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PETITIONER: M/S.  BOMBAY OIL INDUSTRIES PVT.  LTD.

       Vs.

RESPONDENT: UNION OF INDIA & ORS

DATE OF JUDGMENT06/12/1994

BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) SAHAI, R.M. (J)

CITATION:  1995 SCC  Supl.  (1) 295 JT 1995 (3)    64  1994 SCALE  (5)97

ACT:

HEADNOTE:

JUDGMENT: MAJMUDAR, J.: 1.   These  appeals arise out of a common judgment  rendered by  the Customs, Excise & Gold (Control) Appellate  Tribunal New  Delhi,  by  which it disposed of ten  appeals  in  all. Civil  Appeal  Nos. 401313A of 1985 challenge that  part  of that  order  of  the Tribunal by which the  appeals  of  the common appellant, namely, M/s 67 Bombay  Oil  Industries  Pvt.  Ltd. were  dismissed  by  the Tribunal;  while  the  remaining  four  appellants  seek  to challenge  the other part of the Tribunal’s order  by  which four  appeals  moved by the Collector  of  Customs,  Bombay, against the concerned present appellants came to be  allowed by the Tribunal. 2.The  facts  leading to these appeals may be noted  at  the outset  to appreciate the grievance of the appellants.   All these appellants had imported tallow being bleachable  fancy tallow from foreign countries between 2.8.1976 and  2.9.1978 by  different consignments.  So far as common appellant  H/s Bombay  Oil  Industries Pvt.  Ltd. in C.A.  Nos.4013-13A  of 1985  is  concerned, it imported  bleachable  mutton  tallow while  the rest of the appellants imported bleachable  fancy tallow which according to them was not mutton tallow.  These imports were subject to customs duty under the provisions of the Customs Act, 1962.  As per the applicable customs tariff as  laid  down in the First Schedule to the  Customs  Tariff Act,  1975, the imported tallow was liable to  customs  duty under sub-heading of Heading No. 15-01/06 at the rate of  35 per  cent ad valorem.  A partial exemption was given by  the Central  Government from the payment of customs duty so  far as   imported   tallow  was  concerned   by   an   exemption Notification  dated 2nd August, 1976 being Notification  No. 141  -CUS/76 issued in exercise of powers conferred  on  the Central  Government by sub-section (1) of Section 25 of  the Customs Act, 1962.  The said Notification provided that  the

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Central  Government being satisfied that it is necessary  in the  public  interest so to do, exempts  tallow  having  the specifications  mentioned hereunder and falling  under  sub- heading  No.2 of Heading No. 15-01/06 of the First  Schedule to  the Customs Tariff Act, 1975(51 of 1975), when  imported into India, from payment of so much of that portion of  duty of  customs-leviable thereon which is specified in the  said First  Schedule as is in excess of 15 per cent  ad  valorem. The Notification further laid down the specifications of the exempted  tallow.  It was provided that the imported  tallow meeting the indicated specifications was entitled to partial exemption  of customs duty to the extent of 30 per  cent  ad valorem.  These specifications read as under:                "SPECIFICATIONS               i.    Moisture and Insoluble impurities               percent by weight, max.                    1.0               ii.   Colour  in  a lin cell on  the  Lovibond               scale expressed as Y=5 R not deeper than    20               iii. Saponification Value          192 to 202               iv. lodine Value (wijs)           32 to 50               v. Acid Value, Max                         10               vi.   Unsapponifiable   matter,   percent   by               weight, Max                                0.5               vii.  Titre of fatty acids oC        40 to 49" The said Notification was amended later on by a Notification dated 2.9.1978 whereby specification No. 2 was deleted  from the  earlier Notification dated 2.8.1976 being  Notification No.  141-CUS-76.   The said latter  Notification  dated  2nd September,   1978   being   Notification   No.   168/F   No. 370/24/78/Cus  1  provided that in exercise  of  the  powers conferred  by sub-section (1) of Section 25 of  the  Customs Act, 1962 (52 of 1962), the Central Government be- 68 ing satisfied that it is necessary in the public interest so to   do  hereby  makes  the  following  amendment   in   the Notification of the Government of India in the Department of Revenue,  and Banking No. 141Customs dated the  2nd  August, 1976,  namely,  "In the Specifications mentioned  under  the said  Notification,  item  (ii)  and  the  entries  relating thereto shall be omitted.  " 3.   It,  therefore,  became  clear that  the  importers  of tallow   after   coming  into  operation   of   the   latter Notification  dated 2nd September, 1978 had not  to  satisfy the  customs authorities that their imported tallow met  the requirement   of   erstwhile  item  No.2  in   the   earlier Notification  of  2.8.1976.  We have seen  that  the  second condition of the Notification dated 2.8.1976 referred to the colour  of imported tallow.  The imported tallow  under  the earlier  Notification  was  required to stand  the  test  of having  colour  not deeper than 20 in one inch cell  on  the lovibond  scale as Y+5R.  It is this requirement  which  the latter  Notification gave up. It is not in  dispute  between the  parties  that import oftallow  after  the  Notification dated  2.9.1978 having given partial exemption upto  30%  ad valorem,  customs duty on imported tallow covered even  that imported  tallow which did not meet any  colour  requirement but  so  far  as present proceedings are  concerned  as  the appellants  had imported tallow during the time the  earlier Notification dated 2.8.1976 held the field, they had to meet the  colour  specification No.2.  The  appellants  contended before  the Customs Authorities that they were  entitled  to get refund of customs duty paid by them in excess of 15  per cent  as  their imported tallow  satisfied  Notification  of Customs dated 2.8.1976. The samples of imported tallow  were examined  by  Custom House and were found  not  meeting  the

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colour  test specification as laid down by the  Notification dated 2.8.1976, Consequently, their request was rejected  by the Assistant Collector of Customs.  They went in appeal  to the Collector of Customs.  The Collector of Customs, Bombay, took  the  view  that so far as common  appellant  in  Civil Appeal   Nos.4013-13A  of  1985,  namely,  M/s  Bombay   Oil Industries Pvt.  Ltd. was concerned, it had imported  tallow on  4.4.1978 when the earlier Notification 14 1 -Cus/76  was operative.   The Custom House had tested the samples by  ap- plying  the correct method of I.S. 548 and as it  was  found that  the tallow imported by M/s Bombay Oil Industries  Pvt. Ltd.  did  not  satisfy  the  colour  specification  as  per condition  No.  2 of Notification of  1976,  the  appellants cannot  be said to have earned any exemption under the  said Notification  on  the imported tallow  and  accordingly  the appeals of the appellant, M/s. s Bombay Oil Industries  Pvt. Ltd.,  were  dismissed.  However, so far as appeals  by  the remaining four appellants in the present case are concerned, the Appellate Collector took the view that these  appellants had  imported  tallow  which  were  not  mutton  tallow  but bleachable  fancy  tallow which was a mixture  of  beef  and other  animal  tallow  and  so far  as  these  imports  were concerned,  proper tests were not carried out by the  Custom House.    The   Appellate   Collector   noticed   that   the specifications  given  by  Customs were word  for  word  and figure for figure in IS 887 for Type No. 1 and that referred to  mutton tallow and that the method prescribed for  mutton tallow as per IS 548 could not have been applied for testing colour of imported tallow of these remaining four appellants and that the correct method for testing samples should  have been the method recom- 69 mended  by American Oils Chemists’ So ciety wherein  samples should have been first bleached and then got tested.  In vie of  the Appellate Collector as the goods imported  by  these four appellants were not Indian tallow for which the IS  887 and  IS  548  were  designed but  foreign  tallow  and  most probably  beef  tallow, it was reasonable to  say  that  the standard  of the tallow should be gauged in accordance  with the grades or standards prescribed by the American Fats  and Oil   Association   and  if  that  was   done   the   colour specification  as found in condition No. 2 of the  Notifica- tion  was  likely to be satisfied and for that  purpose  the samples  were  required  to be re-tested  by  following  the method  recommended by American Oils Chemists’  Society  and accordingly  the  remaining four respondents’  appeals  were allowed  and the proceedings were remanded to the  Assistant Collector directing that the test should be done only  after refining  aiid  bleaching the samples as prescribed  in  the said American Oils Chemists’ Society Official’ method Cc Sd- 55.   It was further observed that if it passes  the  colour test  on  such refining and bleaching, the  benefit  of  No- tification 141 -Cus/76 shall be extended otherwise not. 4.The  common  appellant, M/s Bombay  Oils  Industries  Pvt. Ltd.,  being  aggrieved  by  the  order  of  the   Appellate Collector dismissing its appeal preferred further appeals to the Customs, Excise & Gold (Control) Appellate Tribunal.  So far as remaining four appellants arc concerned, the  Central Government  issued  notices  under  Section  131(3)  of  the Customs Act, 1962, whereby all these appellants were  called upon  to show cause why the orders passed by  the  Appellate Collector  should  not be recalled and annuled.   After  the cstiblishment of the Tribunal these proceedings were  trans- ferred  to the Tribunal, They were registered as appeals  as taken  out  by the Collcctor of Customs, Bombay.   As  noted

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earlier  the two appeals of M/s Bombay Oil  Industries  Pvt. Ltd.  and  the  four appeals of  the  Collector  of  Customs against  the  remaining four present appellants  were  heard together  by the Tribunal along with other four appeals,  In all  ten  appeals were disposed of by the  common  judgment. The  Tribunal  came  to  the  conclusion  that  the   colour specification  as  laid  down  by  the  Notification   dated 2.8.1976  being  No.  141 Cus/76 was not  fulfilled  by  the concerned  imports  of the tallow of appellants  herein  and that,  therefore, these imports failed to earn  the  partial exemption to the extent of 30 per cent as claimed by them on these imports under the said Notification.  It was.  further found by the Tribunal that a common colour specification was laid down as condition No.2 under the said Notification  and it  referred to all types of tallow whether  mutton  tallow, beef tallow or other animal tallow and a common test had  to be  resorted  to for testing the samples of  these  imported tallow  and  all these imported tallow did not  satisfy  the colour  specification  of condition No. 2 of  the  exemption Notification.  The Tribunal further observed that it was not open  to  the  Assistant Collector to lay  down  a  separate condition  for the said Notification that the sample  should be  tested by American method and that the  Indian  Standard method  as  adopted by the Custom House  for  testing  these samples  cannot  be  found  fault  with,  consequently,  the appeals  filed by M/s.  ’ Bombay Oil Industries Pvt.   Ltd., were dismissed and appeals filed by the Collector of Customs against  the remaining four appellants were allowed.   Being aggrieved by the aforesaid common order 70 of  the Tribunal in the respective appeals,  the  appellants have  preferred appeals under Section 131(3) of the  Customs Act, 1962. 5.These  appeals were set down for final hearing before  us. We have heard learned counsel for the contesting parties  in support of their respective cases. 6.Learned   counsel  for  the  appellant,  M/s  Bombay   Oil Industries  Pvt.   Ltd.,  submitted that  the  Tribunal  had committed  a  patent  error  in taking  the  view  that  the imported  mutton  tallow of the appellant did not  meet  the colour specification of the exemption Notification that  the Custom House had wrongly followed the IS 549 for testing the appellant’s samples and it should have followed the official method Cc 8d- 55.  In any case the matters were required  to be  remanded as the appellant had been denied the  principle of natural justice and fair play.  Learned counsel appearing for the remaining appellants submitted that the tallow which they imported was bleachable fancy tallow and was not mutton tallow  and,  therefore, as rightly held  by  the  Appellate Collector  the IS 548 meant for mutton tallow testing  could not have been adopted by the Custom House for testing  their samples of imported tallow and that the correct method which should  have  been  adopted was  method  prescribed  by  the American  oil Chemists’ Society and if that was done in  all probabilities their samples would have satisfied the  colour test  of  being not deeper than 20.  It was  next  contended that  exemption Notification of 1976 nowhere lays  down  any particular method for testing colour of samples of  imported tallow and especially when imported tallow came from foreign countries  specially  America and  Australia,  the  American method  of  testing, colour specification should  have  been adopted  as  Appellate Collector had done.  It  was  further submitted that even if Indian testing method was adopted  by following  IS 548, the testing method should have been  done on  one inch cell and not on half inch cell as was  done  by

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Custom  House  so far as their samples were  concerned.   In these  circumstances  the  Tribunal  was  not  justified  in allowing  the  appeals.   These  appeals  should  have  been dismissed. 7.Having  given  our  anxious  consideration  to  the  rival contentions, we have reached the conclusion that there is no substance in any of the appeals. 8.It  has to be kept in view that as per Section 12  of  the Customs Act. duties of customs shall be levied as  specified in the Customs Tariff Act for goods imported in or  exported out  ’of  India.  It is not in dispute between  the  parties that  the imported tallow attracted the customs duty as  per the  Customs Tariff Act, 1975 at the rate of 45 per cent  ad valorem  but the applicants staked their claim on the  basis of  the Notification issued by the Central Government  under Section  25 of the Act granting partial exemption from  duty on  such imported tallow.  It is obvious that  whatever  ex- emption is granted under Notification may be either absolute or subject to such conditions which have got to be fulfilled by   the  importers  before  earning  such  exemption,   The Notification 141-cum/76 which we have earlier referred  does not  grant such 30 per cent exemption in absolute terms  but such   exemption  is  based  on  fulfilment  of   conditions mentioned therein about the specification of imported tallow and  if the imported tallow does not meet the  specification required it cannot earn the exemp- 71 tion.   It  is  trite  to say that  in  order  to  earn  the exemption  the  person claiming the exemption  must  satisfy that  his imported item has fulfilled all the conditions  of the exemption Notification as such exemptions are granted in public   interest.   In  connection  with   such   exemption Notification  issued under Section 25 of the Customs  Act  a Bench  of this Court in case Union of India & Ors. vs.   M/s Jalyan  Udyog & Anr. (A.I.R. 1994 SC 88),  speaking  through B.P. Jeevan Reddy, J., has made the following observations               "An  exemption granted may be an absolute  and               or  subject  to  such conditions,  as  may  be               specified in the notification and further that               the conditions specified may relate to a stage               before  the clearance of goods or to  a  stage               subsequent to the clearance of goods.  S.25(1)               is  a  part  of  the  enactment  and  must  be               construed   harmoniously   Kith   the    other               provisions of the Act.  The power of exemption               is   variously   described   as    conditional               legislation and also as a species of delegated               legislation.  Whether it is one or the  other,                             it  is a power given to the Central  Governmen t               to  be exercised in public interest.   Such  a               provision  has  become a standard  feature  in               several  enactments and in particular,  taxing               enactments.  It is equally well settled by now               that  the  power of taxation can be  used  not               merely   for  raising  revenue  but  also   to               regulate   the   economy,  to   encourage   or               discourage  as the situation may call for  the               import and export of certain goods as also for               serving  the social objectives of  the  State.               Since the parliament cannot constantly monitor               the  needs of and the emerging trends  in  the               economy and is in no position to engage itself               in  day-to-day  regulation and  adjustment  of               import-export  trade  accordingly,  power   is

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             conferred  upon  the  Central  Government   to               provide  for  exemption from duty  of  goods0.               either wholly or partly,                 and  with or without conditions,  as  may be               called  for in public interest.   Reading  any               limitation  into this power is not  warranted.               If  the  public interest demands  s  that  the               exemption  should  be  absolute,  the  Central               Government  can  do  so.   Similarly,  if  the               public interest demands that exemption  should               be granted only subject to certain  conditions               it can provide such conditions.  Then again if               the  public interest demands  that  conditions               specified should relate to a stage  subsequent               to  the date of clearance it can do  so.   The               guiding factor is the public interest." 9.Once  the appellants admittedly imported tallow into  this country,  on account of the charge by the Customs Act  under Section  12, their imported tallow attracted  customs  duty. It is for them to show how instead of paying full duty  they get  exemption  to the tune of 30 per cent pursuant  to  the Notification 141-cus/76.  For that purpose they have to show that the imported tallow have met colour specification as it was a notification granting exemption on conditions and  did not grant exemption in absolute terms.  It is not in dispute that   out   of  seven  specifications  mentioned   in   the Notification,  six  were  met by them  but  only  on  colour specification  No.  2 they met their  waterloo.   He  Custom House which tested the samples on imported tallow, submitted by the appellants, found that the colour specification  laid down in condition No. 2 was not satisfied by these  imported tallow  and, therefore, on these imported  tallow  exemption could  not  be granted as claimed.  If the  appellants  felt that  the findings of the Custom House were not  correct  it was  open  to them to get the samples cross  tested  through their experts and to Jay evidence in that connection  before the authorities as burden was entirely on them to show  that they had satisfied all the conditions of Notification with a view 72 to earnings, the exemption to the extent of 30 per cent  of’ import  duty on their imported tallow.  They did nothing  of the  kind.  The Custom House followed the method  of  Indian Standards  Institution  for  testing  these  samples.    Our attention  was invited to booklet "Indian Standard,  Methods of  Sampling and Test for Oils and Fats" as well as  booklet of  "Indian  Standard, Specification for Animal  Tallow"  is sued  by the Indian Standards Institution So far  as  animal tallow  is concerned, the booklet dealing with test IS  887- 1977  in  paragraph  8.1 lays down that the  test  shall  be carried out according to IS 548 part-1 1964.  IS 548 Part  1 1964  deals  with method of sampling and test for  oils  and fats.  Thus, there appears to be a common test prescribed by the Indian Standards Institution being IS 548 Part 1 for all types  of  animal  tallows.  That was the  test  adopted  by Custom  House and it was found that none of the  samples  of imported tallow as submitted by the appellants fulfilled the requirement   of   condition   No.  2   of   the   exemption Notification.   ’In  other words, their colour in  one  inch cell on lovibond scale, expressed as Y + 5R was deeper  than 20.  Consequently, the imported tallow whether mutton tallow or  beef  tallow  or any other tallow as  covered  by  these consignments of the appellants did not satisfy condition No. 2 of colour as laid down by Notification 14 1 -Cus/76  dated 2.8.1976. On these findings reached by the Custom House  and

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when no effort to rebut the same was made by the appellants, the   conclusion   was  inevitable   that   these   imported consignments   of   tallow   during   the   time   exemption Notification  dated 2.8.1976 was holding the field  did  not earn  the  exemption under the said  Notification  from  the customs  duty  to the extent of 30 per cent  and  they  were liable to pay full customs of duty.  This finding is rightly reached  by  the  Tribunal on facts and  calls  for  no  in- terference.   So  far as submission of learned  counsel  for appellant M/s Bombay Oil Industries Pvt.  Ltd., is concerned to  the  effect  that only because  the  appellant  imported mutton tallow, IS 548 could not have been resorted to cannot be  accepted in view of the Indian  Standards  Institution’s method for testing animal tallow which has to follows IS 548 as seen earlier.  It may also be noted that the Tribunal has observed in paragraph 25 of its judgment that M/s Bombay Oil Industries  Pvt.   Ltd. did not question  the  test  result. Consequently,  it  is too late for it to  make  a  grievance about it in these proceedings.  So far as the remaining four appellants are concerned, the Tribunal rightly held that  it was not open to the Appellate Collector to presume that  for imported tallow which was not mutton tallow and which  would be a mixture of beef and other tallows, the American  method of testing should have been adopted by the Custom House.  It is  true that the Notification did not specify as  to  which method  should  be followed.  But it has to  be  appreciated that  the  imported tallow was to be utilised  in  India  by Indian  manufacturers and had ultimately to join  the  main- stream  of  consumer  goods either as such  or  after  being utilised in production of consumer goods.  When they are  to be  imported in India and when they claim exemption for  the condition  of Notification issued by the Central  Government under  Section 25 of the Customs Act, the test for  checking their colour as laid down by the exemption Notification  has necessarily to be as per the Indian standard method and test laid down by the Indian Standards Institution.  In this con- nection,  we may refer to the decision in the case Union  of India v. Delhi cloth & 73 General  Mills, (1963 Suppl.) (1) SCR 586) which  has  taken the  view  that  if method of testing any  item  of  central excise  tariff  is  not  mentioned,  then  Indian  Standards Institution’s method should be applied.  Learned counsel for the   appellants  submitted  that  strictly  speaking   this judgment  may not apply to the facts of the present case  as we  are  not concerned with any central excise  tariff.   Be that as it may, the fact remains that the imported goods  on which the appellants claim exemption from customs duty  have to  be ultimately disposed of in India and when  the  Indian Government grants exemption on condition, the method to test whether  the  exemption is earned or not by  these  imported goods would obviously be the Indian method.  Learned counsel for  the  respondents submitted that if a converse  case  is taken into consideration and if Indian goods are exported to foreign  countries  and if they have to earn  any  exemption from  duty imposed by foreign countries on such  imports  in their countries and if colour specification of such imported material is to be found out, the country of import,  namely, the  foreign  country  would insist that the  method  to  be adopted for testing the imported goods should be the  method of testing adopted by the country and it would be no  ground to  say that the Indian goods imported in foreign  countries meet the requirement of the Indian specification though they may  not meet the requirement of specification laid down  by the importing counties, for the simple reason that they have

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to meet the requirements of the importing country and not of India  which is the exporting country.  In the present  case also, therefore, when the importers are Indian they have  to meet the requirement of exemption Notification issued by the Central Government.  These imports must satisfy the test  as laid down by the exemption Notification issued in India  and when the Notification is silent about the method for testing the colour of imported items then the testing method adopted by  the Indian Standards Institution would of  necessity  be applicable.   It was then contended by the  learned  counsel for  the appellants in these remaining four appeals that  IS 548  Part  1  was to be applied for testing  the  colour  of tallows.   The colour specification by the Notification  was required to be tested on one inch cell on the lovibond scale expressed as Y + 5R.  While in the present case the  samples were tested on one half inch cell and, therefore, the Custom House results should not be relied upon.  It is not possible to agree with this contention.  As we have discussed earlier as  the appellants wanted refund of duty on  their  imported goods, they should have made efforts to rebut the result  of Custom  House.  That they did not do but even that apart  as noted in paragraph 38 of the impugned judgment the  Tribunal found that even when lovibond one inch cell was adopted,  if the  imported tallow was tested in unbleached form in  which it was imported then its colour deepening would be 34 to  36 which  would  be  more than 20 as  required  by  the  second condition of the colour specification.  The main argument of the  appellants  was that American method should  have  been followed  as  observed by the Appellate Collector  when  the exemption Notification is silent about the said method.  We, therefore, concur with the view of the Tribunal that  there, was  no occasion to test the appellant’s samples  of  tallow after bleaching as that was not the method of IS 548 Part  1 which  was holding the’ field and as such  prebleaching  and refining  could not be done pursuant to the American  method which 74 was not applicable to the facts of the present case and even by  taking one inch cell testing on lovibond IS  548  method would have resulted in the samples showing colour  deepening to the extent of 34 to 36 on the basis of Y + 5R which would not satisfy condition No. 2. The appellants cannot have  any real grievance in this connection. 10.  Before  parting  we  may note  one  submission  of  the learned  counsel.   They  submitted  that  laying  down   of condition  No. 2 in Notification dated 2.8.1976 was a  clear error  on  the  part of the  Central  Government  which  was corrected by them by the latter Notification dated  2.9.1978 and,  therefore,  the  latter  Notification  be  treated  as clarificatory  Notification read with above Notification  of 2.8.1976.  It  is  not possible to  agree  as  the  disputed imports  with which we ate concerned are prior to  2.9.1978. They are, therefore, covered by the earlier Notification  of 1976.   It  is  true  that  the  Tribunal  by  noting  these submissions  has observed in paragraph 3 5 of  the  judgment that  the  colour specification was an error  and  that  the error be removed but for that reason it could not ignore the colour  specification when it was the part of the  law.   We entirely  agree with the view of the Tribunal that  even  if the  Central Government corrected its error about  condition No.  2  from 2.9.1978 by issuing a fresh  Notification,  the earlier colour specification requirement remained  operative for  imports  made  by  the  concerned  importers  prior  to 2.9.1978  when the earlier Notification dated  2.8.1976  was holding  the field.  The latter Notification cannot be  said

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to be merely clarificatory Notification nor can it have  any retrospective,  effect.   It is a fresh  Notification  lying down  fresh condition deleting the earlier condition  No.  2 about the colour specification.  Hence this submission is of no avail to the learned counsel for the appellants. 11.  For  all these reasons, there is no substance in  these appeals  and they are accordingly dismissed.  In  the  facts and circumstances of the case, there will be no order as  to costs. 77