COLLECTOR OF CUSTOMS, BOMBAY versus K. MOHAN & CO. EXPORTS

Citation: [1989] SUPP. 1 S.C.R. 231 · Decided: 25-09-1989 · Supreme Court of India · Bench: M.H. KANIA · Disposal: Dismissed

Judgment (excerpt)

COLLECTOR OF CUSTOMS, BOMBAY 
v. 
K. MOHAN & CO. EXPORTS 
SEPTEMBER 25, 1989 
[M.H. KANIA AND S. RANGANATHAN, 11.] 
Customs Act 1962-Customs Tariff Act 1975-Section 3-Jmport 
of metallised polyester films rolls-Whether entitled to exemption from 
payment of countervailing duty under notification No. 228/76 dated 
2.8.1976 issued under Section 25 (1) of the Customs Act. 
The Respondent firm imported from Japan, "metallised polyester 
films" which were in the shape of film rolls several metres long. The 
goods were cleared on payment of customs duty as well as additional 
duty /countervailing duty leviable under section 3 of the Customs 
Tariff Act. Thereafter the Respundent firm moved three applications 
claiming refund ·of the additional duty of customs paid by it. The claim 
was made under the terms of a notification of exemption issued under 
section 25(1) of the Customs Act. Coder notification No 228/i6 dated 
2.8.1976, an exemption from the (:ustoms Tariff Act was granted in 
respect of "articles made of plastics, all sort bu.I excluding those 
specified in the Table annexed and falling under Chapter ·39 of the First 
Schedule to the Customs Tariff Act. 
· 
The Tribunal accepted the claim of refund made by the Respon-
dent. In so doing it relied on the decisions of the Madras High (:ourt in 
Precise Impex P: Ltd. v. Collector, [1985) 21 ELT 84, of the Calcutta 
High Court in Continental Marketing P. Ltd. v. Union, 11987) 28 ELT 
H and of the Bombay High Court in A. V. Jain v. Union, WP 2136.of 
1986 decided on 30. l.1987. The Tribunal also referred to its earlier 
decision in.Export l~dia Co
0
rpration P. Ltd. v. Collector; and Collector 
v. Fancy Pyingand Printing Works 8-ombay. 
The Tribunal held that the goods imported by the Respondent 
were articles made of plastics but they were "films" and thus not one of 
the Categories of articles mentioned in the Table. 
Aggrieved by the decision of the Tribunal, the Collector of 
Customs has filed these appeals under section 130-E(B) ofthe Customs 
Act 1962. 
• 
231 
A 
B 
c 
D 
E 
F 
·G 
A 
B 
c 
D 
232 
SUPREME COURT REPORTS 
(1989] Supp. 1 S.C.R. 
Before this Court the Department contended that the goods are 
"sheets" or "foils" or other "rectangular or profile shape" and hence 
liable to duty. The assessee's assertion is that the goods are "films" 
though specie of plastics articles yet they are different from any 
mentioned in the table. According to it even if they are treated only as 
thin sheets of plastic material, they can be described only as "sheet-
ings" and not sheets. 
On consideration of the rival contentions advanced by the parties 
and after making reference to the other relevant notifications granting 
exemption issued under rule 8(1) of the Central Excise Rules in respect 
of items falling under Item No. ISA of the Central Excise Tariff Act, 
this Court dismissing the appeals, 
HELD: Films made of plastic fall in a category of their own and 
do not fall within the categories of articles excepted by the Table. Film 
-is a well-known, distinct and indepenent category of plastic article 
known to commerce. [235AI 
The Court agreed with the view of the Bombay High Court that, 
though for certain purposes there is a distinction between "films", 
'~foils" and "sheets", so far as ihe article presentlY in question is con-
cerned it is recognised in trade only as "film". [238F] 
E 
The goods under consideration cannot be described either as 
"foils or sheets". A film roll of indefinite length and not in the form of 
individual cut piece can be more appropriately described as "sheet-
. ings" rather than "sheets". [238G;239A] 
The expression "other· rectangular or profile shapes" in the table 
F 
is also not appropriate.to bring in the items in question. For one thing, 
the articles have a distinct name in the market as "films" and therefore 
they are outside the table. It will not be possible to accept the contention 
that articles which _have ~ clear commercial identity as "fih~s" should 
be brought within the wide and vague expression "other rectangular or 
profile shapes", because if the film is cut into small pieces each piece 
G 
wUI be rec!angular in shape. The items imported do not come in a 
rectangular shape they are imported as rolls of polyester films. They are 
not articles of rectangular shape. Nor would it be passible to treat them 
as of other "profile" shape. The Court was unable to attribute any 
precise meaning to the expression "profile" sh

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