one cannot be effectuated without having resort to the other. Thus Section 12 which is the charging Section itself provides that duties of ....
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....t be read along with Chapter Notes in the Tariff Act. 17. In our opinion the charging Section 12 of the  Customs Act only provides that duties of customs shall be levied at rates as may be specified in the Customs Tariff Act. The computation of the duty is provided by Section 2 of the Tariff Act read with Schedule. The Customs Act remains incomplete without the Tariff Act. Charging Section in Customs Act provides no computation of duty. For computation of duty you have to go to the Tariff Act. It is as if both the provisions are provided in one Act. There can be no question of splitting them up. They are one integrated whole. Thus the charging section and the computation provisions together constitute an integrated code and as explained in C.I.T. v. B.C. Srinivasa Setty (1981) 128 I.T.R. 294, where the charging Section of the Income tax Act and the computation Section were said to constitute an integrated code and it was explained that a transaction to which these provisions apply cannot be understood without making a reference to the other. We would, therefore, hold that the demand by the respondents of duty of customs at 80% is not only permissible but is valid. The conten....
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....ring for the respondents also did not dispute that unless Brass Scrap was held to be excisable goods under Section 2(d) of the Excise Act, additional duty under Section 3 of the Tariff Act will not be leviable. Now so far as the item 26A(1b) of Schedule to the Excise Act is concerned Brass Scrap is admittedly included. This is because by virtue of Explanation II item 'waste and scrap' means waste, scrap of copper fit for the recovery of metal. Explanation I further says that copper shall include any alloy in which copper predominates by weight over each of other metals. Brass, as mentioned above, is an alloy of copper (about 60%) and zinc. Thus apart from the argument of constitutionality, 'Brass scrap' would be included within item 26A(1b) and would be excisable goods, and automatically additional duty of customs would be payable on the import of Brass Scrap. That is why the main contention of the petitioners was that Brass Scrap is not obtained by any manufacturing process and, therefore, could not have been included at sub-item (1b) in item 26A in the Excise Act because entry 84 of the List I of the 7th Schedule of the Constitution only permits the Parliament to impose levy of d....
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....of goods within the customs barrier or their export outside the customs barrier. They are also indirect taxes like excise." Vide In re : Sea Customs Act (AIR 1963 SC 1760 para 26). "In order to levy excise duty the levy must be upon goods and the taxable event must be the manufacture or production of goods." Vide Shinde Bros. v. Dy. Commissioner, Raicher, (A.I.R. 1967 SC 1512). "It is no doubt true that levy of excise has to be linked with production or manufacture of the imposable item -" Vide A.B. Abdul Kadir v. State of Kerala; (A.I.R. 1976 SC 182). "It being thus settled that the excise duty is leviable on the manufacture or production of goods question arises as to what exactly is meant by "manufacture". In our opinion it is unnecessary to burden the judgment with various definitions from other courts because our Supreme Court has broadly defined- "What manufacture is" in Union of India and another v. Delhi Cloth & Gen. Mills. Co. Ltd. (A.I.R. 1963 SC 791) = 1977 E.L.T. (J 199). The Supreme Court had accepted the meaning of manufacture given in permanent edition of "Words and Phrases" Vol. 26, from an American Judgment which is as follows :- "Manufacture implies a change bu....
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....or dross from the definition of waste and scrap. Argument of the Counsel for the petitioners lay emphasis on the colloquial and routine meaning of waste/scrap, which no doubt conjures up something as dirt or incidental to the manufacture. But this plea omits to appreciate the significance of the explanation which encompasses only that waste/scrap which is fit only for the recovery of metal or chemical. Thus the waste/scrap under the Excise and Tariff Act means an article which has a potentiality of allowing another article like metal or chemical to be recovered. This misapprehension was the reason for Dr. Singhvi to urge that the Bombay Judgment in Indian Aluminium Co. Ltd. & another v. A.K. Bandyopadhyaya and others - 1980 E.L.T. 146, fully covers the present case. We cannot agree. In that case the company carried on the business of manufacturing aluminium sheets which it prepared from aluminium ingots. At the very first processing dross and skimming arise and accumulate in the furnace in the shape of ashes. As the aluminium ingots were used in the manufacture of aluminium sheets and since duty was already paid in respect of aluminium ingots the company was allowed credit of duty ....
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....o the excise authorities. This authority thus does not carry the matter any further. In M/s. Perry Confectionery Ltd., Madras v. Government of India and others [1980 E.L.T. 468 (Mad.)]; it was held that the lozenges are not included in the word 'Candy' which was sub-heading in item 1A(1) of confectionery. Reason was that to come within 'Candy' it had to be one in the manufacture of which the process of boiling and cooking are also involved, but as in the process of manufacture of lozenges boiling and cooking are not done necessarily lozenges could not be included in the item 'Candy'. 23. Reference was also made to Dy. Commr. Sales Tax, Ernakulam v. Pio Food Packers (A.I.R. 1980 SC 1227) = 1980 E.L.T. 343 wherein all that was held was that where pine-apple fruit was processed into the pine-apple slices for the purpose of being sold in sealed cans there is no consumption of the original pine-apple fruit for the purpose of manufacture. Though there may be some processing the commodity continues to possess its original identity. Chowgule & Co. Pvt. Ltd. v. Union of India (A.I.R. 1981 SC 1014) again was a case where all that was held was that "the blending of different qualities of ore....
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....de a different article, and it must follow that thus goods were manufactured. 24. Now in the present case Brass is an alloy of copper and zinc. The mixing of these two metals produces a distinct commercial commodity - Brass Waste/scrap is that from which metal can be recovered evidently showing that Brass Scrap is different and distinct commodity from the metal or chemical that is to be recovered. Brass is not the original metal. It is something different which has been brought about by a mixture of other metals, a process which cannot be anything but manufacture. 25. We feel we must dispel one misconception which seems to colour the main argument of the petitioner namely - as if it is the final or last product which alone can be considered to involve process of manufacture. The suggestion being that till raw material is converted into the last product, there is no manufacture even if in the intermediate stage a distinct product known to the commercial world comes into existence. We cannot agree. The precise contention was specifically negatived in Delhi Cloth & General Mills case (supra). In that case the company were manufacturing products known as vanaspati. For that purpose t....
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....xide as is known to the trade and, therefore, cannot attract excise. This authority also, therefore, accepts the view that if a new substance is brought into existence from raw materials earlier to the manufacture of the end product it would also be liable to pay excise duty. The broad argument of the petitioners, therefore, that it is only the ultimate product like the brass tops or the regular brass tubes or other brass products including sanitary fittings which alone are excisable has no principle or authority to support it. So what has to be determined is whether Brass Scrap is obtained by the process of manufacture. If so, it was rightly incorporated as a sub-item in Schedule to the Excise Act by the Finance Act, 1981. It would be no argument to say that even though obtaining Brass Scrap involves manufacture, it cannot be excisable because it is not the end product. The argument of the counsel for the petitioners proceeds on the untenable assumption of confusing Tariff item waste/scrap as being equivalent to and nothing else but what waste/scrap as may be understood in colloquial terms as meaning a thing which is useless, rotten and scum. But this is not how it is understood i....
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....e bring into existence brass scrap. This would show brass scrap is a new product obtained by mixing of various metals involving manufacture. Had brass scrap not been a commercially known commodity in the sense that it can be bought and sold, it might have been open to argument that brass scrap, even if obtained in the process of manufacturing fine products cannot be considered goods and thus no manufacture is involved, but admittedly that is not the position here because the brass scrap is understood in the common trade parlance and is accepted as a commodity which can be bought and sold. 28. Scrap which is an excisable item is that manufacture which arises when a manufacturer producing an article finds that it has not turned out to be of the quality and type which could be sold to as a fully finished product. It may be that in trying to make some castings, there may be left some air bubbles or holes in the finished product. Now since it is not a finally finished product it will not fetch that price which a quality product can command. But from that it does not follow that what has come out is not a new article which is known to the market. This situation may arise because of lack....
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....asis that at the stage when billets were rolled into circles the process of manufacturing circles was complete and these circles became liable to excise duty under item 26A(2). Thus excise could be imposed on billets when they were converted into circles. If billets which is a semi-finished metal product by rectangular shape with rounded corners produced by rolling, ingots, (vide page 18 of Merriman) when rolled into uncut circles is considered as involving the manufacturing process, it is impossible to accept that the present case where brass which comes into existence by making of alloy of two different metals of copper and zinc and brass scrap which only comes into existence when manufacturing some end product of brass will not pass the test of manufacture. That Brass Scrap is a different article from the constituent of copper, zinc which are mixed to form brass was not even disputed by the petitioners. The argument that Brass scrap was not goods is equally without substance and stands negatived by their own documents which clearly show that imported articles are being described as brass scrap. 30. A reference to Import Policy of April, 1981, - March 1982 (Appendix 10) eshows t....
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....a sale would be ultra vires (Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash (A.I.R. 1954 SC 459), where a tax on agreement to sell was held to be not authorised by the court. Similarly in Madras State v. Dumarley & Co. (A.I.R. 1958 SC 560) a tax on supply of materials in a contract for the construction of work simplicitor on the footing of treating it as a sale was held to be outside the Entry 54 (List II, 7th Schedule of Constitution) dealing with tax on sale or purchase of goods ... and hence ultra vires. 32. The rationale of this view was explained in New India Sugar Mills v. Commr. Sales Tax (A.I.R. 1963 SC 1207). In that case the despatch of sugar to the province of Madras from the factories in Bihar were made liable to be included in the taxable turnover under the Bihar Sales Tax Act. The argument by the assessee was that the transaction by which despatches of sugar were made in pursuance of the direction of the Controller was not the result of any contract of sale as they were not sale as understood under the Sale of Goods Act. The majority held that "as the sale has to be interpreted within the rigid meaning given to it under the Sale of Goods Act the despatches i....
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....ce to the meaning given to the word 'sale' under the Sale of Goods Act, that is why any extended definition of the word 'sale' was held to be ultra vires of the Act. The position however is not the same so far as the Parliament is concerned. The powers of State Legislature cannot for obvious reasons be of the same amplitude as that of Parliament by virtue of Entry 97, List I, which is residuary entry empowering Parliament to legislate on any topic not specifically prohibited. Thus Parliament is not confined to any particular definition of manufacture and could prima facie possibly give an extended meaning to the word manufacture. We however need not go so far because Mr. Solicitor did not bar an enquiry by the court to determine whether the item included in Excise Tariff comes into existence by a process of manufacture or not. We must however say that though an enquiry by the court may be permissible, we cannot ignore the fact that Parliament having included the Entry in Excise Act, it will clearly raise a presumption even if assailable one that the item so included come into existence by process of manufacture and that normally the courts would be referred reluctant to say that th....
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....llets were already subjected to excise duty, it is obvious that the process, by which the billets were converted into circles, was held by the legislature to amount to manufacture". The main emphasis was that as the Parliament itself had provided for imposition of excise duty it was futile to urge that the process to obtain the end product was not manufacture. 36. As a result we would hold that clause 1(b) of the Tariff Item 26A of the Schedule to the Central Excises & Salt Act, 1944 as introduced by clause (v) of the 3rd Schedule read with Section 48 of the Finance Act, 1981, is intra vires and constitutional. On the finding above that excise duty is validly leviable on brass scrap, it would naturally follow that the petitioners would be automatically liable to pay additional duty of customs under Section 3 of Tariff Act. The counsel for the petitioners however strongly urged an alternative contention as to why, notwithstanding the finding of the validity about the entry in the Excise Act, they are still not liable to pay additional duty under Tariff Act, 1975. This argument is based on the petitioners case that though they import brass scrap, the said scrap does not consist of s....
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....ariff. 38. It is well settled that for liability under Section 3 of Tariff Act it is not even necessary that like articles are actually being manufactured in India. It is enough, as explanation to Section 3 makes clear that if like articles are not produced or manufactured in India which would be leviable on the class or description of the articles to which the imported article belongs. 39. Now in the present case the petitioners are importing brass scrap which is an excisable goods. Even if the brass scrap was not being manufactured in India they would be liable to pay additional duty of customs under Section 3 of the Tariff Act. In this context it is not even necessary to find out whether the brass scrap as such is being manufactured in India or not. Thus the enquiry to determine leviability under the Tariff Act does not encompass the determination whether the brass scrap consignment imported has been obtained during manufacturing process. The only matter that the customs authorities have to satisfy themselves is that when the consignment of a petitioner comes into the Port whether a like article i.e. Brass Scrap is subject to excise duty, and on finding in the affirmative addi....
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.... duty. Here the exemption is subject to the condition that the copper which is manufactured should be used in the factory of the production i.e. to say that if the same factory produced and manufactured copper and waste and then uses the same scrap within the factory of production no excise duty will be payable. This is done to avoid paying twice over the excise duty, once on copper scrap and again on the manufactured product obtained from use of copper scrap. This avoidance of paying duty twice over also explains another notification No. 33, dated 1-8-1981 by which the Central Government has exempted waste and scrap of copper from the payment of whole of the duty of excise leviable subject to the condition that such waste and scrap are manufactured from copper falling under item 26A on which appropriate amount of duty of excise.... has already been paid. The purpose of the notification is different and the petitioners cannot take any advantage from it. Point No. 4 : Has this court jurisdiction to entertain the petition ? 41. One of the preliminary objections raised to the competency of the present petitions was that this Court had no territorial jurisdiction to entertain the pet....
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....-judicial power sometimes gets lost and blurred. The authorities no doubt justify this course of giving advice by pointing "out that this leads to uniformity and sometimes even the parties themselves invite such advice. But then the advice coming from the Board which also was an appellate authority cannot be countenanced. Fortunately now the appellate and the revisionary powers of the Board and the Central Government have been entrusted to the Customs Excise, Gold (Control) Appellate Tribunal which is analogous to that of an income tax tribunal. Thus the administrative and quasi-judicial functions at the highest have been separated. Thus even if now advice is given by the Board, it would have no effect because the Tribunal, the being the highest quasi-judicial authority could ignore Board's circulars and the argument of not availing the alternative remedy of revision before the Tribunal, on this ground would no longer have any efficiency. But with all the objectionable features these directions have no relevance to the question of jurisdiction, for as emphasised in Rama Devi v. R.A. Gafoor & Ors. (I.L.R. 1976 (1) Delhi 72 at 80) wherein it was said that "Objections, if any, issued ....
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.... by the Central Government, and, therefore, this court had territorial jurisdiction. It will be seen that though formally a notice was issued by the Assistant Collector of Customs, Pune, the finding was that this was in pursuance of the direction from Delhi by the Central Government. In fact, therefore, the challenge was to the action and direction taken by the authorities in Delhi. This case is clearly distinguishable. 42. The next argument to confer territorial jurisdiction on this Court was on the ground that as the vires of some of the provisions of the Finance Act, 1981 have been challenged the Central Government would be a necessary party and as the Central Government has its seat in Delhi this court would have jurisdiction. This very argument that because vires of a Central Act challenged the Central Government is a necessary party was raised in Shiv Shankar Lal v. I.T. Commissioner, Bombay (AIR 1968 Del. 295) but was rejected. The Bench held that there is no foundation for the view that because vires has been challenged the Central Government has to be impleaded as a party. The Bench, held that the writ petition was incompetently filed even though Section 132(5) of the Inc....
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....'s crust. It is never found native, but all clays contain aluminium silicate, usually in association with the silicates of iron, calcium and magnesium. The extraction of aluminium from clay, however, is not at present an economic proposition and the most important source of aluminium is bauxite" .....Even the highest grades of bauxite contain appreciable impurities chiefly oxides of iron and titanium, and must the purified before the metal is extracted. The ore is mixed with caustic soda solution and heated in pressure chambers so that aluminium may form the soluble compound Sodium aluminate. This is separated from the insoluble residues by filtration. Aluminium hydroxide is then precipitated from the solution and heated at a temperature of 1,500oC to obtain practically pure alumina. This latter is then dissolved in molten cryolite (3 Na F. Alf 3) and reduced to aluminium by electrolysis"(vide merriman page 7), it will thus be seen that aluminium scrap is not a refuse or throw away as is sought to be suggested by the counsel for the petitioners, Mr. Rangaswamy. For the same reasons which have persuaded us to hold that brass scrap involves an element of manufacture, it must also be ....
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....he petitioner to tell us as to when the said ship containing the petitioners consignment entered the territorial waters, but he expressed his inability to do so. Counsel asked us to proceed on the basis that though the ship containing the petitioner's consignment must have entered the territorial waters of India subsequent to 31-3-1981 and also that the bill of entry in respect of such goods also would have been presented subsequent to 31-3-1981 but yet asked us to hold that the petitioners are entitled to the benefit of exemption notification which were not extended beyond 31-3-1981. We cannot agree. The counsel for the petitioners realised the unusualness of the stand and that is why he put forth the extreme argument that notwithstanding withdrawal of the exemption notification the petitioner has a vested right to get the benefit of this exemption notification simply because he entered into a contract for the import of the goods earlier to 31-3-1981, and seeks to plead promissory estoppel in this regard and relies on (A.I.R. 1969 SC 718) Union of India v. Anglo African Agencies. In that case under an Export Promotion Scheme an exporter who exported goods was entitled to import en....
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....me other authority. But the exercise of that power, whether by the legislature, or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. These observations aptly apply to the present case. We must dispel the oft repeated suggestion as if there is any estoppel against the Government or the legislature to change the rate of duty of Customs or Excise during the course of a financial year. We had occasion to dilate on this aspect in C.W. 2131/1982 decided on 23-9-1982 and need not repeat it. We will only content ourselves by adopting a few observations. "The whole stress of this argument seems to be as if during the financial year, the rate of duty of excise or customs or the list of goods which can be imported or exported as indicated either in the Import Policy or in the Schedule is immutable and that it is not permissible for the Government or the legislature t....