Commnr. Of Customs(Import) vs M/S. Konkan Synthetic Fibres

Customs authorities, inter alia, seeking

clearance of the same by extending the benefit

of the Notification No.17/01-Cus dated

1.3.2001, as amended by Notification No.44/01-

Cus, dated 26.04.2001. The Customs authorities

had refused to accept the request of the

assessee and accordingly, had directed the

assessee to pay the duty under the provisions

of the Customs Act, 1962 ("the Act" for

short). Therefore, the assessee was

constrained to pay the duty in order to clear

the goods. The said payment was made under

protest so that it could carry the matter

further in appeal before the First Appellate

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Authority.

3. In the appeal filed, the First Appellate

Authority has confirmed the view of the

Customs authority. Dissatisfied with the

order so passed, the assessee had carried the

matter in appeal before the CESTAT and the

CESTAT has granted relief to the assessee.

4. The Revenue, being aggrieved by the same is,

before us in this appeal.

5. We have heard Shri. V.Shekhar, learned senior

counsel assisted by Smt. B.Sunita Rao for the

Revenue and Shri. S.K.Bagaria, learned senior

counsel for the assessee.

6. Shri. Shekhar, learned senior counsel for the

Revenue, after bringing to our notice the

Notification under which the assessee had

claimed benefit for the imported goods, would

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submit, that, what was imported by the

assessee was not in consonance with the

exemption notification and, therefore, the

authorities under the Act were justified in

denying the benefit available under the

notification to the assessee. The learned

senior counsel further submits, what is

imported by the assessee is High Speed Draw

Warping Machine with yard tensioning without

the pneumatic suction device but with a

drawing machine. The learned counsel would

submit, since what was imported is not in

accordance with Entry 8 of the table appended

to the Notification, the assessee is not

entitled to the benefit of the exemption

notification.

7. Per contra, Shri Bagaria, learned senior

counsel would submit that the beneficial

notification should be given a liberal

construction and if it is done, then, what is

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imported by the assessee would fall within

Entry 8 of the table appended to the exemption

notification.

8. The Central Government, in exercise of its

power under Section 25(1) of the Act, has

issued an exemption notification in public

interest, exempting certain articles notified

under the table appended to the notification

from payment of the duty under the Act.

Several items are enumerated under the table.

Entry 130 of the table speaks of drawing

machine. Entry 8 of the notification speaks

of the High Speed Warping Machine with yarn

tensioning, pneumatic suction devices and

accessories. A reading of the said entry

would indicate that the said machine is a

composite machine. The pneumatic suction

devices are machines used for the purpose of

sucking of vapour/gas, while the High speed

warping machine is activated or warped. There

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is no dispute that the assessee has imported

High speed warping machine but without

pneumatic suction device, but with drawing

unit. The textile commissioner, who is well

conversant with these machines, has stated

vide his letter dated 27.9.2001 that the goods

imported by the assessee are covered under

Entry-8 of the Table appended to the

notification. He further stated vide his

letter dated 24.10.2001 that drawing unit is

just an essential accessory to the machines

imported by assessee and, therefore, is

covered under said Entry. The opinion so

furnished is taken note of by the Tribunal

while granting relief to the assessee.

9. It is a settled proposition in a fiscal or

taxation law that while ascertaining the scope

or expressions used in a particular entry, the

opinion of the expert in the field of trade,

who deals in those goods, should not be

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ignored, rather it should be given due

importance. In Collector of Customs v. Swastic

Woollens (P) Ltd., 1988 Supp SCC 796, this

Court has observed thus:

"4. We are of the opinion that when no

statutory definition is provided in

respect of an item in the Customs Act or

the Central Excises Act, the trade

understanding, meaning thereby the

understanding in the opinion of those who

deal with the goods in question is the

safest guide. See Union of India v. Delhi

Cloth & General Mills. South Bihar Sugar

Mills Ltd. v. Union of India, Dunlop India

Ltd. v. Union of India, In re Colgate

Palmolive (India) Pvt. Ltd., CST v. S.N.

Bros., Kanpur, and also the famous

observations of Justice Cameron in His

Majesty The King v. Planters Nut and

Chocolate Co. Ltd. "

10.Before we discuss the issue involved, we

intend to notice how this Court has construed

beneficial notifications issued under the Act.

In Commissioner of Customs (Preventive),

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Mumbai v. M. Ambalal and Company, (2011) 2 SCC

74, (in which one us was the party) has

observed that the beneficial notification

providing the levy of duty at a concessional

rate should be given a liberal interpretation:

"16. It is settled law that the

notification has to be read as a whole. If

any of the conditions laid down in the

notification is not fulfilled, the party

is not entitled to the benefit of that

notification. The rule regarding

exemptions is that exemptions should

generally be strictly interpreted but

beneficial exemptions having their purpose

as encouragement or promotion of certain

activities should be liberally

interpreted. This composite rule is not

stated in any particular judgment in so

many words. In fact, majority of judgments

emphasise that exemptions are to be

strictly interpreted while some of them

insist that exemptions in fiscal statutes

are to be liberally interpreted giving an

apparent impression that they are

contradictory to each other. But this is

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only apparent. A close scrutiny will

reveal that there is no real contradiction

amongst the judgments at all. The

synthesis of the views is quite clearly

that the general rule is strict

interpretation while special rule in the

case of beneficial and promotional

exemption is liberal interpretation. The

two go very well with each other because

they relate to two different sets of

circumstances."

11.In Commissioner of Sales Tax v. Industrial

Coal Enterprises, (1999) 2 SCC 607, this Court

has observed:

"11. In CIT v. Straw Board Mfg. Co. Ltd.

this Court held that in taxing statutes,

provision for concessional rate of tax

should be liberally construed. So also in

Bajaj Tempo Ltd. v. CIT it was held that

provision granting incentive for

promoting economic growth and development

in taxing statutes should be liberally

construed and restriction placed on it by

way of exception should be construed in a

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reasonable and purposive manner so as to

advance the objective of the provision."

12.In Commissioner of Central Excise, Shillong

v. North-Eastern Tobacco Co. Ltd., (2003) 1

SCC 161, this Court has held:

[

"10. The other important principle of

interpreting an exemption notification is

that as far as possible liberal

interpretation should be imparted to the

language thereof, provided no violence is

done to the language employed."

13.In Associated Cement Companies Ltd. v. State

of Bihar, (2004) 7 SCC 642, this Court while

explaining the nature of the exemption

notification and also the manner in which it

should be interpreted has held:

"12. Literally "exemption" is freedom from

liability, tax or duty. Fiscally it may

assume varying shapes, specially, in a

growing economy. In fact, an exemption

provision is like an exception and on

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normal principle of construction or

interpretation of statutes it is construed

strictly either because of legislative

intention or on economic justification of

inequitable burden of progressive approach

of fiscal provisions intended to augment

State revenue. But once exception or

exemption becomes applicable no rule or

principle requires it to be construed

strictly. Truly speaking, liberal and

strict construction of an exemption

provision is to be invoked at different

stages of interpreting it. When the

question is whether a subject falls in the

notification or in the exemption clause

then it being in the nature of exception is

to be construed strictly and against the

subject but once ambiguity or doubt about

applicability is lifted and the subject

falls in the notification then full play

should be given to it and it calls for a

wider and liberal construction. (See Union

of India v. Wood Papers Ltd. and Mangalore

Chemicals and Fertilisers Ltd. v. Dy.

Commr. of Commercial Taxes to which

reference has been made earlier.)"

11 14.In G.P. Ceramics Private Limited v.

Commissioner, Trade Tax, Uttar Pradesh, (2009)

2 SCC 90,this Court has observed thus:

"29. It is now a well-established

principle of law that whereas

eligibility criteria laid down in an

exemption notification are required to

be construed strictly, once it is found

that the applicant satisfies the same,

the exemption notification should be

construed liberally. [See CTT v. DSM

Group of Industries (SCC para 26);

TISCO v. State of Jharkhand (SCC paras

42 to 45); State Level Committee v.

Morgardshammar India Ltd.; Novopan

India Ltd. v. CCE & Customs; A.P. Steel

Re-Rolling Mill Ltd. v. State of Kerala

and Reiz Electrocontrols (P) Ltd. v.

CCE.]"

15.Since the Tribunal has taken note of the

correct principles enunciated by this Court

while granting relief to the assessee, we

cannot find fault with the impugned judgment.

12 Accordingly, the appeal requires to be

rejected and it is rejected. No costs.

Ordered accordingly.

...................J.

(H.L. DATTU)

...................J.

(ANIL R. DAVE)

NEW DELHI;

FEBRUARY 29, 2012

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