THERMAX PRIVATE LIMITED versus COLLECTOR OF CUSTOMS (BOMBAY) NEW CUSTOMS HOUSE

Citation: [1992] 3 S.C.R. 943 · Decided: 19-08-1992 · Supreme Court of India · Bench: S. RANGANATHAN · Disposal: Disposed off

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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THERMAX PRIVATE LIMITED 
A 
v. 
COLLECTOR OF CUSTOMS (BOMBAY) NEW CUSTOMS HOUSE 
AUGUST 19, 1992 
(S. RANGANATHAN, V.RAMASWAMI AND B.PJEEVEN 
B 
REDDY, JJ.) 
Customs Tariff Act, 1975/Central Excises & Salt Act, 1944: 
Section 3(1)/Section 8(1)/Rules 8(1), and Rule 192 in Chapter X-Ad- c 
dional duty on article imported equal to excise duty leviable on a like 
article-Exemption/concession granted to a like article under Rule 8(1) ~-
tends to additional duty-Procedure specified in Chapter X-Extends to ad-
ditional duty on import-Concession available to importer for supplying them 
to Indian manufacturers-Explanation to S.3(1}-Applicable only where 
D 
goods of exactly the same description attracted different rates of duty-Highest 
rate of duty-Applicability of. 
'lbe appellant-assessee imported certain goods and paid the cus-
toms duty and additional duty at the appropriate rate under the relevant 
entry of the customs tariff but claimed exemption from the additional duty E 
of customs leviable under S.3(1) of the Customs Tariff Act, 1975 on the 
basis of two notifications issued u/s. 8 of the Act, and refund of the 
additional customs duty paid by it. Since the claim was rejected by the 
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Assistant Collector by his orders dated 25 • .2.85 and 30.9.85 the assessee 
preferred appeals to the Collector, who allowed one appeal and dismissed 
the other. 'lbe assessee as well as the Revenue preferred appeals before F 
the Tribunal against the respective order which went against them. 'lbe 
'l-
Tribunal allowed the appeal preferred by the Revenue and dismissed the 
assessee's appeal. Aggrieved by the Tribunal's orders, the assessee has 
preferred the present appeals, contending that even if the tribunal was 
right in its conclusion that the procedure of Chapter X of the rules cannot G 
be complied with, the exemption under the notification dated 27.7.87 could. 
not be denied. 
~· 
On behalf of the Revenue it was contended that even assuming that 
the goods fulfilled the conditions of the notification, the rate of duty 
applicable would be 80% being the highest rate by virtue of Explanation to H 
943 
>-
944 
SUPREME COURT REPORTS 
(1992) 3 S.C.R. 
A S.3(1) of the Customs Tariff Act. 
Disposing of the appeals, this court 
)-
HELD:l.:f The benefit of Chaptex X of the Central Excise Rules, 
1944 will no doubt generally be claimed by a manufacturer in which event 
B . he will have. to make the application, get the licence and give lhe assuran-
ces, bond or guarantee required by the rules but it can also be claimed by 
other persons. The language of the rule applies to any person, not neces-
sarily a manufacturer, wishing to obtain remission of duty sanctioned by 
a notification under rule 8 on excisable goods in a specified industrial 
c process. (955-C] 
1.2. There is nothing.in the scheme of the Rule 192 which makes it 
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inapplicable to an importer of goods. The assessee has imported the goods 
and· is selling them for use in a factory, a use which qualifies for the 
concession under the notifications issued u/s. 8. The types of use specified 
D in the concessions notified ,,:ould be of any kind. Only, for claiming a 
+ 
concession in excise duty the user should be the manufacturer himself or 
he must have made the purchase from a manufacturer liable to pay excise 
duty on the item whereas in regard to a claini for additional duty (CVD) 
concession, the supplier will be an importer. The latter will be entitled to 
E 
sell the goods at the concessional rate of duty (or at nil rate if there is an 
exe~ption) if the purchaser from him who puts the goods to the specified 
use (whether a manufacturer or not) fulfils the requirements of Rule 192. 
Since the concession under Rule 192 turns only on the. nature and use to 
which the goods are put by the user or purchaser thereof and oil whether 
he has gone through the procedure outlined in Chapter X, it would bot be 
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F 
correct to deny it to a supplier of such goods on the ground that he is an 
importer and not a manufacturer. That aspect is provided for by S.3(1) 
which specifically mandates that the CA V will be equal to the excise duty 
-f 
for the time being leviab.le on a like article if produced or manufactured 
in India. If the person using the goods is entitled to the remission, the 
G importer will be entitled to say that the CVD should only be the amount 
of concessional duty and, if he ha~ paid more, will be entitled to ask for a 
refund. The Tribunal was in erro

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