AKBAR BADRUDIN GIWANI Vs. COLLECTOR OF CUSTOMS BOMBAY
LAWS(SC)-1990-2-14
SUPREME COURT OF INDIA (FROM: BOMBAY)
Decided on February 14,1990

AKBAR BADRUDIN GIWANI Appellant
VERSUS
COLLECTOR OF CUSTOMS,BOMBAY Respondents





Cited Judgements :-

SWASTIC RUBBER PRODUCTS LIMITED VS. UNION OF INDIA [LAWS(DLH)-1995-2-59] [REFERRED TO]
SAHARA INDIA AIRLINES VS. UNION OF INDIA [LAWS(DLH)-1997-11-63] [REFERRED TO]
SUPERCOM INDIA LIMITED VS. DIRECTOR GENERAL FOREIGN TRADE MINISTRY OF COMMERCE [LAWS(DLH)-2002-10-63] [REFERRED]
HARAN D MANUFACTURING CO VS. STATE OF GUJARAT [LAWS(GJH)-1993-2-8] [REFERRED TO]
B MOHAN KRISHNA VS. UNION OF INDIA [LAWS(APH)-1995-1-4] [REFERRED TO]
S N SUNDERSON MINERALS LTD VS. SUPTD PREVENTIVE C EX [LAWS(MPH)-1994-3-11] [REFERRED TO]
EXTRUSION VS. COLLECTOR OF CUSTOMS [LAWS(CAL)-1993-3-40] [REFERRED TO]
GAUGES INDUSTRIAL PRIVATE LIMITED BANGALORE VS. UNION OF INDIA [LAWS(KAR)-1997-6-21] [REFERRED TO]
Donald and Macarthy P LTD VS. Union of India [LAWS(CAL)-1996-7-31] [REFERRED TO]
Kumar Trading Co LLC VS. Union of India UOI [LAWS(CAL)-2001-5-34] [REFERRED TO]
SRF LTD VS. STATE OF M P [LAWS(MPH)-2004-11-51] [REFERRED TO]
N SUNDARESWARAN VS. STATE OF KERALA [LAWS(KER)-1992-7-46] [REFERRED TO]
COMEX COMPANY VS. COLLECTOR OF CUSTOMS MADRAS I [LAWS(MAD)-1997-2-10] [REFERRED TO]
ATLANTIC SHIPPING PVT LTD VS. UNION OF INDIA [LAWS(KAR)-2011-3-48] [REFERRED TO]
PANAMA CHEMICAL WORKS VS. UNION OF INDIA [LAWS(MPH)-1992-7-12] [REFERRED TO]
STATE OF ORISSA VS. NALANDA SALES CORPORATION [LAWS(ORI)-1991-9-27] [REFERRED TO]
GODREJ SOAPS LIMITED VS. MUNICIPAL CORPORATION OF GREATER BOMBAY [LAWS(BOM)-1991-2-41] [REFERRED TO]
KULKARNI BLACK AND DECKER LTD VS. UNION OF INDIA [LAWS(BOM)-1991-7-28] [REFERRED TO]
DODSAL P LTD VS. FOREIGN EXCHANGE REGULATION APPELLATE BOARD [LAWS(BOM)-2002-7-13] [REFERRED TO]
PHOENIX OVERSEAS P LTD VS. UNION OF INDIA [LAWS(BOM)-2002-12-14] [REFERRED TO]
SECURITIES and EXCHANGE BOARD OF INDIA VS. CABOT INTERNATIONAL CAPITAL CORPORATION [LAWS(BOM)-2004-3-156] [REFERRED TO]
TORRENT PHARMACEUTICALS LTD VS. EXCISE & TAXATION COMMISSIONER [LAWS(HPH)-2013-9-1] [REFERRED TO]
DEPUTY COMMISSIONERS VS. INDIAN RARE EARTHS LTD [LAWS(KER)-2002-3-81] [REFERRED TO]
N. SUNDERESWARAN VS. STATE OF KERALA [LAWS(KER)-1992-7-59] [REFERRED TO]
EXCISE AND TAXATION OFFICER VS. T.R. SOLVENT OIL PVT. LTD. AND ANR. [LAWS(P&H)-2010-9-284] [REFERRED TO]
SRIKANT BAGLA VS. COMMISSIONER OF CUSTOMS AND ORS. [LAWS(CAL)-2015-4-44] [REFERRED TO]
COLLECTOR CENTRAL EXCISE MADRAS VS. ITC LIMITED BIHAR [LAWS(SC)-2003-2-111] [REFERRED]
SUPER ELECTRONICS VS. COLLECTOR OF CUSTOMS BOMBAY [LAWS(SC)-2003-1-58] [REFERRED]
INSPECTING ASSISTANT COMMISSIONER OF AGRICULTURAL INCOME TAX AND SALES TAX VS. ISSAC PETER [LAWS(KER)-1998-1-29] [REFERRED TO]
CALCUTTA STEEL INDUSTRIES VS. COLLECTOR OF CENTRAL EXCISE [LAWS(CE)-1990-12-47] [REFERRED TO]
HIMANI LTD VS. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES CORPORATE DIVISION [LAWS(ST)-1998-9-5] [REFERRED TO]
|COMMISSIONER OF CENTRAL EXCISE VS. CONNAUGHT PLAZA RESTAURANT LTD [LAWS(SC)-2012-11-41] [REFERRED TO]
DAYAL ALLOY AND STEEL CASTINGS VS. COMMISSIONER OF CENTRAL EXCISE, RANCHI [LAWS(JHAR)-2014-1-49] [REFERRED TO]
RASHEED VS. MANAGING DIRECTOR [LAWS(APH)-2014-3-114] [REFERRED TO]
K. KRISHNAKUMAR VS. COMMISSIONER OF CUSTOMS [LAWS(CE)-2001-8-299] [REFERRED TO]
INDU NISSAN OXO CHEMICAL INDUSTRIES VS. COMMR. OF CUS., KANDLA [LAWS(CE)-2012-9-24] [REFERRED TO]
INDIA CAMPUS CRUSADE FOR CHRIST VS. COMMR. OF CUS. (GEN.), NEW DELHI [LAWS(CE)-2006-3-74] [REFERRED TO]
SIJ ELECTRONICS COMP. TECH. PVT. LTD. VS. COMMR. OF CUS., KOCHI [LAWS(CE)-2001-2-119] [FOLLOWED]
ITEL INDUSTRIES PVT. LTD. VS. COMMR. OF C. EX., CALICUT [LAWS(CE)-2004-7-189] [REFERRED TO]
SHAKSHAMBANA SILK EXPORTS (P) LTD. VS. C.C. (AIRPORT), CHENNAI [LAWS(CE)-2004-3-227] [REFERRED TO]
MOTOROLA INDIA LTD. VS. COMMISSIONER OF CUSTOMS, BANGALORE [LAWS(CE)-2001-3-171] [FOLLOWED]
LUFTHANSA CARGO INDIA VS. COMMISSIONER OF CUSTOMS, BANGALORE [LAWS(CE)-2005-6-86] [REFERRED TO]
NOEL AGRITECH LTD. VS. COMMISSIONER OF CENTRAL EXCISE, MANGALORE [LAWS(CE)-2005-11-109] [REFERRED TO]
H.M. LEISURE VS. COMMISSIONER OF CUSTOMS, BANGALORE [LAWS(CE)-2002-7-65] [REFERRED TO]
SYED IBRAHIM VS. COMMISSIONER OF CUSTOMS, BANGALORE [LAWS(CE)-2005-1-151] [REFERRED TO]
THUMBAY HOLDINGS PVT. LTD. VS. COMMISSIONER OF C. EX., MANGALORE [LAWS(CE)-2010-12-34] [REFERRED TO]
INTERNATIONAL AMUSEMENT LTD. VS. COMMISSIONER OF CUS., BANGALORE [LAWS(CE)-2005-12-97] [REFERRED TO]
STEEL AUTHORITY OF INDIA LTD. VS. COMMISSIONER OF CUSTOMS, CALCUTTA [LAWS(CE)-2000-5-136] [REFERRED TO]
PORCELAIN CRAFTS & COMPONENTS EXIM (P) LTD. VS. CC, CALCUTTA [LAWS(CE)-2000-11-176] [REFERRED TO]
MOMIN BAKSH VS. COLLECTOR OF CUSTOMS [LAWS(CE)-1991-4-7] [REFERRED TO]
MAKALI METALS PVT. LTD. VS. COMMISSIONER OF CUS., RAIGAD [LAWS(CE)-2000-9-149] [REFERRED TO]
S.R.F. LTD. VS. STATE OF M.P. & ORS. [LAWS(MPH)-2004-11-82] [REFERRED TO]
PREETI DAGA VS. CC, NEW DELHI [LAWS(CE)-2010-3-63] [REFERRED TO]
AJANTA OFFSET AND PACKAGING LTD VS. COMMISSIONER OF CUS. [LAWS(CE)-1999-12-99] [REFERRED TO]
SIRIS AQUA LTD VS. COMMISSIONER OF CENTRAL EXCISE [LAWS(CE)-1999-9-233] [REFERRED TO]
PRADEEP KUMAR VS. COMMISSIONER OF CUSTOMS [LAWS(CE)-1999-12-119] [REFERRED TO]
ITEL INDUSTRIES PVT. LTD. VS. COMMISSIONER OF C. EX. [LAWS(CE)-2003-10-281] [REFERRED TO]
AERO EXPORTS VS. CC [LAWS(CE)-1999-6-149] [REFERRED TO]
ESSAR OIL LTD. VS. COMMISSIONER OF CUSTOMS [LAWS(CE)-2003-3-264] [REFERRED TO]
OJASWI MARBLE AND GRANITE PVT. VS. COMMISSIONER OF C. EX. [LAWS(CE)-2003-1-144] [REFERRED TO]
WESTERN HATCHERIES LTD. VS. COMMISSIONER OF CUS. (APPEALS) [LAWS(CE)-2003-1-149] [REFERRED TO]
C.T. SCAN RESEARCH CENTRE (P) LTD. VS. COMMR. OF CUS., ICD [LAWS(CE)-2004-6-349] [REFERRED TO]
GATEWAY DISTRIPARKS LTD. VS. COMMISSIONER OF CUSTOMS [LAWS(CE)-2013-4-109] [REFERRED TO]
FEDERAL MOGUAL TPR (INDIA) LIMITED VS. STATE OF KARNATAKA [LAWS(ST)-2014-1-3] [REFERRED TO]
SCHLUMBERGER ASIA SERVICES LTD. VS. COMMISSIONER OF CUSTOMS (IMPORT) [LAWS(CE)-2009-3-201] [REFERRED TO]
HEALTH INDIA LABORATORIES VS. COMMISSIONER OF CENTRAL EXCISE [LAWS(CE)-2007-2-327] [REFERRED TO]
DENCAP ELECTRONICS (P) LTD. VS. ADDL. DIR. GENERAL OF FOREIGN TRADE [LAWS(DLH)-2005-5-227] [REFERRED TO]
GANGADHARAM APPLIANCES LTD. VS. CC [LAWS(CE)-2002-4-97] [REFERRED TO]
G.M. DIESEL LOCOMOTIVE WORKS VS. COMMISSIONER OF C. EX., ALLAHABAD [LAWS(CE)-2002-5-117] [REFERRED TO]
G.M. DIESEL LOCOMOTIVE WORKS VS. COMMISSIONER OF C. EX., ALLAHABAD [LAWS(CE)-2002-5-117] [REFERRED TO]
KARNATAKA STATE WAREHOUSING CORPORATION VS. THE COMMISSIONER OF SERVICE TAX [LAWS(CE)-2010-3-171] [REFERRED TO]
NOVEL DIGITAL ELECTRONICS VS. THE COMMISSIONER CUSTOMS (IMPORTS) AND ORS. [LAWS(MAD)-2015-3-377] [REFERRED TO]
RONAK DISTRIBUTORS (P) LTD. VS. COMMERCIAL TAXES OFFICER (ANTI EVASION) [LAWS(RAJ)-2015-1-308] [REFERRED TO]
DEE CEE EXPORTS AND ANR. VS. COMMISSIONER OF CUSTOMS [LAWS(CE)-2001-1-438] [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE VS. HINDUSTAN LEVER LTD. [LAWS(SC)-2015-8-56] [REFERRED TO]
SPECIAL DIRECTOR OF ENFORCEMENT VS. ANIL AGARWAL AND ANR. [LAWS(DLH)-2009-3-201] [REFERRED TO]
R K TRADING VS. COMMERCIAL TRADE TAX, APPELLATE TRIBUNAL [LAWS(ALL)-2014-10-198] [REFERRED TO]
SINGHLA SALES CORPN. PVT. LTD. VS. COMMISSIONER OF CUS., AMRITSAR [LAWS(CE)-2002-2-281] [REFERRED TO]
SARDA PLYWOOD INDUSTRIES LTD. AND ORS. VS. UNION OF INDIA (UOI) AND ORS. [LAWS(GAU)-1993-3-30] [REFERRED TO]
PARLE AGRO (P) LTD VS. COMMISSIONER OF COMMERCIAL TAXES, TRIVANDRUM [LAWS(SC)-2017-5-35] [REFERRED TO]
C L JAIN WOOLLEN MILLS VS. UNION OF INDIA [LAWS(DLH)-1994-9-96] [REFERRED]
JASWANT TRADERS VS. COMMISSIONER OF CUSTOMS [LAWS(P&H)-2008-8-207] [REFERRED]
COMMISSIONER OF CUS. (AIR CARGO EXPORT) VS. STUPA CONSULTING PVT. LTD. [LAWS(DLH)-2016-5-1020] [REFERRED TO]
STATE OF UTTARAKHAND VS. KUMAON STONE CRUSHER [LAWS(SC)-2017-9-108] [REFERRED TO]
M/S. AVECO TECHNOLOGIES PVT. LTD. VS. UNION OF INDIA [LAWS(APH)-2017-8-37] [REFERRED TO]
M G VENU VS. SBI LIFE INSURANCE COMPANY LIMITED [LAWS(KER)-2017-4-110] [REFERRED TO]
COMMISSIONER OF CENTRAL EXCISE VS. MADHAN AGRO INDUSTRIES (I) PVT LTD [LAWS(SC)-2018-4-51] [REFERRED TO]
TRUSTEES OF H.C. DHANDA TRUST VS. STATE OF MADHYA PRADESH & 3 OTHERS [LAWS(MPH)-2017-3-162] [REFERRED TO]
M/S HAMDARD (WAKF) LABORATORIES VS. COMMISSIONER OF COMMERCIAL TAXES [LAWS(ALL)-2018-7-1] [REFERRED TO]
M/S. SOUTHERN REFINERIES LTD. VS. COMMISSIONER OF CUSTOMS COCHIN-9 [LAWS(KER)-2018-11-441] [REFERRED TO]
SOM DISTILLERIES PVT. LTD. VS. EXCISE COMMISSIONER [LAWS(MPH)-2018-11-92] [REFERRED TO]
MILTON'S LTD. AND ORS. VS. THE UNION OF INDIA AND ORS. [LAWS(BOM)-2019-9-298] [REFERRED TO]
MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LIMITED VS. MAHARASHTRA ELECTRICITY REGULATORY COMMISSION [LAWS(SC)-2021-10-47] [REFERRED TO]
UNITECH ENTERPRISES VS. CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH [LAWS(MAD)-2021-2-366] [REFERRED TO]


JUDGEMENT

RAY - (1.)THIS appeal under S. 130-E(b) of the Customs Act, 1962 is directed against the judgment and order dated 14/08/1989 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Bombay in CD (Bom) A. No. 322 of 1989.
(2.)THE most vital question that comes up for consideration in this appeal is whether marble as mentioned in Tariff Item No. 25.15 in Appendix 1-8, Schedule 1 to the Import (Control) Order, 1955 mentioning "Marble, Travertine, Ecaussine and other calcareous monumental or building stone of an apparent specific gravity of 2.5 or more and Alabaster, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape" is genus within which all other kinds of calcareous stones are included or whether marble is a distinct or different item which is one of the restricted items in the List of Restricted Items described in Appendix 2, Part 3 of Import and Export Policy for April 19/03/1991.
The matrix of the case is that the appellant has been carrying on business as sole proprietor under the name and style of M/ s. Interior Manufacturers at A-12, Yuwan Apartments, 413/414, Mount Mary Road, Bandra, Bombay which is a small scale industry engaged in processing of stone slabs. In the course of his manufacturing activity the appellant utilises and requires as raw material polishable calcareous stones viz. marble, travertine, ecaussine, alabaster and other calcareous stones. All these different types of stones are hard and capable of taking polish. Marble is distinguished from other calcareous rocks, by the fact that it is a metamorphic rock formed from re-crystallisation of limestones and has a visibly crystallined nature. In order to import calcareous stones covered by the Open General Licence and with a view to ensuring that the same was not marble, the appellant took the following precautions :-

(1) The appellant referred to the Indian Standards Specification for Marble viz. IS: 1130-1969 which defines marble as follows:

Para 0.2:

"Marbles are metamorphic rocks capable of taking polish, formed from the re-crystallization of limestones or dolomitic limestones and are distinguished from limestone by even visibly crystallined nature and non-flaggy stratification.

Para 0.7 of the said Specification provides that :

"The Sectional Committee responsible for the preparation of this standard has taken into consideration the views of producers, consumers and technologists and has related the standard to the manufacturing and trade practices followed in the country in this field."

(2) The appellant obtained from the foreign exporters a sample tile of 'Bitticino', the calcareous rock proposed to be imported and had the same tested by a reputed Geologist, Dr. S. F. Sethna who tested the sample and by his report dated 13/10/1988 confirmed that the same was not marble. His letter dated 14/10/1988 explains how the sample tested was limestone, different from marble. The sample tile tested and attested by Dr. Sethna was submitted to the Customs Department.

(3) The appellant then referred to an Italian Book Marmi Italta wherein the index evidenced the fact that 'Botticino' varieties were covered under 'polishable calcareous rocks' and not under 'true marbles' (re-crystallised calcareous rocks).

(4) The appellant specifically placed an order for calcareous stones (other than marble) and asked the Exporter to certify that the said goods were not marble. The Exporter Elle Marmi of Italy by a certificate dated 6/12/1988 certified that all the goods were calcareous stone slabs other than marble.

(5) The appellant also obtained the certificate dated 6/12/1966 from one Gianni C.. Saigini, a Surveyor registered with the Chamber of Commerce, Carrara and a Specialist for stones. Gianni C. Saigini after checking the said consignment loaded in the containers for import by the appellant in Italy certified that the slabs loaded in Container Nos. LMCU 05131518, 050082/3, 0515191 2,051520/6 were calcareous stones other than marble since the same were not re-crystallised calcareous rocks.

The appellant after taking the aforesaid precautions placed an order with Elle Marmi of Italy for import of 3120.50 sq. mtrs. of slabs of calcareous stones having a thickness of 2 cms. at a price of Italian Lira 4,22,56,000 i.e. Rs. 4,93,0001 -approximately. The said Elle Marmi issued an invoice dated 2/12/1983 for the said purpose.

(3.)THE goods arrived in Bombay by the vessel 'Orient Triumph' on or about 19th Jan., 1989. THE appellant filed a Bill of Entry No. 007569 dated 19-1-1989 for clearance of the goods for home consumption. THE goods were declared as slabs of calcareous stones (other than marble) and were imported under OGL Appendix 5, Item 1 of Import and. Export Policy for April 19 8/03/1991.
The goods were inspected by the Assistant Collector (Docks) who observed as follows:

"These goods under import do not appear to be marble or granite and are not polished, they are roughly squared and are having smooth edges on all four sides but are having smooth edges on 2 or 3 sides due to sawing."

The sample of the goods was sent by the Assistant Collector (Docks) to the Assistant Collector of Customs (Group I). The Assistant Collector of Customs (Group 1) issued a query memo dated 5/02/1989 on the alleged basis that 'calcareous stones are nothing but marble only' and, therefore, governed by Entry 62, Appendex 2, Part 3 of Import and Export Policy for March 198 8/04/1991. The query was allegedly based upon explanatory notes contained in the 'Harmonised Commodity Description and Coding System (HSN) evolved by the International Customs Co-operation Council.

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