- (1.) The appellant-firm. Hind Plastics, is engaged in the manufacture of certain plastic goods. For that purpose, it has been importing PVC from time to time, paying the customs duty and additional duty leviable thereon. In the year 1983, it filed a writ petition in the Bombay High court, being WP (C) No. 906 of 1983, staling that it had been paying the duty on packages (in which the PVC was imported) , being unaware of the Notification No. 184- CUS dated 2-8-1976 providing for their exemption from duty/additional duty. It complained that though the respondents were aware of the notification and ought to have given the benefit thereunder to the appellant, they did not do so. It prayed for refund of the amount of customs duty and additional duty relatable to packages, besides asking for a direction restraining the customs authorities from levying the duty/additional duty on PVC which may be imported by it thereafter. It appears, a large number of writ petitions raising similar contentions were filed in the Bombay High court, all of which have been heard and dismissed by a division bench. The division bench held that the notification does not provide for deduction of the value of packages from the invoice value of imported PVC and that the notification merely saves the duty/additional duty leviable separately on the said packages, which too are deemed in law to have been imported. The correctness of the said view is questioned in this appeal.
(2.) Notification No. 184 dated 2/8/1976 has been issued by the central government under Section 25 of the Customs Act. It is necessary to read the notification in full: "184/76-Cus dt. 2/8/1976 G. S. R. 553 (E) In exercise of the powers conferred by Ss. (1 of Section 25 of the Customs Act, 1962 (52 of 1962, the central government, being satisfied that it is necessary in the public interest so to do, hereby directs that where any goods are imported into, or exported from, India, in packages or containers or the like, such packages or containers or the like shall be exempt- 170 (i) from the whole of the duty of customs leviable thereon under the First or the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975, as the case may be, and (ii) from the whole of the additional duty leviable thereon under Section 3 of the Customs Tariff Act, 1975 (51 of 1975, in the case of imports: Provided that- (a) the value of the packages or containers or the like in which the goods are packed is included in the value for which the goods contained therein have been invoiced; (b) the goods are not packed in packages or containers or the like which are of a permanent character and accordingly strong enough to be suitable for repeated use; and (c) the packages or containers or the like in which the goods are packed are such as are normally used in the trade for packing such goods. "
(3.) This notification is preceded by similar notifications, which are found referred to in the judgment of Pendse, J. in Writ Petition No. 1099 of 1978 (Kirloskar Cummins v. Union of India) delivered on 14/15/10/1981. The first notification is No. 114 dated 25/11 /1967. The notification provided that where the goods are imported into India packed in any material, the material in which the goods are so packed would be exempt from the whole of the duty of customs including countervailing duty provided that the goods are packed in materials normally used in trade for packing such goods and the packing is not suitable for repeated use. In other words, the conditions prescribed in Notification No. 114 broadly corresponded to clauses (b) and (c) of the proviso in Notification No. 184 of 1976 concerned herein. On 10/6/1972, a notification was issued in supersession of Notification No. 114, dated 25/11/1967 wherein an additional condition was provided to the effect that the value of the packing material should have been included in the invoice value of the goods imported. It is evident that the additional condition imposed by this notification corresponded to clause (a) of the proviso in Notification No. 184. Then came the Notification No. 184 of 1976 with the aforesaid three conditions.;