THERMAX PRIVATE LIMITED v. COLLECTOR OF CUSTOMS (BOMBAY) NEW CUSTOMS HOUSE

The Judgment of the Court was delivered by H

p. 946 Copy page pinpoint

A RANGANATHAN, J. These two appeals by Thermax (Pvt.) Ltd. )'- (hereinafter referred to as 'the assessee') raise a question of interpretation of two similar notifications issued under S.8 of the Central Excises & Salt Act, 1944 ('the Act', for short).

The assessee imported goods described as "Sanyo Single Effect B Chiller" from Japan for the purpose of using the same for refrigeration/air conditioning of the factories of Indian Rayon Corporation at Veraval and Nirlon Synthetics Fibre and Chemicals Ltd.. It paid the customs duty leviable thereon at the appropriate rate under the relevant entry of the customs tariff but claimed exemption from the additional duty of customs c leviable under S.3(1) of the Customs Tariff Act, 1975 (C.T.Act, in short). The relevant portion of the said section reads thus:

"3. (1) Any article which is imported into India shall, in addi- tion, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being + D leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the im- ported article shall be so liable shall be calculated at that percentage of the value of the imported article. E Explanation : - In this section, the expression "the excise duty for the time being leviable on a like article if produced or manufactured in India" means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India, or, if a like article is not so produced F or manufactured, which would be kviable on a class or descrip- tion of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty."

- (Underlining Ours) G In view of the language of the above provision, it is common ground between the parties that notifications of exemption from central excise duty issued from time to time under S.8.(1) 6f the Act would be applicable, in the case of imported goods, for determining the leviability of the additional duty under S.3(1) above-mentioned. In other words, if any goods are H entitled to full or partial exemption from payment of central excise under

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any such· notification, the exemption or concession would also extend to the additional duty payable under S3(1) of the C.T. Act, subject, of course, ~ to the fulfilment of any conditions or requirements that may have to be complied with for availing the exemption under any particular notification.

The assessee, in the present case, cleared the imported goods after paying the customs duty as well as the additional duty (hereinafter referred to as 'CVD') but, on second thoughts, decided that it should have claimed a concession in respect of the CVD on the strength of notifications nos. 63/85 and 93/76 issued under S.8 of the Act. It, therefore, made applica- )- tions for refund of the CVD ·but these were, rejected by the Assistant Collector of Customs by his orders dated 25.2.85 and 30.9.85. c The assessee appealed to the Co.llector of Customs (Appeals) from these orders. The Collector allowed the appeal from the order dated' 25.2.85 but his successor-in-office, who dealt with the appeal from the later

+ order of 30.4.85, took a different view and dismissed the assessee's appeal. The assessee as well as the department preferred appeals from the respec- tive order which went against them. The Tribunal accepted the D

department's appeal but dismissed the assessee's appeal. Hence these two appeals by the assessee.

It is common ground that customs duty is payable and has been paid E on the imported goods under customs tariff item no. 84.17(1) at 40% of the value of the imported goods plus a surcharge of 25% thereon. The rate of CVD, however has to be determined on the basis of item no. 29A of the central excise tariff. It is common ground that "chillers" fall under sub-item (3) of item 29A and that the basic excise duty payable thereon was at 80% F of the value of the goods under the above item read with notification 42/84-C.E. dated 1.3.84. ~ However, the S.8. notifications referred to earlier provide a further concession. Notification no. 93n6-C.E. is relevant for the purposes of the first appeal while notification no. 63/85-C.E. is relevant for the purposes of G the second. The notifications are somewhat differently worded. It is, how- ever, common ground that the two notifications are worded alike in all respects material for the purposes of the present appeals. It is therefore sufficient if the terms of notification no. 63/85 dated 17.3.85 are extracted here. It reads ! H

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A EFFECTIVE RATES 63/85-CE, Dt.17.3.1985

"Effective rates of duty on Refrigerators, Evaporative type of coolers, Air-conditioning appliances, etc. and parts thereof prescribed.

B In exercise of the powers conferred by sub-rule (1) rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts goods of the description specified in column (3) of the Table hereto annexed and falling under the sub-item specified in the corresponding entry in column (2) of the said Table, of Item No. 29A of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944), from so much of the duty of excise C leviable thereon under the said Act at the rate specified in the correspond- ing entry in column (4) of the said Table subject to the conditions, if any, laid down in the corresponding entry in column (5) thereof. TABLE

D Sl. Sub Description Rate Condition + No. Item No.

1Copy pinpoint1. 2. 3. 4. 5.

1. (1) Refrigerators and other refrigerating appliances- E (i) Water-coolers Nil - (ii) Domestic refrigerators of Twenty five - capacity not exceeding 165 per cent ad litres valorem. (iii) Others - Fifty per cent advalorem

2Copy pinpoint2. (2) Evaporative type of coolers Thirty per cent ad va/orem If-

3Copy pinpoint3. (2) Air conditioners and other air- Twenty-five (i) the said conditioning appliances per cent goods are so including package type of air- ad valorem. used; conditioners; split unit air- (ii) the said conditioners, the cooling or goods are not room unit and condensing unit resold within a therefore required for use in period of five any of the following, namely :- years from the H

THERMAX v. COLLECTOR OF CUSTOMS [RANGANATHAN, J.) 949

-( SI. Sub Description Rate Condition A No. Item No. (i) Computer Rooms. date cf imtallarion (ii) Research and Development and (iii) the proce- B '

Laboratories. (iii) Animal Houses. dure specified , (iv) Telephone Exchanges. in Chapter X of (v) Broadcasting Studios. the Central (vi) Trawlers. Excise Rules, 1944, is (vii) Dams. followed. c (viii) Mines and Tunnels. (ix) Thermal or hydel power stations. (x) Technical Building of + Military Engineering Services and Mobile Tropo D and Mobile Radar Unit under the Ministry of Defence. (xi) Any hospital nm by the Central Govennnmt, State Gc:M!mment ,E or a Local Auth<Xity. (xii) Any hospital run by a Public Charitable Institution, the income from which is exempt under sub-section (22.t\) of F section 10 of the Income Tax Act, 1961 (43 of 1961). (xiii) Any factory. (xiv) Electricity load despatch centres. (xv) Indian, Naval Ships. G

4Copy pinpoint4. (3) Parts of refrigerating and air- Eighty conditioning appliances and per cent machinery, all sorts, the ad valorem. following, namely:-

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A Sl. Sub Description Rate Condition No. Item '>- No. (i) Cooling coils or evaporator. (ii) Compressor. B (iii) Condenser. (iv) Thermostat. (v) Cooling unit (excluding the room unit of split unit air- ~ conditioner}, and in the case of absorption types of c refrigerators in which there is no compressor, heater including burners and baftles in a karosene operated

D absorption type refrigerator. (vi) Starting relay controls + (including expansion valve and solenoid valves) and pressure switches. (vit) Overload protection/thermal relay. E 5. I. (viii) Cabinet. (3) Parts of refrigeratjng and air- Nil r conditioning appliances and machinery, all sorts, other than those specified in S.No. 4 above.

6Copy pinpoint6. (3) Parts of refrigerating machinery Twenty five If- as si)ecified in S.No.4 above and per cent (i) the said required for use in a cold storage ad valorem. parts are used i for storage and preservation of in the said cold the food stuffs specified in storage; and G paragraph 3 of the Cold Storage (ii) the procedure Order, 1964 dated the 3rd specified in September, 1964 Chapter X of the Central Excise :-. Rules, 1944 is fol- lowed. H

TIIERMAX v. COLLECTOR OF CUSTOMS {RANGANATIIAN, J.] 951 .f

SI. Sub Description Rate Condition A- No. Item No.

7Copy pinpoint7. (3) Parts of refrigerating Twenty five If- appliances and machinery of per cent ,, (i) the said 'the description specified in ad valorem . .,~parts are so B S.No.4 above and required for }' used; and ' use in the manufacture of- (ii) the procedure (a) refrigerating vans, including specified in wagons for transport of Chapter X of the Perishables, food and dairy ' Central

-- products; (b) ships, including frigates where provision is made for the Excise Rules, 1944 is followed. C

preserv~ion of perishable -+ goods in transport. D

8Copy pinpoint8. (3) Parts of refrigerating and air- Twenty five If- 1

conditioning appliances and per cent (i) the said machinery of the description ad valorem. parts are so specified in S.No.4 above and used; and required for use in refrigerating (ii) tM procedure E or air-conditioning appliances or specified in machinery conditioning Chapter X of the appliances or machinery-in any Central Excise of the following, namely:- Rules, 1944 is followed. (i) Computer Rooms. F (ii) Research and Development Laboratories. (iii) Animal Houses. (iv) Telephone Exchanges. (v) Broadcasting Studios. G (vi) Trawlers. (vii) Dams. (viii) Mines and Tunnels.

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A SI. Sub Description Rate Condition No. Item No. (ix) Thermal or hydel power stations. B (x) Technical Building of Military Engineering Services and Mobile Tropo and Mobile Radar Unit under the Ministry of Defence. c (xi) Any hospital run by the Central Government, State Government or a Local Authority. I

D (xii) Any hospital run by a Public Charitable + Institution, the income from which is exempt under sub- section (22A) of section 10 of the Income Tax Act, 1961 E (43 of 1961): (xiii) Any factory. (xiv) Electricity load despatch centres. (xv) Indian Naval Ships.

9Copy pinpoint9. (3) Compressors used in the Nil If such use is manufacture of water coolers. elsewhere than in the factory of production of the said compressors then procedure prescribed under -· Chapter X of the Central Excise Rules, 1944 is followed. H

1HERMAX v. COLLECTOR OF CUSTOMS [RANGANAIBAN, J.] 9,53

It will be seen that the goods set out in the notification are mostly A exigible to excise duty at the concessional rate of 25% ad valorem provided that they fulfill the conditions set out in column (5) of the above table. It I

is again common ground that the item of goods presently in question is tjne of those mentioned in S.No.8, sub-item no. (3) of the notification and tllat it also conforms to the description of the said item as set out in column B (3) of the above table. Turning to column (5), it requires the fulfilment of two conditions to enable the assessee to get the concession : (i) that the said parts should be so used i.e. used in· refrigerating or air-conditioning appliances or machinery in any one of the places set out as items (i) to (xv)of column (3) against item c 8(3); and

(ii) that the procedure specified in Chapter X of the Central + Excise Rules, 1944 is followed. D Here parties are agreed that the chillers imported by the asses~e . ' are used in a factory- vide item (xiii) - and that, therefore the first of these conditions has been fulfilled. The assessee's claim for concession has, however, bee~ rejected not on the ground that the second of the above conditions has not been fulfilled E f but on the broader ground that the procedure of Chapter X is designed to facilitate clearances only for the purposes of central excise and that the said procedure cannot be fulfilled at all in the case of an importer. In other -: words, the view was that the second condition was such that it was attracted only for purposes of central excise and could not at all be invoked t~ claim F a concession in CVD. It is the correctness or otherwise of this conclusion ~ that has to be determined in these appeals.

This takes us to a consideration of the provisions of Chapter X :of G the Central Excis~ Rules, 1944. This Chapter provides for a "remission ·of (central excise) duty on goods used for special industrial purposes". Rule c . '¥ 192 is the principal rule in this Chapter which reads thus: "Rule 192. - Application for concession - Where the Central Government has, by notification under rule 8 sanctioned the H

[1992) 3 S.C.R.

,, 954 SUPREME COURT REPORTS

A remission of duty on excisable goods other than salt, used in a specified industrial process any person wishing to obtain remis- sion of duty on such goods, shall make application to the Collector in the proper Form stating the estimated annual quantity of the excisable goods required and the purpose for B and the manner in which it is ·intended to use them and declaring that the goods will be used for such purpose and in such manner. If the Collector is satisfied that the applicant is a person to whom the concession can be granted without ......_ danger to the revenue, and if he is satisfied, either by personal inspection or by that of an officer subordinate to him that the c premises are suitable and contain a secure store-room suitable for the storage of the goods, and if the applicant agrees to bear the cost of such establishment as the Collector may consider necessary for supervising operation his premises for the pur- poses of this Chapter, the Collector may grant the application, I

D and the applicant shall then enter into a bond in the proper -t"- Form with a surety or sufficient security, in such amount and under such conditions as the Collector approves. Where, for this purpose, it is necessary for the applicant to obtain an Excise Licence, he shall submit the requisite application along with E the proof for payment of licence fee and shall then be granted a licence is the proper Form. The concession shall, unless renewed by the Collector, cease on the expiry of the Licence.

Provided that, in the event of death, insolvency or insuf- ~ F ficiency of the surety, or where the amount of the bond is inadequate, the Collector may, in his discretion, demand a fresh bond: and may, if the security furnished for a bond is not adequate, demand addition;U security". 't

Rules 193 to 1%-BB make provisions for proper packing and G transport of the goods in question to the premises of the applicatit, their storage in a distinct and separate place under the control of the applicant, the maintenance of proper accounts in respect thereof, controls over their

H transfer .and movement and finally regarding the disposal of such goods where they are found to be in surplus or defective or damaged and even " •

TIIERMAX v. COLLECTOR OF CUSTOMS [R~GANATHAN, J.] 955

~ of the refuse resulting from their use in the specified industrial process. It A is unnecessary to go into the details of these provisions for our present purposes. Though the latter part of Rule 192 also enables an applicant, where necessary, to obtain a licence in Form L-6 and also prescribes a form of application (Form AL-6) for grant of duty concession on goods pur- chased for the process of manufacture during the period of currency of the B licence, the opening words of the rule are very wide and general. The benefit of Chapter X will no doubt generally be claimed by a manufactu~er in which event he will have to make the application, get the licence and give the assurances, bond or guarantee required by the rules but it can also be claimed by other persons. The language of the rule applies to any c person, not necessarily a manufacturer, wishing to obtain remission of duty sanctioned by a notification under rule 8 on excisable goods in a specified + industrial process. The industrial processes specified in Column (2) are also not very complicated or elaborate in every case. Even a purchase by D a person for use of the part in question in a factory could be covered by the scope of Column (2}~ Such a person has only to make an application setting out the quantity of goods required as well as the manner and purpose of their use and give a declaration that they will be used for the specified purpose. Thereupon the Collector, if satisfied that the concession E can be granted without danger to the revenue may grant the application subject to the conditions set out in the section. He may grant a licence in -= Form L-6 in appropriate cases and, in others, direct the grant of a certifi- cate in Form CT-2. The possession of the licence or the production of tlte F CT-2 certificate enables the applicant to secure the necessary concession.

It will at once be seen that there is nothing in the scheme of the rule which makes it inapplicable to an importer of goods. The assessee here has imported the goods and is selling them for use in a factory, a use which qualifies for the concession under the S.8 notifications. The types of uke G specified in the concessions notified could be of any kind and, even in the ~ notifications under our consideration, they are many and varied. In respect of items falling under S.Nos. 3 and 8, in particular, the actual users may be H

956 SUPREME COURT REPORTS [1992) 3 S.C.R.

A private individuals or authorities and need not nece!!sarily be manufac- ~ turers using the goods in question in an "industrial process" in a narrow sense of that term. For instance, any computer room, hospital or factory purchasing parts of refrigerating and air-conditioning appliances and machinery for use in the computer room, hospital or factory would be B entitled to claim the concession by following the prescribed procedure. Only, for claiming a concession in excise duty the user should be the manufacturer himself or he must have made the purchase from a manufac- ~- turer liable to pay excise duty on the item whereas in regard to a claim for CVD concession, the supplier will be an importer. The latter will be c entitled to sell the goods at the concessional rate of duty (or at nil rate if ~

there is an exemption) if the purchaser from him who puts the goods to the specified use (whether a manufacturer or not) fulfils the requirements or Rule 192. Since the concession under Rule 192 turns only on the nature ..,.._ ' D and use to which the goods are put by the user or purchaser thereof and on whether he has gone through the· procedure outlined in Chapter X, it would not be correct to deny it to a supplier of such goods on the ground that he is an importer and not a manufacturer. That aspect is provided for by S.3(1) of C.E.T. Act which specifically mandat~s that the CAV will be equal to the excise duty for the time being leviable on a like article if produced or manufactured in India. In other words, we have to forget that the goods are imported, imagine that the importer had manufactured the goods in India and determine the amount of excise duty that he would have ~

been called upon to pay in that event. Thus, if the person using the goods is entitled to the remission, the importer will be entitled to say that the CVD should only be the amount of concessional duty and, if he has paid "t more, Will be entitled to ask for a refund. In our opinion, the Tribunal was in error in holding that the assessees could not get a refund because the procedure of Chapter X of the rules is inapplicable to importers as such.

Learned counsel. for the assessee however contended that, even if the conclusion of the Tribunal that the procedure of Chapter X of the rules x ....

cannot be complied with in such cases is correct, the exemption under the H

THERMAX v. COLLECTOR OF CUSTOMS [RANGANATIIAN, J.] 957

notification cannot be denied. He relied, in support of this submission on A a letter of the Central Board of Excise & Customs (F.No.332/65/86 TRV dated 27.7.87) the relevant portion of which runs as under : "The Board is of the view that it would legally not be correct to levy additional (counter-valing) duty is actually payable ~ respect of such goods when manufactured in India (sic). It B follows therefore, that when there is no excise duty, there can be no additional (counter-valing) duty. The condition in the relevant Central Excise Notifications that in respect of use of the material elsewhere than in the factory of manufacture, the procedure set out in Chapter .X of the Central Excise Rules C should be followed is condition relating to procedural require- ment which obviously _cannot be satisfied by the imported goods.

+ In view of the above, it would not be correct to deny the1 D benefit of exemption notification to imported goods only be-\ cause the procedural condition in the notification is not satis- fied by the imported goods. It has therefore, been decided that wherever the intended use of the material can be established by the importer who may be the manufacturer of chemicals or from other evidence, the benefit of exemption under the ex- E emption notification 'should not be de~ed to imported goods only because the procedural condition of following Chapter X procedure is not complied with." It will be seen that this letter also proceeds on the'; same view as that of the Tribunal that Chapter X procedure _cannot be satisfied in the case of imported goods. This is at variance with the interpretation which we :I. have placed on rule 192. We, however, agree with the observation of the · Board that the benefit of exemption or concession should be granted wherever the intended use of the material can be established by the importer or by other evidence.

X · This conclusion however does not entitle the assessee to the conces- sion claimed in both these appeals. Its entitlement will depend on whether the purchaser is the holder of an L-6 licence (or C.T.-2 certificate) or not. H

958 SUPREME COURT REPORTS (1992) 3 S.C.R.

A The Tribunal has pointed out that the goods were supplied by the assessee to Indian Rayon Corporation and M/s Nirlon Synthetics Fibre and Chemi- ~ cals Ltd., of which the latter was the holder of an L-6 licence. The position in regard to the former is not known. The grant of concession in respect of the former by the Collector (Appeals) in the first appeal is, therefore, B correct and is upheld. So far as the other appeal is concerned, the assessee produced no material to show that the "beneficiary'' factory was eligible for the concession under rule 192. The benefit of such concession to the assessee must therefore be held to have been rightly denied in that appeal.

THERMAX v. COLLECTOR OF CUSTOMS (RANGANATHAN, J.) 959

decisions on analogous provision in Collector of Customs v. Western India A · Plywood Manufacturing Co. Ltd. and Collector of Customs v. Hansur Plywood Works, (1989] Suppl. 2 S.C.C. 515 and 520. We, therefore, reject this contention.

For the reasons stated above, we allow C.A. 4693/90 treating it as t4e B appeal arising out of the order passed by the Tribunal from the. order of the Collector of Customs dated 16.4.85. C.A. 4694/90 will however stand dismissed but, in the circumstances, without costs.

G.N. C.A. 4693/90 allowed, C.A. 4694/90 dismissed. I