Dhurunal Chhotalal Patel vs Union of India (UOI) and Others

S.P. Kurdukar, J.—The petitioner in this petition has raised a question as regards excisability of the Copper Scrap. The question is whether Copper Scrap imported by the petitioner falls under residuary Item 68 or Item 26-A of the Central Excise Tariff, as it then stood prior to 1st April, 1981.

The petitioner has imported Copper Scrap some time in 1980. The Assistant Collector of Customs, Bombay, by his order/letter dated 9.3.1982/23.9.1982 (Ex. D), has opined that Item 26-A of the C.E.T. will apply to Copper Scrap as the same is covered by expression "Copper/Brass in any crude form". Accordingly, the Assistant Collector held that duty leviable would be at the rate of 80% ad valorem basic duty under Chapter 74 of C.T.A. and Rs. 3300/- per metric tonne additional duty under Item 26-A of C.E.T. This liability assessed by the Assistant Collector is sought to be impugned in this writ petition.

Mr. D.H. Mehta, learned Counsel appearing for the petitioner drew our attention to a reported decision of the Division Bench of the Kerala High Court in Goods Agro Chemicals and Others Vs. Assistant Collector of Customs, As against this, Mr. H.V. Mehta, appearing for the respondents drew our attention to an unreported decision of the Division Bench of this Court in Dau Dayal Agarwai v. Union of India and Ors. (Writ Petition No. 2709 of 1982) dated July 1,1992, rendered by K. Sukumaran and Dr. B.P. Saraf, JJ. Mr. H.V. Mehta urged that decision of this Court holds the field and the same needs to be upheld.

After hearing Counsel for the parties and after perusing both these decisions, we are prima facie, of the opinion that the decision rendered by the Court on July 1,1992, needs reconsideration. It is not disputed before us that the decision of the Kerala High Court is directly on the point and the same is diagonally opposite to the decision of the Division Bench of this Court

At the outset, we may state that the Kerala High Court has considered various arguments raised on behalf of the parties as regards excisability of Copper Scrap, whether it falls under Entry 26-A. The Kerala High Court accepted importer''s contention that Copper Scrap falls under Entry 68 (residuary) of C.E.T. The Division Bench of the Kerala High Court drew support to its conclusion from the decision of the Supreme Court in Union of India v. Tata Iron and Steel Co. Ltd. 1978 ELT 439 : 1975 CenCus 62 : ECR 450 SC.

The Division Bench of this Court does not seem to have considered various contentions raised by the Petitioner in Writ Petition No. 2709 of 1982. There is no reference to the decision of the Kerala High Court. Prima facie, we find that the view taken by the Kerala High Court is more consistent and acceptable.

In view of the above circumstances, we are of the opinion that the decision of the Division Bench of this Court in Writ Petition No. 2709 of 1982 rendered by K. Sukumaran and Dr. B.P. Saraf JJ on 1st July 1992 needs reconsideration.

The issue formulated by us for consideration of larger bench is as under

Whether importer of Copper Scrap is liable to pay excise duty under Entry 68 or 26-A of C.E.T. as it then stood prior to 1.4.1981.

We, therefore, direct the Prothonotary to place the papers of this writ petition be-fore the learned Chief Justice for appropriate order.