S.RANGANATHAN - (1.) THESE are four appeals by the Collector of Customs in the cases of M/s Western India Plywood Mfg. Co. Ltd. and Kanara Wood & Plywood Industries Ltd. (hereinafter referred to as 'the assessee'). A very short common point is involved in these appeals.
(2.) THE assessee imported logs of timber from Burma. Under the Customs Tariff Act, 1975, timber is chargeable to customs duty at 60%. (This we shall call the basic customs duty.) THE relevant entry in the Schedule to the Customs Tariff Act is under heading No. 44.01 which includes "wood and timber". The Government had, however, issued a notification under S. 25(1) of the Customs Act exempting timber imported from certain countries of which Burma is one. The result was that the basic customs duty payable by the assessee in respect of its imports - we shall call this the effective basic duty - was nil. The assessee, however, was liable to pay an additional duty of customs in respect of its imports. This additional duty may be referred to as the auxiliary duty of customs. The levy of this duty is governed by the terms of notification No. 265 dated 8-12-1982 and its successor notification 59 of 1983 and No. 126 of 1984. The last of these reads as follows: "TABLE JUDGEMENT_515_SUPP2_1989Html1.htm Explanation: For the purpose of S1. No. l and 2 in the above Table, the expression the rate of duty of customs specified in the said First Schedule, read with any relevant notification of the Government of India for the time being in force", in relation to any article liable to two or more different rates of duty by reason of the country of origin of that article, means that rate of duty which is the highest of those rates." The assessee cleared the goods by paying an auxiliary duty at 40%. Subsequently, however, the assessee seems to have felt that its case falls under S. No. 2 of the above notification and that it should have paid an auxiliary duty of only 30% and not 40%. It, therefore, applied to the respondent for a refund of the excess duty allegedly paid by it. This claim was rejected by the Assistant Collector. However, on appeal, the Collector of Customs (Appeals) held that the assessee was entitled to the refund claimed and this order has also been confirmed by the Central Excise and Gold Control (Appellate) Tribunal (CECAT). The Collector of Customs has preferred these appeals.
(3.) THE order of the Tribunal in the appeals preferred by the present respondent was a very short order in which the Tribunal followed its earlier decision in the case of M/s. Indian Plywood Company Limited, Bombay. We have been taken through the decision of the Tribunal in the said case which is reported in (1987) 29 ELT 559. We have, therefore, had the benefit of the full reasoning of the Tribunal for reaching its conclusion. We are of opinion that the Tribunal has erred in its interpretation of the notification set out above and that the assessee's case is clearly covered by the explanation in the notification. It is true that the main part of the notification provides for. an auxiliary duty at 40% in cases where the effective rate of basic duty (i.e. the rates set out in the First Schedule read with any relevant notification) is 60% or above and an auxiliary duty at 30% in cases where such effective basic rate is nil or less than 60%. If the notification had stopped here, the assessee would have been perfectly within its rights to claim that the auxiliary duty payable by it would only be 30% because the effective basic rate in its case is nil.;