ASHIM KUMAR BANERJEE, J. - (1.) USED aluminium cans were imported by the writ petitioner vide bill of lading dated 17th August, 1982. After the said goods arrived in India, the custom authority imposed duty by virtue of Section 12 of the Customs Act, 1962 read with Sections 2 and 3 of the Customs Tariff Act, 1975 by virtue of a notification dated July 31,1982 which has been impugned in this writ petition.
(2.) TWO -fold challenge has been made by the writ petitioner : - (1) The additional duty levied under Section 3 of the said Act, 1975 is not tenable in view of the fact that the used aluminum cans imported by the petitioner were nothing but aluminum scraps and can not come under purview of the Section 3 of the said Act, 1975. (2) The auxiliary duty levied by the Customs Authority in view of the change of the tariff is also not tenable and the duty should have been imposed on the date of booking of the said goods. Mr. J.P. Khaitan, learned Advocate appearing for the petitioner, in his usual fairness has conceded that the second ground of challenge is no longer available to the petitioner by virtue of the settled principles of law as laid down by the Apex Court. That leaves us to decide only the first question raised by the writ petitioner. To decide this question it is necessary to find out the true purport of the subject sections. Section 12(1) of the said Act, 1962, Section 2 of the said Act and Section 3(1) of the said Act, 1975 are quoted below : - 'SECTION 12. Dutiable goods. - (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the [Customs Tariff Act, 1975 (51 of 1975)], or any other law for the time being in force, on goods imported into, or exported from, India. SECTION 2. Duties specified in the Schedules to be levied. - The rates at which duties of customs shall be levied under the Customs Act, 1962 (52 of 1962) are specified in the First and Second Schedules. SECTION 3. Levy of additional duty equal to excise duty. - (1) Any article which is imported into India shall, in addition, be liable to a duty (hereinafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Explanation - In this section, the expression 'the excise duty for the time being leviable on a like article if produced or manufactured in India' means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or, if a like article is not so produced or manufactured, which would be leviable on the class or description or articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty.'
(3.) ACCORDING to Mr. Khaitari the Explanation toSub -section (1) of section 3 postulates that additional duty would be levied on a finished product at the rate of the excise duty payable on its manufacture in India or in case the same is not manufactured, equivalent to the excise duty paid on a like article. Since used aluminum cans are nothing but scrap and are being imported to get the raw metal after moulding (melting) is not a product within the meaning of Section 3(1) and cannot attract additional duty.;