M/s Goodyear India Ltd. Vs. Collector of Customs, Bombay
EmailAppeal: Civil Appeal No.3632 of 1986
(From the Judgment and Order dated 16-04-1986 of the Customs
Excise and Gold (Control) Appellate Tribunal, New Delhi in
A.No.1333/80-D) (Order No.233/86-D))
(From the Judgment and Order dated 16-04-1986 of the Customs
Excise and Gold (Control) Appellate Tribunal, New Delhi in
A.No.1333/80-D) (Order No.233/86-D))
Petitioner: M/s Goodyear India Ltd.
Respondent: Collector of Customs, Bombay
Apeal: Civil Appeal No.3632 of 1986
(From the Judgment and Order dated 16-04-1986 of the Customs
Excise and Gold (Control) Appellate Tribunal, New Delhi in
A.No.1333/80-D) (Order No.233/86-D))
(From the Judgment and Order dated 16-04-1986 of the Customs
Excise and Gold (Control) Appellate Tribunal, New Delhi in
A.No.1333/80-D) (Order No.233/86-D))
Judges: A.M. AHMADI, CJI & S.P. BHARUCHA, JJ.
Date of Judgment: Jan 27, 1997
Appearances:
Mr. S. Ganesh, Mr. Amit Bansal, Advocates for M/s. JBD & Co.,
Advocates for the Appellants.
Advocates for the Appellants.
Mr. M.S. Usgaonkar, Additional Solicitor General, Mr. V.K. Verma,
Mr. S.D. Sharma, Mr. Hemant Sharma, Advocates with him for the
Respondents.
Head Note:
CUSTOMS ACT
Tariff Act 1975
Section 3 (3) Explanation to Section 3 – Levy of additional Duty – Imported bulked nylon fabric read with Central Excise Rules 1944 – Held Section 3(3) enables Govt. to levy additional duty to counter balance excise duty leviable and admittedly imported goods fall within description
“textured yarn produced out of base yarn and they cannot be charged additional duty at the rate leviable for other textured yarn – Held Tribunal erred in its view and order is set aside.
Held:
Section 3 requires that an article imported into India shall be liable to additional duty equal to the excise duty for the time being leviable on a like article if produced or manufactured in India. The expression “the excise duty for the time being leviable on a like article if produced or manufactured in India” has been defined by the Explanation to Section 3(1). It means the excise duty for the time being in force which would be leviable on a like article produced or manufactured in India. If a like article is not produced or manufactured in India, the expression means the excise duty which would be leviable on the class or description of articles to which the imported article belongs; and where such excise duty is at different rates, the expression means the highest rate of duty. Section 3(3) enables the Central Government, in the public interest, to levy on an imported article such additional duty as would counterbalance the excise duty leviable on raw materials, components and ingredients of the same nature as are used in the manufacture of such article or are similar thereto. The Central Government may, by notification in the Official Gazette, direct that an imported article shall bear additional duty representing such portion of the excise duty leviable on such raw materials, components and ingredients as it may by rules determine. It is in exercise of the power conferred by Section 3(3) that the Additional Duty Rules, 1976, have been framed and they specify that additional duty shall be imposed on fabrics containing more than 10 per cent by weight of synthetic fibre or yarn which shall be equivalent to the excise duty leviable on the synthetic fibre and yarn used therein.
The Explanation to Section 3(1) says of an article which is not produced or manufactured in India that the expression “excise duty for the time being leviable on a like article if produced or manufactured” means that duty which would be leviable on the class or description of articles to which the imported article belongs. Since, admittedly, the imported goods fall within the description “textured yarn produced out of base yarn”, the additional duty is payable thereon is that specified against that description in the Table of the said notification and they cannot be made liable to additional duty at the rate specified for “other textured yarn”, that is to say, for textured yarn that does not fulfill the description of being produced out of base yarn.
We are fortified in the view that we take by the decision of this Court in Thermax Private Ltd. v. Collector of Customs (Bombay) New Customs House, JT 1992 (5) SC 281 = (1992) 4 S.C.C. 440.
We are, therefore, of the view that the Tribunal was in error and that the judgment and order under appeal must be set aside.(Para 8, 9, 10 & 11)
Cases Reffered:
1. Thermax Private Ltd. v. Collector of Customs (Bombay) New Customs House, JT 1992 (5) SC 281 = (1992) 4 SCC 440. (Para 10)
2. Collector of Customs v. Hansur Plywood Works, JT 1989 (4) SC
393 = 1989 Supp. (2) SCC 520. (Para 10)
2. Collector of Customs v. Hansur Plywood Works, JT 1989 (4) SC
393 = 1989 Supp. (2) SCC 520. (Para 10)
JUDGEMENT:
BHARUCHA, J.:
1. The appeal arises upon a judgment delivered by the Customs,
Excise and Gold (Control) Appellate Tribunal. The appellants
imported bulked nylon fabric. The bill of entry described the
imported goods as being Nylon Woven Dipped Diffusion Resistance
Fabric, Goodyear Code EO2 NN. The imported goods were cleared
upon payment of duty as demanded. The appellants then claimed
refund of the additional duty paid by them as now stated. The
claim having been refused by the authorities below, the Tribunal
was moved.
2. The Customs Tariff Act, 1975, prescribes in Section 3 for
the levy of additional duty equal to excise duty. Sub-section
(1), its Explanation and sub-section (3) of Section 3 are
relevant, and they read thus :
“3. Levy of Additional duty equal to excise duty. – (1)
Any article which is imported into India shall, in addition,
be liable to a duty (hereafter in this section referred to as
the additional duty) equal to the excise duty for the time
being 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 imported article shall be so liable shall be
calculated at that percentage of the value of the imported
article.
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 produced or manufactured, which would be
leviable on the class or description of articles to which the
imported article belongs, and where such duty at different
rates, the highest duty.
xxx xxx xxx
(3) If the Central Government is satisfied that it
is necessary in the public interest to levy on any
imported article (whether on such article duty is leviable
under sub-section (1) or not) such additional duty as
would counter balance the excise duty leviable on any
raw materials, components and ingredients of the same
nature as, or similar to those, used in the production or
manufacture of such article, it may, by notification in the
Official Gazette, direct that such imported article
shall, in addition, be liable to an additional duty
representing such portion of the excise duty leviable on
such raw materials, components and ingredients as, in either
case, may be determined by rules made by the Central
Government in this behalf.”
3. Under the provisions of Section 3(3) of the Customs Tariff
Act, the Additional Duty Rules, 1976, have been framed. Rule 2
states that for the purposes of Section 3(3) “the additional duty
leviable on any imported article specified in column (2) of the
Table annexed hereto shall be equal to the excise duty for the
time being leviable on the material specified in the
corresponding entry in column (3) of the said Table to the extent
that material is used in the manufacture of the imported
article”. The Table reads thus :
” TABLE
———————————
S.No. Name of article Name of
material
———————————
(1) (2) (3)
———————————
1. Fabrics containing more than 10 Synthetic
per cent by weight of synthetic fibre and
fibre or yarn. yarn.
2. ………………………….. …………..”
———————————
4. In exercise of the powers conferred by Rule 8 of the Central
Excise Rules, 1944, the Central Government, by Notification
No.55/78 dated 1st March, 1978, (hereinafter called “the said
notification”) exempted textured yarn of the description
specified in column (2) of the Table thereto falling under sub-
item II (i)(b) of Item No.18 of the First Schedule to the Central
Excises and Salt Act, 1944, from so much of the excise duty
leviable thereon as was in excess of the duty specified in the
corresponding entry in column (3) of that Table. The Table read
thus :
THE TABLE
“
———————————
S.No. Description Rate of duty
———————————
(1) (2) (3)
———————————
1. Textured yarn produced out The duty for the time
of Base yarn being leviable on the
Base yarn if not already
paid plus five rupees
per kilogram.
2. Other textured yarn – (Rs. per kilogram)
(a) Polyamide (nylon)
Textured yarn –
(i) below 38.5 deniers 63.80
(ii) 38.5 deniers and above 56.80
but below 88 deniers
(iii) 88 deniers and above but 49.80
below 121 deniers
(iv) 121 deniers and above but 42.80
below 165 deniers
(v) 165 deniers and above 24.60
xxx xxx xxx
———————————
Explanation 1. – “base yarn” means yarn falling under sub-item
II(i) (a) of Item No. 18 of the First Schedule to the Central
Excise and Salt Act, 1944 (1 of 1944), from which textured yarn
has been produced;
5. The Tribunal noted the contention on behalf of the appellant
that the yarn in question fell under S.No.1 aforementioned and
not under S.No. 2(a)(v), and the basis for the contention,
namely, that the supplier of the imported goods had bought base
yarn and subjected it to the process of air-bulking to produce
the textured yarn that was imported. The Tribunal stated,
counsel “contends that the description of the article relevant to
the present case is textured yarn produced out of base yarn and
not other textured yarn in notification 55/78. This contention
has, in our opinion, substance”. The Tribunal went on to add,
“The description of the article in the First Schedule to
the Central Excises and Salt Act is Textured yarn. ‘Textured
yarn produced out of base yarn’ is merely descriptive of
process of manufacture. For duty purposes, notification
No.55/78 describes and fixes a different concessional rate of
duty for textured yarn produced out of base yarn separately from
other textured yarn. This itself shows that textured yarn is
liable to excise duty at different rates, depending on the
process of manufacture. The excise leviable on textured
polyamide yarn of above 750 deniers would depend on the process
of manufacture. It is Rs.6.50 (SI.No.3(b)(vi) of notification
No.38/75 CE) plus Rs.5/- per kg. (Col. 3 against Sl. No.1 of
notification 55/78 CE), if such textured yarn is produced out of
base yarn. If it is produced otherwise, the rate of duty is
Rs.24.60 per kg. (Sl. No.2(a)(v) of notification 55/78). In such
a situation, the yarn content of the imported fabrics would
attract duty at the higher rate viz., Rs.24.60 per kg. (plus
special excise duty as may be applicable).”
6. Learned counsel for the appellants submitted that once the
Tribunal had come to the conclusion that the imported goods were
textured yarn produced out of base yarn, only that amount of
additional duty was payable thereon as was specified against the
description “textured yarn produced out of base yarn” in the Table of the said notification. There was no question then of
requiring the appellants to pay additional duty at a rate
specified in the notification for “other textured yarn”.
7. The learned Additional Solicitor General, appearing for the
Revenue, placed reliance upon the Explanation to Section 3(1).
In his submission, the imported goods were textured yarn in
respect of which the said notification prescribed different rates
of duty; therefore, under the Explanation to Section 3(1), the
highest duty thereon was that which was payable by the
appellants.
8. Section 3 requires that an article imported into India shall
be liable to additional duty equal to the excise duty for the
time being leviable on a like article if produced or manufactured
in India. The expression “the excise duty for the time being
leviable on a like article if produced or manufactured in India”
has been defined by the Explanation to Section 3(1). It means
the excise duty for the time being in force which would be
leviable on a like article produced or manufactured in India. If
a like article is not produced or manufactured in India, the
expression means the excise duty which would be leviable on the
class or description of articles to which the imported article
belongs; and where such excise duty is at different rates, the
expression means the highest rate of duty. Section 3(3) enables
the Central Government, in the public interest, to levy on an
imported article such additional duty as would counterbalance the
excise duty leviable on raw materials, components and ingredients
of the same nature as are used in the manufacture of such article
or are similar thereto. The Central Government may, by
notification in the Official Gazette, direct that an imported
article shall bear additional duty representing such portion of
the excise duty leviable on such raw materials, components and
ingredients as it may by rules determine. It is in exercise of
the power conferred by Section 3(3) that the Additional Duty
Rules, 1976, have been framed and they specify that additional
duty shall be imposed on fabrics containing more than 10 per
cent by weight of synthetic fibre or yarn which shall be
equivalent to the excise duty leviable on the synthetic fibre
and yarn used therein.
9. Insofar as the imported goods are concerned, they fall, as
the Tribunal has found, in the category of “textured yarn
produced out of base yarn”. In respect of “textured yarn produced
out of base yarn” the excise duty that is leviable is that
specified against that description in the Table of the said
notification. The Explanation to Section 3(1) says of an article
which is not produced or manufactured in India that the
expression “excise duty for the time being leviable on a like
article if produced or manufactured” means that duty which would
be leviable on the class or description of articles to which the
imported article belongs. Since, admittedly, the imported goods
fall within the description “textured yarn produced out of base
yarn”, the additional duty is payable thereon is that specified
against that description in the Table of the said notification and they cannot be made liable to additional duty at the rate
specified for “other textured yarn”, that is to say, for textured
yarn that does not fulfill the description of being produced out
of base yarn.
10. We are fortified in the view that we take by the decision of
this Court in Thermax Private Ltd. v. Collector of Customs
(Bombay) New Customs House, JT 1992 (5) SC 281 = (1992) 4 S.C.C.
440. The relevant paragraph is reproduced:
“Shri A.K. Ganguly, on behalf of the Revenue, raises
a contention that, even assuming that the goods fulfil
the conditions of the notification referred to earlier,
the CVD rate applicable would be 80 per cent by
virtue of the Explanation to Section 3(1) of the C.T. Act.
He submits that the goods imported by the assessee as “parts
of refrigerating and air-conditioning equipment”. They are
chargeable at different rates of duty accordingly as they fall
under item with serial No.4 (80 per cent) or that with serial
No.5 (nil) or that with serial No.6 (20 per cent) or that
with serial Nos. 7 and 8 (25 per cent). In such a situation,
he says, the provisions of the Explanation to Section 3(1) are
attracted and hence the assessee will be liable to duty at
the highest rate of 80 per cent. We are loth to permit the
department to raise at this stage a fresh contention not
taken before the Tribunal or earlier. That apart, we do not
think it is well founded. It is no doubt true that Item 29-A
of the Schedule to the C.E. Act is very wide and covers
various articles. The notification also deals with various
categories of articles falling under that item. But there
has been no dispute at any stage that the goods we are
concerned with fall under item with serial No.8(3) of the
notification. So far as the category of goods is concerned,
there is only one rate of duty mentioned in the notification.
The fact that certain other parts of refrigerating and air-
conditioning appliances and machinery may fall under item
with serial No. 4(3) or elsewhere cannot attract the higher
duty on the goods presently under consideration. The
Explanation to the notification (sic Section 3(1)) is
applicable only where goods of exactly the same description
attract different rates of duty. See, in this connection, the
decisions on analogous provision in Collector of Customs v.
Western India Plywood Manufacturing Co. Ltd., 1989 Supp. (2)
S.C.C. 515 and Collector of Customs v. Hansur Plywood Works,
JT 1989 (4) SC 393 = 1989 Supp. (2) S.C.C. 520. We,
therefore, reject this contention. (Emphasis supplied.)
11. We are, therefore, of the view that the Tribunal was in
error and that the judgment and order under appeal must be set
aside.
12. The appeal is allowed. The judgment and order under appeal
is set aside.
13. No order as to costs.
1. The appeal arises upon a judgment delivered by the Customs,
Excise and Gold (Control) Appellate Tribunal. The appellants
imported bulked nylon fabric. The bill of entry described the
imported goods as being Nylon Woven Dipped Diffusion Resistance
Fabric, Goodyear Code EO2 NN. The imported goods were cleared
upon payment of duty as demanded. The appellants then claimed
refund of the additional duty paid by them as now stated. The
claim having been refused by the authorities below, the Tribunal
was moved.
2. The Customs Tariff Act, 1975, prescribes in Section 3 for
the levy of additional duty equal to excise duty. Sub-section
(1), its Explanation and sub-section (3) of Section 3 are
relevant, and they read thus :
“3. Levy of Additional duty equal to excise duty. – (1)
Any article which is imported into India shall, in addition,
be liable to a duty (hereafter in this section referred to as
the additional duty) equal to the excise duty for the time
being 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 imported article shall be so liable shall be
calculated at that percentage of the value of the imported
article.
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 produced or manufactured, which would be
leviable on the class or description of articles to which the
imported article belongs, and where such duty at different
rates, the highest duty.
xxx xxx xxx
(3) If the Central Government is satisfied that it
is necessary in the public interest to levy on any
imported article (whether on such article duty is leviable
under sub-section (1) or not) such additional duty as
would counter balance the excise duty leviable on any
raw materials, components and ingredients of the same
nature as, or similar to those, used in the production or
manufacture of such article, it may, by notification in the
Official Gazette, direct that such imported article
shall, in addition, be liable to an additional duty
representing such portion of the excise duty leviable on
such raw materials, components and ingredients as, in either
case, may be determined by rules made by the Central
Government in this behalf.”
3. Under the provisions of Section 3(3) of the Customs Tariff
Act, the Additional Duty Rules, 1976, have been framed. Rule 2
states that for the purposes of Section 3(3) “the additional duty
leviable on any imported article specified in column (2) of the
Table annexed hereto shall be equal to the excise duty for the
time being leviable on the material specified in the
corresponding entry in column (3) of the said Table to the extent
that material is used in the manufacture of the imported
article”. The Table reads thus :
” TABLE
———————————
S.No. Name of article Name of
material
———————————
(1) (2) (3)
———————————
1. Fabrics containing more than 10 Synthetic
per cent by weight of synthetic fibre and
fibre or yarn. yarn.
2. ………………………….. …………..”
———————————
4. In exercise of the powers conferred by Rule 8 of the Central
Excise Rules, 1944, the Central Government, by Notification
No.55/78 dated 1st March, 1978, (hereinafter called “the said
notification”) exempted textured yarn of the description
specified in column (2) of the Table thereto falling under sub-
item II (i)(b) of Item No.18 of the First Schedule to the Central
Excises and Salt Act, 1944, from so much of the excise duty
leviable thereon as was in excess of the duty specified in the
corresponding entry in column (3) of that Table. The Table read
thus :
THE TABLE
“
———————————
S.No. Description Rate of duty
———————————
(1) (2) (3)
———————————
1. Textured yarn produced out The duty for the time
of Base yarn being leviable on the
Base yarn if not already
paid plus five rupees
per kilogram.
2. Other textured yarn – (Rs. per kilogram)
(a) Polyamide (nylon)
Textured yarn –
(i) below 38.5 deniers 63.80
(ii) 38.5 deniers and above 56.80
but below 88 deniers
(iii) 88 deniers and above but 49.80
below 121 deniers
(iv) 121 deniers and above but 42.80
below 165 deniers
(v) 165 deniers and above 24.60
xxx xxx xxx
———————————
Explanation 1. – “base yarn” means yarn falling under sub-item
II(i) (a) of Item No. 18 of the First Schedule to the Central
Excise and Salt Act, 1944 (1 of 1944), from which textured yarn
has been produced;
5. The Tribunal noted the contention on behalf of the appellant
that the yarn in question fell under S.No.1 aforementioned and
not under S.No. 2(a)(v), and the basis for the contention,
namely, that the supplier of the imported goods had bought base
yarn and subjected it to the process of air-bulking to produce
the textured yarn that was imported. The Tribunal stated,
counsel “contends that the description of the article relevant to
the present case is textured yarn produced out of base yarn and
not other textured yarn in notification 55/78. This contention
has, in our opinion, substance”. The Tribunal went on to add,
“The description of the article in the First Schedule to
the Central Excises and Salt Act is Textured yarn. ‘Textured
yarn produced out of base yarn’ is merely descriptive of
process of manufacture. For duty purposes, notification
No.55/78 describes and fixes a different concessional rate of
duty for textured yarn produced out of base yarn separately from
other textured yarn. This itself shows that textured yarn is
liable to excise duty at different rates, depending on the
process of manufacture. The excise leviable on textured
polyamide yarn of above 750 deniers would depend on the process
of manufacture. It is Rs.6.50 (SI.No.3(b)(vi) of notification
No.38/75 CE) plus Rs.5/- per kg. (Col. 3 against Sl. No.1 of
notification 55/78 CE), if such textured yarn is produced out of
base yarn. If it is produced otherwise, the rate of duty is
Rs.24.60 per kg. (Sl. No.2(a)(v) of notification 55/78). In such
a situation, the yarn content of the imported fabrics would
attract duty at the higher rate viz., Rs.24.60 per kg. (plus
special excise duty as may be applicable).”
6. Learned counsel for the appellants submitted that once the
Tribunal had come to the conclusion that the imported goods were
textured yarn produced out of base yarn, only that amount of
additional duty was payable thereon as was specified against the
description “textured yarn produced out of base yarn” in the Table of the said notification. There was no question then of
requiring the appellants to pay additional duty at a rate
specified in the notification for “other textured yarn”.
7. The learned Additional Solicitor General, appearing for the
Revenue, placed reliance upon the Explanation to Section 3(1).
In his submission, the imported goods were textured yarn in
respect of which the said notification prescribed different rates
of duty; therefore, under the Explanation to Section 3(1), the
highest duty thereon was that which was payable by the
appellants.
8. Section 3 requires that an article imported into India shall
be liable to additional duty equal to the excise duty for the
time being leviable on a like article if produced or manufactured
in India. The expression “the excise duty for the time being
leviable on a like article if produced or manufactured in India”
has been defined by the Explanation to Section 3(1). It means
the excise duty for the time being in force which would be
leviable on a like article produced or manufactured in India. If
a like article is not produced or manufactured in India, the
expression means the excise duty which would be leviable on the
class or description of articles to which the imported article
belongs; and where such excise duty is at different rates, the
expression means the highest rate of duty. Section 3(3) enables
the Central Government, in the public interest, to levy on an
imported article such additional duty as would counterbalance the
excise duty leviable on raw materials, components and ingredients
of the same nature as are used in the manufacture of such article
or are similar thereto. The Central Government may, by
notification in the Official Gazette, direct that an imported
article shall bear additional duty representing such portion of
the excise duty leviable on such raw materials, components and
ingredients as it may by rules determine. It is in exercise of
the power conferred by Section 3(3) that the Additional Duty
Rules, 1976, have been framed and they specify that additional
duty shall be imposed on fabrics containing more than 10 per
cent by weight of synthetic fibre or yarn which shall be
equivalent to the excise duty leviable on the synthetic fibre
and yarn used therein.
9. Insofar as the imported goods are concerned, they fall, as
the Tribunal has found, in the category of “textured yarn
produced out of base yarn”. In respect of “textured yarn produced
out of base yarn” the excise duty that is leviable is that
specified against that description in the Table of the said
notification. The Explanation to Section 3(1) says of an article
which is not produced or manufactured in India that the
expression “excise duty for the time being leviable on a like
article if produced or manufactured” means that duty which would
be leviable on the class or description of articles to which the
imported article belongs. Since, admittedly, the imported goods
fall within the description “textured yarn produced out of base
yarn”, the additional duty is payable thereon is that specified
against that description in the Table of the said notification and they cannot be made liable to additional duty at the rate
specified for “other textured yarn”, that is to say, for textured
yarn that does not fulfill the description of being produced out
of base yarn.
10. We are fortified in the view that we take by the decision of
this Court in Thermax Private Ltd. v. Collector of Customs
(Bombay) New Customs House, JT 1992 (5) SC 281 = (1992) 4 S.C.C.
440. The relevant paragraph is reproduced:
“Shri A.K. Ganguly, on behalf of the Revenue, raises
a contention that, even assuming that the goods fulfil
the conditions of the notification referred to earlier,
the CVD rate applicable would be 80 per cent by
virtue of the Explanation to Section 3(1) of the C.T. Act.
He submits that the goods imported by the assessee as “parts
of refrigerating and air-conditioning equipment”. They are
chargeable at different rates of duty accordingly as they fall
under item with serial No.4 (80 per cent) or that with serial
No.5 (nil) or that with serial No.6 (20 per cent) or that
with serial Nos. 7 and 8 (25 per cent). In such a situation,
he says, the provisions of the Explanation to Section 3(1) are
attracted and hence the assessee will be liable to duty at
the highest rate of 80 per cent. We are loth to permit the
department to raise at this stage a fresh contention not
taken before the Tribunal or earlier. That apart, we do not
think it is well founded. It is no doubt true that Item 29-A
of the Schedule to the C.E. Act is very wide and covers
various articles. The notification also deals with various
categories of articles falling under that item. But there
has been no dispute at any stage that the goods we are
concerned with fall under item with serial No.8(3) of the
notification. So far as the category of goods is concerned,
there is only one rate of duty mentioned in the notification.
The fact that certain other parts of refrigerating and air-
conditioning appliances and machinery may fall under item
with serial No. 4(3) or elsewhere cannot attract the higher
duty on the goods presently under consideration. The
Explanation to the notification (sic Section 3(1)) is
applicable only where goods of exactly the same description
attract different rates of duty. See, in this connection, the
decisions on analogous provision in Collector of Customs v.
Western India Plywood Manufacturing Co. Ltd., 1989 Supp. (2)
S.C.C. 515 and Collector of Customs v. Hansur Plywood Works,
JT 1989 (4) SC 393 = 1989 Supp. (2) S.C.C. 520. We,
therefore, reject this contention. (Emphasis supplied.)
11. We are, therefore, of the view that the Tribunal was in
error and that the judgment and order under appeal must be set
aside.
12. The appeal is allowed. The judgment and order under appeal
is set aside.
13. No order as to costs.
