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885 As has been pointed out supra, the copies of the photo graphs produced before this Court clearly reveal that three persons evidently the petitioners 1 to 3 have been hand cuffed with leading chains. Ratio |
We are not able to arrive at a correct conclusion as to when, where and under what circum stance this had happened. Ratio |
Therefore, we further direct the Government of Madhya Pradesh to initiate an enquiry in this matter and to take appropriate action against the erring officials. Ratio |
Lastly, with regard to the prayer of claim for suitable and adequate compensation, we observe that it is open to the petitioners to take appropriate action against the erring officials in accordance with law, if they are so advised, and in that case, the Court in which the claim is made can examine the claim not being ... |
In the result, the writ petitions are disposed of sub ject to the observations made above. RPC |
R.S.S. Petitions disposed of. RPC |
Civil Appeal No. 390 of 1979. FAC |
From the Order dated 14.2.1978 of the Central Govt. FAC |
at New Delhi in Revision Petition No. MB/133/77. FAC |
Anil B. Dewan, S.K. Dholakia, P.C. Kapur and P. Nara simhan for the Appellants. FAC |
Kapil Sibbal, Additional Solicitor General (NP), Ms. Nisha Bagchi. FAC |
Ms. Sushma Suri and C.V.S. Rao for the Re spondents. FAC |
The Judgment of the Court was delivered by RANGANATHAN, J. FAC |
All these appeals involve a common ques tion as to whether the goods exported by the appellants are liable to export duty. FAC |
There are 67 appeals which relate to various batches of exports made by the appellants during the period from 4.3.76 to 14.2.82. FAC |
They will be disposed of by this Common order. FAC |
The goods exported by the appellants are blanched, roasted and salted peanuts packed in vacuum containers. FAC |
The appellants purchase groundnuts without shell in raw form various parts of Saurashtra in the State of Gujarat. FAC |
There after, they are sorted out into different sizes small, medium and big. FAC |
The medium and small sizes are separated. FAC |
Dust and husk are cleaned out and other foreign material removed. FAC |
The commodity then goes to a dry roaster where it is roasted at a 144 temperature of 150 deg. FAC |
This results in reduction of the moisture and destruction of enzymes to a considerable ex tent. FAC |
It is also stated that by this process any fungus or aflotoxin is removed. FAC |
After dry roasting, the product is cooled down with the aid of a blower so that the skin of the groundnuts become loose and the groundnut contracts. FAC |
There after, it goes through automatic blanching machines. FAC |
This separates the skin of the groundnut and on removal of the skin it becomes white. FAC |
Thereafter, the seeds are put on running tables and picked, according to uniform sizes, with the aid of an electric eye sorter. FAC |
The commodity thereafter goes to a frying section for being subjected to deep oil bath frying in an automatic fryer. FAC |
They are then subjected to anti oxident chemicals and thereafter sent through the blower for being cooled down. FAC |
The extra oil is sucked out. FAC |
They are then subjected to a glazing process and are given permeated chemicals and salt treatment and are packed in packets and tins. FAC |
The goods thus exported by the appellants are charged to duty under item 13 of the Second Schedule to the Indian Tariff Act 1934 and. FAC |
later, under item 20 of the Second Schedule to the . FAC |
The entry is the same under both enactments but the rate of duty is differ ent. FAC |
The entry reads: Item N0. FAC |
The first line of argument of the assessee was that the item 'groundnut kernel ' refers to groundnut seeds, the basic characteristic of which is the quality of germination. ARG |
It was submitted that, since the product exported by the assessee, though basically ground nuts, had been so processed and treated that it lost its quality of germination, it could no longer be described as 'groundnut kernel '. ARG |
The second line of argument put forward on behalf of the appellant was that the entry in the export tariff referred only to groundnut kernel used for oil ex traction. ARG |
It was pointed out that groundnut in shell as well as groundnut kernel can be said to be of two varieties one an edible variety and the other a variety used for oil extraction purposes. ARG |
While it is true that it is not a mutually exclusive classification in that perhaps all groundnut is capable of being eaten or of being 145 processed to yield oil, the submission was that these two varieties of groundnut kernels or groundnut in shell were two different trade commodities. Ratio |
They had different charac teristics; they were meant for different markets. FAC |
; their end use was different; and their prices as well as mode of pricing were totally different. FAC |
Referring to entries in this regard in the BTN (British Trade Nomenclature), the Indian Import Tariff as well as the Indian Import Export Policy, it was contended on behalf of the appellant that the entry should be confined only to groudnut kernel of the oil yield ing variety and not the variety exported by the appella... |
The appellant 's contention, initially put forward before the Assistant Collector of Customs in an application for refund, was rejected by the Collector of Customs, on appeal by the Central Board of Excise and Customs and, on further revision, by the Government of India under the then existing procedure. FAC |
So far as the subsequent periods of exports were concerned, the contentions of the appellant were considered and rejected by a Full Bench of the Customs, Excise Gold Control Appellate Tribunal. FAC |
The appellant preferred a Spe cial Leave Petition from the order of the Central Government in revision dated 14.2.1978, which was admitted and num bered as Civil Appeal No. 146 of 1979. FAC |
Against the other orders of the Tribunal, the appellant has preferred appeals to this Court under section 130 E of the . FAC |
On behalf of the appellants, a number of circumstances have been relied upon to justify the distinction sought to be made between groundnut kernel simpliciter and blanched and roasted groundnuts exported by the assessee. Ratio |
It will be convenient to summarise the points made on behalf of the appellant here: (1) In the Indian Trade Classification (I.T.C.), which has been published by the Government of India for purposes of foreign trade, there is a bifurcation in the classification between the oil seeds and roasted nuts. Ratio |
There are various revisions of this classification. FAC |
Upto 1st April, 1972, the I.T.C. classified oil seeds, oilnuts and oil kernels in Division 22. FAC |
The various items occurring under this Division were as follows: Code No. Description Unit of Quantity Group 221 Oil seeds, oilnuts and oil kernels 146 221.1 Groundnuts (Peanuts), green. FAC |
whether or not shelled (excluding flour and meal) 221.1001 Groundnut kernels. FAC |
H.P.S. 221.1002 Groundnut kernels FAC |
N.E.S. 221.1003 Groundnut in shell. FAC |
H.P.S. TONNE 221.1004 Groundnut in shell. FAC |
N.E.S. FAC |
As against the above in group No. 053 roasted nuts are specified as below: 053.9009 Others (roasted nuts including groundnuts) In a revised alphabetic index to the commodities, the relevant code numbers for various commodities pertaining to groundnuts are as follows: Commodity Code No. Groundnut in Shell HPS 221.1003 G... |
The unit of quantity in which these goods are sold is tonne. FAC |
This chapter deals with various types of oil seeds like soya beans copra, linseed, rape or colza seeds, sunflower seeds, palm nuts and kernels and other oil seeds and oleaginous fruits. FAC |
On the other hand edible nuts come under heading 20.08, which reads thus: "Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere speci fied or included Nuts, ground nuts and other seeds, whether or not mix... |
Other, including mixtures Cashew nut, roasted Kg. FAC |
Nuts, prepared or preserved Kg. FAC |
Other roasted nuts and seeds n .e.s. FAC |
" (2) A similar classification has also been made under the BTN. Ratio |
Note i under this Chapter reads thus: 1. Ratio |
It is to be taken not to apply to coconuts or other products of heading No. 08.01 or to olives (Chapter 7 or Chapter 20). Ratio |
It does not, however, include olives (Chapter 7), coconuts (heading 08.01) or certain seeds and fruits from which oil may be extracted but which are primarily used for other purposes, e.g. walnuts and almonds (heading 08.05), apricot, peach and plum kernels (heading 12.08) and cocoa beans (heading 18.01)". Ratio |
148 It is also stated that the heading covers, inter alia, ground nuts (except roasted ground nuts heading 20.06). Ratio |
As against this heading 20.06, which deals with fruit otherwise prepared or preserved, whether or not containing added sugar or spirit, carries the following sub heading: (3) Almonds, ground nuts, areca (or betel) nuts and other nuts, dry roasted, oil roasted or fat roasted, whether or not containing or coated with veg... |
(3) Even under the Customs Tariff, the first Schedule, which deals with import, contains a similar classification. Ratio |
Chapter 12 and note 1 to the Chapter are the same as in BTN. Ratio |
Item 12.01 reads oil seeds and oleaginous fruit, whole or broken (1)not elsewhere specified (2) Copra. Ratio |
Chapter 20 deals with preparations of vegetables, fruit or other parts of plants. Ratio |
It contains a note that the Chapter covers edible plants. Ratio |
parts of plants and roots of plants conserved in syrup (for example, ginger) and roasted groundnuts. Ratio |
This indi cates that the customers for two types of goods are totally different. Ratio |
(5) 0n 14th July, 1976, the Government of India decided to ban with immediate effect export of HPS (Hand Picked Seeds) groundnuts (both in shell and kernel), which is canalised through Indian Oil and Oil Produce Exporters ' Association. Ratio |
However, by an export trade notice dated 8.9.76, the Government of India clarified that the item "blanched and roasted groundnut kernels", does not fall within the purview of Exports Control Order, 1968 and its export is allowed without any licensing formalities. Ratio |
(6) It has been pointed out that the Collector of Cus toms used to levy and recover an agricultural cess on the goods in question until the Government of India, by an order of 1976, held that the roasted and salted peanuts/groundnuts exported by the assessee were not liable to cess under the . Ratio |
(7) It is pointed out that the packed roasted seeds exported by the appellants are more value added than raw groundnut kernel used 149 for other purposes. Ratio |
The assessee 's product is packed in vacuum containers and sold in terms of kilograms, whereas other groundnuts are exported in bags or drums and sold in tomes. Ratio |
It would not be correct to bring both of them under same classification for export purposes. Ratio |
Relying on the above points of difference, Shri Divan and Dholakia, appearing on behalf of the appellant vehement ly contend that the entry in the export tariff should be given a restrictive interpretation. ARG |
Reliance is placed in this context on a judgment of the Madras High Court in Kalaivani Fabrics vs Collector, a direct decision on the present issue. ARG |
Reference is made also to the cases cited therein and, in particular, to the ruling of this Court in M/s. Healthways Dairy Products Co. vs Union of India & Ors., ; Shri Divan submits that if there is any ambiguity or doubt it should be re solved in favour of the assessee. ARG |
He contends that, while the taxing authorities, on whom the onus lies, have merely rested on the dictionary meaning of the .word 'groundnut kernel ', the assessee has placed a lot of material show that there are two different commercial varieties of groundnut kernel. ARG |
He submits that, in matters of export and import, the functional test is slowly replacing other tests, an approach clearly indicated by the classifications under the BTN, ITC and the import tariffs. ARG |
Shri Dholakia, appearing on behalf of the appellant in one of the appeals, very strongly urges that the commodity known as groundnut kernel consists of two entirely different varieties or classes particularly in matters of trade. ARG |
There is a sea of difference between the groundnut kernel which is exported as an oil producing variety and the roasted peanuts which are exported more or less as a 'processed food ' by the appellant. Ratio |
The produce exported by the appellants has no oil content; it is incapa ble of being used for germinating purposes; its market, its unit of quantity of sale, itS price and even its exporters are totally different viewed from the commercial point of view, it is impossible to mix up these two varieties under one common h... |
He, therefore, submits that the export tariff item should be restricted only to one of these varieties, namely, the oil seed variety or the germinating variety and should not be extended to the roasted items sold by the assessee. ARG |
Shri Dholakia also raised a point that the appellant 's factory was located in a free trade zone trod that, having regard to the various notifications of the Government of India, the Government was estopped from levying any export duty on its products. ARG |
The necessary facts to 150 found any such promissory estoppel have not been put forward or considered by any of the assessing or appellate authori ties. Ratio |
We, therefore, decline to permit Shri Dholakia to raise this question at this belated stage. Ratio |
On the other hand Ms. Nisha Bagchi, who argued the case on behalf of the Union of India very ably, submitted that the expressions 'groundnut kernel ' and 'groundnut shell ' used in the export entry were of the widest connotation. ARG |
She referred to the dictionary meanings of the word 'kernel ' and submitted that there is no justification whatsoever for restricting its meaning on the basis of the capacity to germinate or to yield oil. ARG |
In fact, she contended, the very fact that the export tariff avoids all these classifications and uses a wide expression, which is capable of taking in both the edible as well as the oil seed varieties of the groundnuts, supports her conten tion that, so far as export tariff is concerned, the legis lature intended no l... |
In support of her contention as to the wide meaning of the expression 'ground nut kernel ', she relied on certain observations of this Court in State vs Shanmagha Vils Cashewnut Factory, [1953] 4 S.T.C. 205 and of the Madras High Court in Binod Cashew Corporation vs Deputy Commercial Tax Officer, [1986] 61 S.T.C. 1. AR... |
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