P.C. Jain, Member (T) - (1.) SINCE questions of law have been raised arising out of a common order-in-appeal, a common order on all the three reference applications is being passed. The three questions which have been framed by the applicants are as follows :- (i) Whether goods entering the territorial waters of India at the time when they were totally exempt from customs duty (and not additional duty) became chargeable to customs duty if at the time of their removal the exemption from customs duty is withdrawn? (ii) Whether the Tribunal erred in ignoring the principle of promissory estoppel qua Notification dated 15.3.1979 in the instant case and particularly with reference to facts and circumstances prevailing? (iii) Whether the goods in respect of which bills of entry were presented after the issue of the Notification 205-CUS/80 dated 16.10.1980 by which total exemption from Customs duty granted under Notification 66-CUS dated 15.3.1979 as amended and which was to remain in force till 31.3.1981, was withdrawn and period curtailed to 16.10.1980 would be governed by the earlier Notification or the letter? Question at S.No (i) above is applicable only to the first reference application i.e. arising out of order-in-appeal No.CD/SB/148/83-C. This question would not be applicable to the remaining reference applications.
(2.) Learned advocate Shri P.G. Gokhale appearing for the applicants has argued that the questions raised above are all questions of law and should be referred to the High Court in terms of Section 130 of the Customs Act, 1962. Learned advocate's attention was drawn whether the impugned order of the Tribunal issued under Section 129-B of the Customs Act relates among other things to the determination of any question having a relation to the rate of duty of Customs or to the value of goods for the purposes of assessment ; if so, whether the reference to the High Court would not lie in view of the exclusion clause mentioned in Section 130(1) of the Customs Act. Learned advocate in reply to this query has stated that the question involved herein is whether Section 15 of the Customs Act would be applicable in the instant case when the duty was not leviable in the first instance in view of the notification granting full exemption to the goods from Customs duty when the ship carrying the goods entered into territorial waters of India. In other words, he stated that the question involved herein is whether the basic Customs duty was at all leviable on the goods in the first instance. We have carefully considered this plea of the learned advocate for the applicant. The question of leviability to basic duty of Customs is an uncalled for hair splitting by the learned advocate bacause there is no such concept as basic duty of customs or other than basic duty of Customs. All duties of Customs imposed under the Customs Tariff Act or under any other law for the time being in force have been made leviable by Section 12 of the Customs Act, 1962. All such duties are essentially duties of Customs and one cannot make a distinction between basic duty of Customs or non-basic duty of Customs, as has been held by the Hon'ble Supreme Court in the case of Khandelwal Metal and Engineering Works [1985 (20) ELT 222 (SC)] that additional duty of Customs under the Customs Tariff Act is also a duty of Customs. This decision of Supreme Court has already been referred to in the Tribunal's impugned order and this decision has not been taken into account in the decision of Bombay High Court in the case of Apar Private Ltd. v. Union of India [1985 (22) ELT 644 (Bom;)] referred to by the applicant during the course of hearing as well as during the course of hearing when the impugned order was passed. In view of this settled position of law regarding no distinction between basic duty of Customs and other duties of Customs so far as leviability under Section 12 is concerned, the question of law would not arise at all in this case inasmuch as it is an admitted position that the goods were leviable to the additional duty of Customs at the time of their importation into India. As regards the other distinction that the question in the application relates not to the rate of duty of Customs but to the leviability of duty of Customs is another instance of hair splitting. The question whether any goods are liable to Customs duty or not would necessarily involve the rate of duty leviable on those goods. If it is held that the duty of Customs is not leviable at all it only means in effect that it carries nil rate of duty or that it carries nil duty. In fact, this proposition has already been decided by the Tribunal in the case of Anil Starch Products Ltd., Ahmedabad v. Collector of Central Excise, Ahmedabad [1985 (21) ELT 306-Tri.] Extract of para 31 from the said report is reproduced below :- "Shri Dohlakia sought to draw a distinction between a 'nil' duty and non-leviability of duty. This could perhaps be argued as a proposition in abstract logic, but again having regard to the scheme of the provisions relating to the Tribunal, it would lead to illogical legal position, a case where one had to choose between a 10% rate of duty under the tariff and a 'nil' rate of duty under an exemption notification would attract the provisions relating to a Special Bench and an appeal direct to the Supreme Court, while a case where one had to choose between a 10% rate of duty and non-leviability of duty would not. We do not think that we would be justified in adopting such an anomalous interpretation; when there is available another interpretation which is not plausible but also confers on the assessee the benefit of consideration by a Special Bench and an appeal direct to the highest Court in the land." In view of the foregoing discussion, no doubt remains that the impugned order is one covered by the exclusion clause of Section 130 of the Customs Act, 1962 and therefore, there is no provision for a reference to High Court in the instant case. The other two questions which are common to all the 3 reference applications have been admitted by the applicant/ appellant in the impugned order that these cannot be decided by the Tribunal and these questions can be decided only by a High Court in its writ jurisdiction. Accordingly, these questions also do not arise out of the impugned order.
(3.) ACCORDINGLY, the reference applications are rejected.s;