COLLECTOR OF CUSTOMS, BOMBAYversusK. MOHAN & CO. EXPORTS

             COLLECTOR OF CUSTOMS, BOMBAY                                   A
                                   v.
                   K. MOHAN & CO. EXPORTS

                        SEPTEMBER 25, 1989
                                                                            B
         [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.
                                                                            c
      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
                                                                            D
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.         ·                               E

      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
                                                                            F
1986 decided on 30. l.1987. The Tribunal also referred to its earlier
decision in.Export l~dia Co rpration P. Ltd. v. Collector; and Collector
                            0




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 ·G
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
    232          SUPREME COURT REPORTS                 (1989] Supp. 1 S.C.R.

A         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-
B   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,
c
          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
D
          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" shape but it cannot be
    taken to be comprehensive enough to take in any shape whatever. If the
H   ei<pression "rectangular" or other "profile" shape in the table is given
     COLLECTOR OF CUSTOMS v. K. MOHAN & CO. [RANGANATHAN, J.)              233

     such wide and unrestricted interpretation then practically any article of
                                                                                   A
     plastic can he brought within the meaning of one or other of the expres-
     sions used in the Table and thus the entire exemption can he altogether
     deprived of any content. The Court took the view that the articles are
     "films" and, as, this expression does not find specific mention in the
     table, the assessee is entitled to exemption under the main part ofthe
     notification. [239E-H; 240A]                                                  B

          CIVIL APPELLATE JURISDICTION: Civil Appeals Nos ..
     1573/88, 3954/87 and 3370 of 1988.

           From· the Judgment and Order dated 1.2. 1988, 10.6.1987 and
     28:4.1988 of the Customs Excise and Gold (Control) Appellate
     Tribunal, New Delhi in Appeal No. C/1373/85-C Order No. 87188-C,              c
     1704/83-D Order No. 463/87-D and Appeal No. C-605, J986(C) m
     Order No. 429/88-C respectively.

         A.K. Ganguli, P. Parmeshwaran, T.V.S.N. Chari and Mrs.
     Sushma Suri for the Appellant.                                                D

           S. Ganesh, K.J. John and San jay Grover for the Respondent.

           The Judgment of the Court was delivered by

           RANGANATHAN, J. These three appeals under Section                       £
     130-E(b) of .the Customs Act, 1962 raise the same issue. They are
     therefore disposed of by a common order.

           The respondent-Mis. K. Mohan & Co.-imported, from
     Japan, "metallised polyester films" under an import licence dated
     14.6.1978. The goods were admittedly in the shape of film rolls several       F
     metres long. They were cleared on payment of customs duty leviable
     under the Customs Act, 1962 (CA) as well as the additional
     duty Of customs (or countervailing duty) leviabie under s. 3 of the
     Customs Tariff Act, 1976 (CTA). Subsequently, the respondent firm
     made three applications for the refund of the amount of the additional
,.   duty of customs paid by it. The claim for refund was based on the             G
     terms of a notification of exemption issued under s. 25(1) of the CA.
     Under notification no. 228/76 dated 2.8.1976, an exemption from the
     customs duty payable under s. 3 of the CTA was granted in respect of
     "articles made of plastics, all sorts, but excluding those specified in the
     table annexed hereto and falling within Chapter 39 of the First Schedule
     to the Customs Tariff Act, 1975 (51 of 1975)". The annexed table              H
    234         .SUPREME COURT REPORTS               [1989] Supp. 1 S.C.R.

A excepted the following items from the purview of the exemption:

                "Tubes, rods, sheets, foils, sticks, other rectangular or pro-
                file shapes, whether laminated or not, and whether rigid or
                flexible including tubings and. polyvinyl chloride sheets".

B   Notification No. 443 dated 29.11.76 omitted the words of notification
    no. 228 which have been underlined above but left the main notifica-
    tion otherwise untouched.

         The assessee's claim for refund was accepted by the Tribunal.
   The Tribunal held that the goods imported by the respondent were
C articles made of plastics. But they were 'films' and not one of the
  categories of articles enumerated in the table. In reaching its conclu-
   sion, the Tribunal followed the decisions, of the Madras High Court in
   Precise lmpex P. Ltd. v. Collector, [1985] 21 ELT 84, of the Calcutta
   High Court in Continental Marketing P. Ltd. v. Union, [1987] 28 ELT
   11 and of the Bombay High Court in A. V. Jain v. Union, WP 2136 of
D 1986, decided on 30.1.1987. The Tribunal also referred to its own
   earlier decisions in Export India Corpn. P. Ltd. v. Collector and Col-
  ,/ector v. Fancy Dyeing and Printing works, Bombay. The Collector of
   Customs is aggrieved by the orders of the Tribunal and hence these
  appeals. There are three appeals as there were three applications for
   refund by the assessee in respect of different periods.
E
         There is no dispute before us that the goods in question are
  articles made of plastics. This being so, the assessee 1s entitled to the
  exemption conferred by the notification unless the goods answer the
  description of one or other of the specific items set out in the table.
  The onus of showing this is clearly on the Revenue. The department
F contends that the goods are "sheets" or "foils" or "other rectangular
  or profile shapes" and hence liable to duty. On the other hand the
  assessee's case is that they are "films", a specie of plasti~ articles
   different from any mentioned in the table. It is alternatively contended
   that, even if they are treated only as thin sheets of plastic material,
   they can be more accurately described only as "sheetings" and nit
G "sheets". It is pointed out that the goods are in the form of large rolls
  containing films several metres long. Such huge lengths can only be
  called "sheetings" for the expression "sheets", it is said, connotes only
   smaller lengths or bits cut out trom "sheetings" which mean sheets or
   immense lengths. Also, being in the form of rolls, they cannot be said
   to be articles of "rectangular shape" merely because, when cut into
H segments, they may fall into rectangular pieces.
COLLECTOR OF CUSTOMS.v. K. MOHAN & CO. [RANGANATHAN, J.]               235

      After giving the matter our careful consideraiion, we are of            A
opinion that the view taken by the three High Courts and the Tribunal
that "films" made of plastic fall in a category of their own and do not
fall within the categories of articles excepted by the table is correct.
We have come to this conclusion because there are various statutory
indications and other material which support such a conclusion:
                                                                              B
      (1) Duty under the CTA in respect of artificial resins, plastic
materials of various types and articles thereof is leviable under s. 3
read with Chapter 39, containing heading nos. 39.01/06 and 39.01/07
in section VII of the First Schedule to the CTA. This aspect found a
reference in the original notification no. 228 but was omitted, appa-
rently as being redundant, by the aniendment of 29.11.1976. In Note 3
at the commencement of the said Chapter 39, clause (c) talks of
                                                                              c
"seamless tubes, rods, sticks and profile shape while clause (d) refers
to "plates, sheets, films, foils and strips". This indicates that plates,
sheets, films, foils, etc. are categories of plastic articles distinct from
one another.
                                                                              D
      (2) Notification No. 228 contains a reference to the tariff
schedule under the Central Excises & Salt Act, 1944 (CESA). The
CESA, read with item 15A of its First Schedule, provides for the levy
of an ad valorem duty of excise on all "artificial or synthetic resins and
plastic materials and cellulose esters and ethers and articles thereof"
described in greater detail in sub-items (1) to (4) thereunder. Of these,     E
sub-item (2) reads:

            (2) Articles made of plastics all sorts, including tubes,
            rods, sheets, foils, sticks, other rectangular or profile
            shapes, whether laminated or not, and whether rigid or
            flexible, including lay flat tubings and polyvinyl chloride       F
            sheets, not otherwise specified";

and Explanation I appeanded to item 15A clarifies:

            "For the purpose of sub-section (2), "plastics" means the
            various artificial or synthetic resins or plastic materials or    G
            cellulose esters and ethers included in sub-item (1)".

Comparing item 15A of the CESA tariff with the notification under
consideration, it will be seen that the intention was to exempt, from
countervailing duty, "articles made of plastics, all sorts" (the expres-
sion "plastic" having the very wide meaning given to it in Explanation        H
    236          SUPREME COURT REPORTS                 [1989] Supp. 1 S.C.R.

A I of the CESA tariff) and falling within the main part of sub-item (2) of
  item 15A and to deny exemption to goods which fall under the second
  (inclusive) part of the said sub-item. In this context it is of some
  interest to refer to item 15A as substituted by the Finance Act, 1982.
  This item describes in greater detail than before various "artificial and
  synthetic resins and plastic materials" liable to duty. Of these item (2)
B reads:

                "Article of materials described in sub-item ( 1) including
                the following, namely:

                Boards, sheeting, sheets and films, whether lacquered or
                metallised or laminated or not: layflat tubings not contain-
c               ing any textile material.

    This item, it will be seen, does not stick to the classification made
    earlier in sub-item (2). However, it does make a distinction between
    "sheeting, sheets and films".
D
           (3) There are a number of exemption notifications issued under
    rule 8(1) of the Central Excise Rules in respect of items falling under
    Item No. 15A of the CESA Tariff which make a pointed reference to
    'films' and draw a similar distinction as above. Notification No. 68 of
     1971 dated 29.5. 1971 exempts articles made of plastics, all sorts, falling
E   under sub-item (2) of Item No. 15A except (i) rigid plastic boards,
    sheeting, sheets and films, whether laminated or not; and (ii) flexible
    polyvinyl chloride sheeting, sheets, films and lay-flat tubings not con-
    taining any textile l!laterial. Notification No. 69 of 1971, dated
    29.5.1971; read with notification No. 7417 and 107 /73, exempts articles
    made of polyurethane foam except, inter alia, sheets and sheetings.
F   Notification No. 70 of 1971, of the same date, restricts the duty on
    rigid polyvinyl chloride boards, sheeting, sheets and films. Notifica-
    tion No. 71of1971, also of the same date, grants limited exemption,
    subject to certain conditions to rigid plastic boards, sheeting, sheets
    and films, whether laminated or not, other than those manufactured
    from polyvinyl chloride. Notification No. 72 of 1971 of the same date
G   limits the excise duty in respect of flexible polyvinyl chloride sheeting,
    sheets, films and lay-flat tubings, not containing any textile material
    and falling under sub-item (2) of Item No. 15A to 25 per cent
    (amended later to 30%) ad valorem, subject to certain conditions.
    Notification No. 39 of 1973 dated 1.3.1973, exempts rigid and flexible
    polyvinyl chloride films of thickness below 0.25 mm as well as
H   _p.o!yvinyl chloride lay flat tubings in certain circumstances. By notifi-
 COLLECTOR OF CUSTOMS v. K. MOHAN & CO. [RANGANATHAN, J.I                 237
                                               •
cation No. 151 of 1975 dated 31. 5 .1975 exemption was granted in                A
respect of cellulose tri-acetate, when intended for use in \he manufac-
ture of cine-films, X-ray fihns or photographic fihns. Item 15B talks of
"film or sheet" of cellulose and a notification of 1981 specifically
added item 15BB to the Tariff under CESA dealing with polyster films
as a separate item, though this entry was subsequently omitted by the
Finance Act of 1982. All these indicate that 'film' is a well-known,             B
distinct and independant category of plastic article known to
commerce.

       (4) There is a like distinction maintained even by the notifica-
tions issued under section 25 of the Customs Act in regard to items
falling within chapter 39 of the First Schedule to CETA. Notification
No. 227 dated 2.8.1976 limits the rate of duty on various items, two of
                                                                                 c
which are- "fihn scrap" and "cellulose nitrate sheets and cellulose
nitrate fihns". We then have notification No. 223 of the same date,
which falls for interpretation now and which omits a reference to
"films" while enumerating various other categories of plastic articles.
Notification No. 129, also of 2nd August, 1976, restricted the customs           D
duty on metallised or plain plastic fihns imported for certain SQecified
purposes to 60%. Notification Nos. 230 dated 2nd August, 1976 and 36
of 1.3.1978, also granted limi.ted exemption to other types of·polxster
films. (We must, however, point out that these last two notifications
are somewhat ambiguous for our present purposes' as they also specifi-
cally provide for an exemption to the said articles from the additional          E
duty which, on the argument of the assessee before us, would be really
unnecessary.

       The Revenue's stand is that the articles in question may be fihns
 in a generic sense but that, in this particular case, they are either 'foils'
 or 'sheets'. For this purpose our attention is drawn to the discussions         F
 contained iii the Bombay case where the issue was decided on the basis
 of evidence produced by both parties. This shows that according to the
·glossary of terms used in the plastic industry issued by the Indian
 Standards Institution (IS 2828-1954, as well as in 1979), a film is "a
sheeting having nominal thickness not greater than 0.25 mm". A
report of the Chief Chemist of the Customs Department as well as                 G
extracts from certain text books were produced to show that 'foil' is
the term "applied to materials which are made in continuous rolls and
are less than l/lOOOth of an inch thick (0.254 mm). In the.present case,
the fihn rolls were of thickness varying between 0.025 mm to 0.501
 mm. It is, therefore, submitted that to the extent the material was less
 than .0254 mm in thickness it would constitute 'foils' and to the extent        H
    238          SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R.
                                •
    it exceeded 0.25 mm in thickness it will be a 'sheet'. It is urged that
A
    since 'sheets' and 'foils' are specifically mentioned in the entry in ques-
    tion, the imported goods, at least to the extent indicated above, cannot
    qualify for exemption.

           The answer given by the Bombay High Court to the contention
B   that the goods were 'foils' was that while it may be.that, technically
    and scientifically speaking, the articles in question may be capable of
    being characterised as 'foils', one is concerned in a customs or excise
    matter not so much with the technical or scientific definitions of these
    terms but rather with commercial usage. One has to see how the trade
    understands the expression "films" and one should also bear in mind
    in this connection that the expressions set out in the table are applic-
c   able not merely to the articles with which we are at present concerned
    but also to various other types of articles of plastics with varied com-
    mercial use. The question is whether the trade understands the article
    presently in question as a 'film' or whether there is a distinction in
    trade usage also between 'foils' and 'films'. It has been pointed out by
D   the Bombay High Court, on the basis of the evidence before it, that in
    the understanding of those who are in this particular trade, metallised
    polyester films are referred to as 'films'. Reference has been made to
    the classification made by the only manufacturer of polyester films in
    India for purposes of CEA. Reference has also been made to the
    brochures brought out by the Japanese manufacturers of the goods in
E   question which show that metallised polyester 'films' could consist of
    films of the thickness of even 12 to 25 microns. It has been pointed out
    that, under the Import,Export Policy of India for 1984-85, reference
    has been made to metallised polyester 'films' having thickness of even
    less than 6 microns which are used in the electronic industry.

F         In the light of the above material and the absence of any addi-
   tional material led in the present case, we agree with the view of the
   Bombay High Court that, though for certain purposes there is a dis-
   tinction between 'films', 'foils' and 'sheets', so far as the article pre-
  .sently in question is concerned it is recognised in trade only as 'film'. It
   is difficult to imagine any person going to the market and asking for
G these films by describing them either as 'foils' or as 'sheets'. We are
   therefore of opinion that the goods under .consideration cannot be
   described either as 'foils' or as 'sheets'.

         There is also another reason why the articles in the present case,
   to the extent they have thickness of more than 0.25 mm cannot be
H ·described as 'sheets'. Shri Ganesh for the assessee conknded-and we
     COLLECTOR OF CUSTOMS v. K. MOHAN & CO. (RANGANATHAN, J.]            239

     think rightly-that a film roll of indefinite length and not in the form of A
     individual cut pieces can be more appropriately described as 'sheet-
     ings' rather than 'sheets'. The Indian Standard Institution also defines
     'sheets' as a piece of plastic 'sheeting' produced as an individual piece
     rather than in a continuous length or cut as an individual piece from a
     continuous length. We have also earlier pointed out that there are B
     various items in various notifications making distinct reference to
     sheets and sheetings. Actually, we also think that there is a factual
     confusion on this aspect. While one of the Collectors has referred to
     the goods as being of thickness varying between 0.025 mm and 0.501
     mm, it is seen from another of the orders that the goods are 3000
     metres in length, 0.501 mm in width and 0.025 mm in thickness. If the
     latter is the correct version and all the goods are only 0. 025 mm ih C
     thickness, the question now posed will not at all arise. Howeve1, as
     indicated above, there is force in the contention of Shri Ganesh that if
     the articles be held not to be 'films', because they exceed 0.25 mm in
     thickness, they would ,be '.sheetings' rather than 'sheets' and would
     therefore not fall within the meaning of the expression "sheets" in the D
     table.

           We would also like to add that the expression 'other rectangular
      or profile shapes' in the table 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 therfore they are outside the table as already
     pointed out. For the same reasons as we have mentioned in the context E
     of 'foils' and 'sheets'; it will not be possible to accept the contention
     that articles which have a, clear commercial identity as 'films' shOuld be
     brought within the wide and vague elCpression "other rectangular or

-.   profile shapes", because, if the film is cut into small pieces, each piece
     will be rectangular in shape. The iiems iniported do not come in a
     rectangular shape ;they ar-e imported as rolls of polyester films. they F
     are not articles of rectangular shape. Nor would it be possible to treat
     them as of other 'profile' shapes. We are unable to-at_tribute any pre-·
     cise meaning to the expression 'profile' shape but it cannot be taken to
     be comprehensive enough to take in any shape whatever, as is con-
     tended for. If we give the expression 'rectangular or other profile G
     shapes' in the table such wide and unrestricted interpretation as is
     suggested, then practically any article of plastic can be brought within
     the meaning of one or other of the expressions used in the table and
     thus the entire exemption can be altogether deprived of any content.

          For the above reasons, we are of opinion that the articles are



                                                                                    I
    240         SUPREME COURT REPORTS              [1989] Supp. 1 S.C.R.

A   'films' and, as this expression does not find specific mention in the
    table, the assessee is entitled to exemption under the main part of the
    notification. The conclusion arrived at by the Tribunal is therefore
    upheld and these appeals are dismissed with no orders as to costs.

    Y. Lal                                             Appeals dismissed.
B