TaxTMI 
TaxTMI 
1989 (9) TMI 103
X X X X Extracts X X X X
X X X X Extracts X X X X
....rms of a notification of exemption issued under Section 25(1) of the CA. Under Notification No. 228/76, dated 2-3-1976, an exemption from the customs duty payable under Section 3 of the CTA was granted in respect of "articles made of plastics, all sorts, but excluding those specified in the table annexed hereto and falling within Chapter 39 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975)". The annexed table excepted the following items from the purview of the exemption : "Tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible including tubings and polyvinyl chloride sheets." Notification No. 443 dated 29-11-1976 omitted the words of Notification No. 228 which have been underlined above but left the main notification otherwise untouched. 3.The assessee's claim for refund was accepted by the Tribunal. The Tribunal held that the goods imported by the respondent were articles made of plastics. But they were `films' and not one of the categories of articles enumerated in the table. In reaching its conclusion, the Tribunal followed the decisions, of the Madras High Court in Precise Impex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....les thereof is leviable under Section 3 read with Chapter 39, containing heading Nos. 39.01/06 and 39.01/07 in Section VII of the First Schedule to the CTA. This aspect found a reference in the original Notification No. 228 but was omitted, apparently as being redundant, by the amendment of 29-11-1976. In Note 3 at the commencement of the said Chapter 39, clause (c) talks of "seamless tubes, roads, sticks and profile shapes while clause (d) refers to "plates, sheets, films, foils and strips". This indicates that plates, sheets, films, foils, etc. are categories of plastic articles distinct from one another. Notification No. 228 contains a reference to the Tariff(2) Schedule under the Central Excises and Salt Act, 1944 (CESA). The CESA, read with Item 15A of its First Schedule, provides for the levy of an ad valorem duty of excise on all "artificial or synthetic resins and plastic materials and cellulose esters and ethers and articles thereof" described in greater detail in sub-items (1) to (4) thereunder. Of these, sub-item (2) reads : Articles made of(2) plastics all sorts, including tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether lamin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1971, also of the same date, grants limited exemption, subject to certain conditions to rigid plastic boards, sheeting, sheets and films, whether laminated or not, other than those manufactured from polyvinyl chloride. Notification No. 72 of 1971 of the same date limits the excise duty in respect of flexible polyvinyl chloride sheeting, sheets, films and lay-flat tubings, not containing any textile material and falling under sub-item (2) of Item No. 15A to 25 per cent (amended later to 30%) ad valorem, subject to certain conditions. Notification No. 39 of 1973 dated 1-3-1973, exempts rigid and flexible polyvinyl chloride films of thickness below 0.25 mm as well as polyvinyl chloride lay-flat tubings in certain circumstances. By Notification No. 151 of 1975 dated 31-5-1975 exemption was granted in respect of cellulose tri-acetate, when intended for use in the manufacture of cine-films, X-ray films or photographic films. Item 15B talks of "film or sheet" of cellulose and a notification of 1981 specifically added Item 15BB to the Tariff under CESA dealing with polyester films as a separate item, though this entry was subsequently omitted by the Finance Act of 1982. All these indicate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly mentioned in the entry in question, the imported goods, at least to the extent indicated above, cannot be qualify for exemption. 7.The answer given by the Bombay High Court to the contention that the goods were `foils' was that while it may be that, technically and scientifically speaking, the articles in question may be capable of being characterised as `foils', one is concerned in a customs or excise matter not so much with the technical or scientific definitions of these terms but rather with commercial usage. One has to see how the trade understands the expression "films" and one should also bear in mind in this connection that the expressions set out in the table are applicable not merely to the articles with which we are at present concerned but also to various other types of articles of plastics with varied commercial use. The question is whether the trade understands the article presently in question as a `film' or whether there is a distinction in trade usage also between `foils' and `films'. It has been pointed out by the Bombay High Court, on the basis of the evidence before it, that in the understanding of those who are in this particular trade, metallised polyest....