M/S COLGATE PALMOLIVE (INDIA) LTD.versusCOMMISSIONER OF CUSTOMS, PATNA

                         [2016] 5 S.C.R. 1013


           M/S COLGATE PALMOLIVE (INDIA) LTD.                            A
                                  v.
             COMMISSIONER OF CUSTOMS, PATNA
                    (Civil Appeal No. 8593 of2003)
                          AUGUST 24, 2016                                B

        [DIPAK MISRA AND PRAFULLA C. PANT, JJ.)
        Customs Act, 1962 - s.25 - Issuance of Notification No. 371
  1996-Customs dated 23. 7.1996, pursuant'to Treaty of Trade between.
  India and Nepal - Exempting specified goods, from customs duty .C
  leviable under First Schedule to the Customs Tariff Act, 1975 when
  imported from Nepal to Iridia - Appellant was entitled to .the
  exemption under the Notification on the imported goods from Nepal
  - Iniroduction of s. 3A in Tariff Act levying 'Special Additional D'Uty'
  in the year 1998 - Notification No. 1812002-Customs dated 1.3.2000
  prescribed the rates of 'Spectal Additional Duty' - Demand of D
   'Special Additional Duty'from the appellant - Paid under protesr-
  Thereafter, Notification No: 12412000-Custonis" dated 29.9.2000 ·
  amending Notification dated 23. ?.1996 -Application by appellant
  seeking refund of 'Special Additional Duty', on the ground that
  Notificatio.n dated 29.9.2000 had enlarged the scope of exemption,
                                                                           E
  under Notification dated 23. 7.1996, from 'basic customs duty' by
  including 'Special Additional Duty'; and that levy of 'Sp.ecial
  Additional Duty' uls. 3A since was contrary to the terms of t~e Treaty,
  Notification dated 29.9.2000 rectified the same and therefore the
  Notification dated 29.9.2000 was clarificatory in nature and had
  retrospective affect - Application waJ rejected - Appeal thereagainst F
  dismissed - On appeal, held:- 'Special Additional Duty,' was
   introduced in the year 1998 by insertion of s.3A of TariffAct -
  Such duty was not leviable and enforced when the Treaty of Trade
   was signed or protocol thereto was executed - The protocol could .
   not have conceived of future levy by way of proposition - The
                                                                           G
   exemption granted by Notification dated 29.9.2000 was in the nature
: of specific and new exemption from payment of. 'Special Additional
· Duty: and not clarificatory to give effect to the existing protocol -
   The Notification was intended to be applied prospectively -
   Therefore, appellant not entitled to refimd of 'Special Additional
   Duty' - Customs Tariff Act, 1975 - s.3A. ·                              H
                                    1013
1014            SUPREME COURT REPORTS                      [2016] 5 S.C.R.


 A          Dismissing the appeals, the Court
             HELD: 1. The protocol to the Treaty of Trade had made a
       distinction between the "basic customs duty" and "additional
       customs duty". The basic customs duty was granted exemption.
       However, in respect of "additional duty" provisions of paragraph
 B     3 or 4 were applicable. But, the said protocol did not deal with
       special additional duty. Thus, per se and ex/acie it is not possible
       to accept the position that "special additional duty" was itself
       exempted under the protocol. Paragraph 1 of the protocol would
       not cover the "special additional duty", which was specific and
       limited as was clear from the exemption notification dated 23'd
 c     July, 1996. It was restricted to the goods specified in column 2
       of the First Schedule from the customs duty Ieviable under the
       First Schedule to the Tariff Act. In fact, special additional duty
       was not leviable and enforced when the Treaty of Trade was signed
       and the protocol was executed. It cannot be said that Clause 1 of
 D     the protocol had included and had embraced the "special
       additional duty", which was introduced in the form of Section 3A
       enacted in 1998. [Para 28] [1027-D-F]
          2. The exemption which was granted by notification dated
  ' 29th September, 2000 was, therefore, in the nature of specific and
 E new' "exemption from payment of specia't additional duty, which
    was otherwise payable in view of the introduction of Section 3A
    to the Tariff Act. It cannot be said that the exemption granted
    vide notification dat.ed 29th September, 2000 to special additional
    duty. was clarificatory or to give effect to the existing protocol.
    The protocol appended to the Treaty could not have conceived
 F of future levy by way of proposition. In any case, factually it does
    not. Therefore, the notification of 29th September, 2000 conferred
    a new benefit which was not earlier stipulated or the subject matter
    of protocol. (Para 29] [1027-G-H; 1028-A]
             Hyderabad Industries Limited v. Union of India 1999
 G           (108) ELT 321 SC - relied on.
             Associated Cement Companies Limited v. Commissioner
             2001 (128) ELT 21 SC; W.P.I.L. Limited v. Commissioner,
             Central Excise 2005 (181) ELT 259 SC; Raison India
             Limited v. Commissioner of Central Excise, Chandigarh
H
MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1015
               OF CUSTOMS, PATNA

       2015 (319) ELT 234 ·sc - distinguished.                          A
       Kaur Sain Traders v. Union of India 2005 (2) PLJR
       744; Apas Private Limited v. Union of India 1985 (22)
       ELT 644 Bombay - approved.
       UOI v. Yokasawa Blue Smart 2001 (129) ELT 598
       (KAR); Nestle India Ltd. v. State of Punjab 1999 (13)            B
       PHT 132 (P&H) - referred to.
                          Case Law Reference
       2001 (129) ELT 598 (KAR)         referred to      Para 17
       1999 (13) PHT 132 (P&H)          referred to      Para 17        c
       2005 (2) PLJR 744                approved         Para 30
       2001 (128) ELT 21 SC             distinguished    Para 30
       1999 (108) ELT 321 SC            relied on        Para 30
       1985 (22) ELT 644 Bombay         approved         Para 30        D

       2005 (181) ELT 259 SC            distinguished    Para 32
       2015 (319) ELT 234 SC            distinguished    Para32
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8593 of
WOO.                                                  ··~               E
     From the Judgment and Order dated I 7.06.2003 of the Customs,
Excise and Service Tax Appellate Tribunal, E.Z.B., Kolkata, in Appeal
No. C/216/02
                                 WITH
                                                                        F
       C. A. NO. 8309 OF 2916.
     S. Ganesh, Sr. Adv., Ajay Aggarwal, Ms. Mallika Joshi, Ms.
Ruchika, Rajan Narain, Prateek Rusia, Gaurav Agrawal, Advs. for the
Appellant.
     A.K. Panda, Sr. Adv., Ms. Nisha Bagchi, Arijit Prasad, Ms.         G
Ruksana Chowdhary, Ms. Pooja Sh,arma, B. Krishna Pras\ld, Advs. for
the Respondent.
       The Judgment of the Court was delivered by

                                                                        H
              SUPREME COURT REPORTS                      . [2016]'5 S.C.R.



A        DIPAK MISRA, .J. I. Leave granted in SLP. (Civil) No. 11487
    of2006.
       ~                    ~   ·..
           2. Keeping in view.the ne~d to fortify the traditional connection
    and strei:igthen the e<?onbmic coqperation for the purpose of development
    and mutual benefit, th~ .Governtpent of Indii1; had .signed the Treaty of
B   Trade witl~ His Majesty's Government of Nepal.in July, 1996. Articles
    III, IV and V of the said Treaty read as.fpllows;-
                                      " Article III
           Both the contracting parties shall accord unconditionally to each
           other treatment no less favourable than that accorded to any third
c          country with respect to (a) customs duties and charges of any
           kind imposed on or in connection with importation and exportation
          .and (b) import regulation.s includi~g qu;mtitative restrictions.
                                      'Article IV

D         The contracting parties agree, on a.reciprocal basis,. to exempt
          from basic customs duty as well as from quantitative restrictions
          the import of such primary products as m~y be mutually agreed
          upon, from each other.                . ' · · ,·
                                       Article V
E        ·Notwithstanding the provisions of Atticle III and subject to such
          exceptions as may be made after consultation with His Majesty's
          Government of Nepal, the govemmentoflndia agree to promote
          the industrial development ofNepal through the grant on the basis
          of non-reciprocity of specially favourable treatment to imports
          into India of industrial products manufactured in Nepal in respect
F
          of customs duty and quantitative restrictions normally applicable
          to them".
          3. The protocol to the Treaty with reference to Article V stipulated
    many clauses. With reference to Article V cla~ses which are relevant
    are reproduced below:~                          ·        ·
G
          "J.. The Government of India will provide access to the Iitdran
          market free of customs duties and the quantitative restrictions for
         ·all articles manufactured in Nepal..
                     xxxx                xxxx          xxxx
MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1017
        OF CUSTOMS, PATNA [DIPAK MISRA, J.]

       3.' On the basis of a Certificate issued, for each consignment of         A
     · produ~ts m~nufactured in the small scale units in Nepal, by His
       Majesty's Government of Nepal, or by an agency designated by
       His Majesty's government of Nepal that the relevant conditions
       applicable to the products manufactured jn similar small scale
       industrial units in India for relief in the levy ofapplicable Excise
                                                                                 B
       Duty rates are fulfilled for such a parity, Government oflndia will
       extend parity in the levy of Additional duty on such Nepalese
       products equal to the treatment provided in :the levy of effective
       Excise Duty on similar Indian products under the Indian customs
       and Central Excise Tariff.
      4. The "Additional Duty" rates equal to the effective Ihdian Excise
                                                                                 c
      duty rates applicable to similar Indian Products under the Indian
      Customs & Central Excise Tariff will continue to be levied on the
      imports into India of products manuf11ctured.i11the medium af?.d
      large scale units in Nepal.
       4(i) In regard to "additional duty".collected by the Government           D
       of India in respect of manufactured articles other than those
       manufactured in "small" units: Wherever it is established that the
       cost of production of an articles is higher in Nepal than the cost of
       production in a corresponding unit iri fodia, a sum representing
       such difference in the cost of productiori, but not exceeding 25          E
       percent of the "additional duty" collected by the Government of
      ·India, will be paid of His Majesty's Government ofNepal provided.
       Hi!\ Majesty's Government ofNepal have given assistance to the
     . same .e]\tent to the (manufacturers) exporters". .
        4. ·Pursuant to the aforesaid Treaty, the Government ofindia issued      F
a Notification No. 37of1996 dated 23.7.1996, in exerCise of powers
under Section 25 of the Customs Act, 19.62 (for short; "the Customs
Act") whereby specified goods in the notification when imported into.
India from Nepal were exempted "from the whole'; of the cus.toms duty
leviable under the First Schedule to the CustOms Tiµ-iff Act, 1975 (for
brevity, "the TariffAct'') subject to the conditions, jf any, specified in the   G
corresponding entry in column (3) of the Table to the.notification. There
is rio dispute that the appeilant who was importing various dentai hygiene
products from Nepal was entitled to avail exemption under the notification.
As the factual matrix would unveil, it was availing the exemption from
the customs duty under the notification.                                         H
1018             SUPREME COURT REPORTS                             [2016] 5 S.C.R.



A            5. In the year 1998, Section 3A was introduced in the Tariff Act.
       To appreciate the scheme of the Tariff Act, it is desirable to refer to
       Section 2 of the Tariff Act, which reads as follows:-
             "Section 2 : Duties specified in the Schedules to be levied.
             The "rates at which duties of customs shall be levied under the
 B           Customs Act, 1962 (52 of 1962), are specified in the First and
             Second Schedules."
            Schedule I to the Tariff Act incorporates the duties on the imports
       and Schedule II on the exports.
             6. Section 3 of the Tariff Act specifies about the levy of additional
 c     duty equal to excise duty. It is as follows:-
             "Section 3: Levy of additional duty equal to excise duty. -
             (l) Any article which is imported into India shall, in addition, be
             liable to a duty (hereafter in this section referred to as the Additional
             duty) equal to the excise duty for the time being leviable on a like
 D           article if produced or manufactured in India and if such excise
             duty on a like article is leviable at any percentage of its value, the
             additional duty to which the imported article shall be so liable shall
             be calculated atthat percentage of the value of the imported article.
                   Provided that in case of any alcoholic liquor for human
 E           consumption imported into India, the Central Government may,
             by notification in the Official Gazette, specify the rate of additional
             duty having regard to the excise duty for the time being leviable
             on a like alcoholic liquor produced or manufactured in different
             States, or, if a like alcoholic liquor is not produced or manufactured
             in any State, then, having regard to the excise duty which would
 F
             be leviable for the time being in different States on the class or
             description of alcoholic liquor to which such imported alcoholic
             liquor belongs."
             7. Section 3A which has been introduced in 1998 provides for
       impo.sition of special additional duty. The relevant portion of the said
 G
       Section reads as follows:-
              "3A. Special additional duty. -( 1) Any article which is imported
              into India shall in addition be liable to a duty (hereinafter referred
              to in this section as the special additional duty), which shall be
              levied at a rate to be specified by the Central Government, by
 H
MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1019
        OF CUSTOMS, PATNA [DIPAK MISRA, J.]

      notification in the Official Gazette, having regard to the maximum       A
      sales tax, local tax or any other charges for the time being leviable
      on a like article on its sale or purchase in India:
           Provided that until such rate is specified by the Central
      Government, the special additional duty shall be levied and collected
      at the rate of eight percent of the value of the article imported into   B
      India."
      8. After the said provision came into force, Notification No. 18/
2000-Customs was issued on 1''March, 2000. By the said notification
the Central Government prescribed the rates of special duty. Relevant
part of the notification is reproduced below:-                                 C
                 "Notification No.18/2000-Customs
      In exercise of the powers conferred by sub-section ( 1) of section
      3A of the Customs Tariff Act, 1975 (51 of 1975) (hereinafter
      referred to as the Customs Tariff Act), the Central Government,
      having regard to the maximum sales tax, local tax or any other           D
      charges for the time being leviable in the like goods on their sale
      of purchase in India, hereby specifies the rates of special additional
      duty as indicated in column (4) of the Table below in respect of
      goods, when imported into India, specified in.corresponding entry
      in column (3) of the said Table and falling within the Chapter,          E
      Heading No. or Sub-Heading No. of the First Schedule to the
      Customs Tariff Act as are specified in the corresponding entry in
      column (2) of the said table:
      Provided that in respect of the goods specified against S. Nos. 24,
      25, 26, 31 and 32 of the said Table, "Nil" rate shall be stibject10~ F
      the conditions, if any, subject to which the goods are exempt either
      partially or wholly from the duty of customs leviable thereon which
      is specified in the First Schedule to the Customs Tariff Act."
      9. After the rates were prescribed, the appellant was asked to pay
Special Additional Duty (SAD) and it paid under protest. Thereafter,
                                                                               G
Notification No. 124/2000-Customs was issued on 29 .09 .2000 amending
the Notification No. 37/96-Customs dated 23'd July, 1996. For proper
appreciation of the controversy, it is appropriate to reproduce the contents
of the said notification:-
                 "Notification No. 124/2000-Customs
                                                                               H
1020            SUPREME COURT REPORTS                            [2016] 5 S.C.R.


A            In exercise of powers conferred sub-section (4) of Section 3A of
             the Customs Tariff Act, 1975 (51 of 1975) read with sub-section
             (1) of section 25 of the Customs Act, 1962 (52 of! 962), the Central
             Government being satisfied that it is necessary in the public interest
             so to do, hereby makes the following further amendment in the
             notification of the Government oflndia in the Ministry of Finance
 B
             (Department of Revenue), No. 37/96-Customs, dated the 23'd
             July, 1996, namely:-
             In the said notification, for the words and figures "from the whole
             of duty of customs leviable thereon under the First Schedule to
             the Customs Tariff Act, 1975", the words, figure and letter "from
c            the whole of the duty of customs Jeviable thereon under the First
             Schedule to the said Customs Tariff Act, and special additional
             duty leviable under section 3A of the said Customs Tariff Act"
             shall be substituted."
             I 0. After the said notification was issued, the appellant filed an
D      applicatfoi10ri 15.01.2001 for refund of Special Additional Duty (SAD)
       paid in respect of the imports made from Nepal during the period
       01.03.2000 to 29.09.2000. The authority concerned rejected the said
       application preferred by the appellant. Eventually, the matter came up
       in appeal being Appeal No.C-216/02 before the Customs, Excise & Gold
 E     (Control) Appellate Tribunal, Kolkata (for short, ''tribunal").
         11. The stand of the appellant before the tribunal was that
   Notification No: 124/2000which amended the earlier Notification No.
   3 7/96 and enlarged the scope of exemption from basic customs duty by
   including SAD, should be considered as retrospective in view of the
F language employed in the Treaty entered into between the two countries.
   It was urged that all goods manufactured in Nepal and imported into
   India would be exempted from customs duty and equal to the excise
   duty for .the time being leviable on similar products manufactured in
 · India and ~ per the said Treaty, no SAD was leviable and hence, the
   notification-dated 29.09.2000 was clarificatory in nature. It was further
G contended that levy of SAD after the rates were fixed was contrary to
   the terms of the Treaty and, therefore, it was rectified by issuing the
   Notification No. 124/2000 and, therefore, the appellant was entitled to
   refund of the amount which was paid towards SAD. It was further
   argued that on the basis of the representations made by the appellant
H and others seeking clarification on the leviability of SAD Notification
MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1021
        OF CUSTOMS, PATNA [DIPAK MISRA, J.]

No. 124/2000 was issued and hence, it was retrospective in nature.               A
      12. On behalf of the revenue, resisting the stand put forth by the
assessee, it was submitt(ld that prior to 29.09.2000 SAD was correctly
levied in respect of the imports and there is no justification in treating the
notification in question as retrospective, more so, when the _notification
has clearly stated about scope of its applicability.                             B
      13. The Member (Judicial) analysing the terms of the Treaty and
the need for issuance of notification opined that:- ·
       " ... If the terms of the Treaty by themselves were to be treated
       as law, then there was no need for the Government of India to
       even issue. the notification exempting imports from the Basic c
       Customs Duty. As rightly observed by the original adjudicating
       authority that undoubtedly, the Treaty provides the framework for
       the bilateral trade between the two countries; but the actual import
       and export is governed l:iy the Customs and Central Excise Statutes
       and the provisions of the Treaty do not, ipso facto, translate into D
       import and export procedures within India until a corresp,onding
       notification in Customs is issued to bring the same into effect.
       We are of the view that it may be lapse on the part of the.
       Government of India not to issue the notification exempting the
       imports from SAD prior to 29.09.2000, but that lacuna cannot be.
       filled by the judiciary and .it is not our job to discuss as to what E
       notifications the-Cfoveniment should have issued or not to further
       the cause of the Treaty between the two·countries."
      14. After stating so, the learned Member (Judicial) explaining the
stand pertaining to clarificatory aspect of the notification observed that
the exemption notification could not be considered to be having                  F
retrospective effect and any exemption provision which enlarges the
scope of earlier notification cannot be considered to be clarificatory.
The learned Member (Judicial) further opined that earlier notification
did not even remotely suggest that exemption from basic customs duty
also included the exemption from SAD. That apart, it was held by the             G ·
learned Member (Judicial) that the earlier notification exempted from
basic custom duty and the latter from the SAD. Being of this view, the
learned Member (Judicial) dismissed the appeal.             t

      15. The Member (Technical) expressed his dissent and opined
that once a Treaty had been entered by the Central Government, the.              H
1022            SUPREME COURT REPORTS                         [2016] 5 S.C.R.


A      issue of notification under the provisions of the Customs Act, 1962 is a
       ministerial act. According to the learned Member (Technical), the
       notification dated 29.09.2000 was a belated response to effectuate the
       terms of the Treaty. Elaborating further, the learned Member (Technical)
       observed that if it was a simplicitor amendment to exempt or reduce the
       rates on certain specified imports, then an amendment would have been
 B
       required to be made to the Notification No. 18/2000-CUS dated
       01.03.2000 and not to Notification No. 37/96 and that having been not
       done, it can be safely concluded that there was a belated reference and
       the real intention was to give retrospectivity to the notification.
           16. It is apt to reproduce the observations made by the learned
 c     Member (Technical):-
             " ... A Treaty entered into with a Sovereign State cannot be
             reneged, merely for want of an act of ministerial lapse or delay,
             the Treaties have to be given effect to. When such lapses are
             cured, subsequently by amendments, such amendment notifications
 D           have to be retrospective in operation .... "
            17. To come to such a conclusion, he placed reliance on UOI v.
       Yokasawa Blue Smart1 and Nestle India Ltd. v. State of Punjab=.
             18. After so stating, the learned Member (Technical) opined that
 E     the matter should be referred to a larger Bench for a decision whether
       amendment in such cases could be read retrospectively or not. As there
       was difference of opinion, the matter was placed before the third Member
       who was a Member (Technical). He referred to the point of difference
       which is to the following effect:-
             "Whether the appeal is required to be rejected as held by Member
 F
             (Judicial) or the matter needs to be referred to the Larger Bench
             as held by Member (Technical)."
             19. The third Member referred to the views of the Member
       (Judicial) and Member (Technical) in extenso; noted the submissions
       advanced by the learned counsel for the parties; scanned the various
 G
       clauses of the Treaty; analysed the language employed in the notification
       dated 29.09.2000; distinguished the authorities relied upon by the Member
       (Technical); declined to accept the submission pertaining to doctrine of

       I 2001 (129) ELT 598 (KAR)
       ' 1999 (13) PHT 132 (P&H)
 H
MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1023
        OF CUSTOMS, PATNA [DIPAK MISRA, J.]

promissory estoppel that was canvassed before him and eventually, came       A
to hold that both the notifications are independent and both would be
applicable from the date they had been issued and they do not remotely
suggest any retrospectivity. He further opined that there was no ambiguity
in the earlier notification or in the subsequent Notification No.124/2000
and both the notifications operate in special fields - one granted
                                                                             B
exl:mption from basic customs duty and the other SAD of customs.
Being of this view, he agreed with the Member (Judicial) and ultimately,
the appeal stood dismissed.
     20. We have heard Shri S. Ganesh, learned senior counsel for the
appellant in Civil Appeal No. 8593 of2003 and Shri A.K. Panda, learned
senior counsel appearing for the respondents.
                                                                             c
      21. To appreciate the controversy in proper perspective, it is
appropriate to understand the nature of the Treaty, the protocol appended
thereto, the benefits extended thereunder, the impact of the two
notifications and the nature of duty that was exempted.
                                                                             D
      22. Article 3 states that the contracting parties shall accord
unconditionally to each other treatment not less favourable than what
was accorded to a third country in respect of the customs duties and
other charges relating to import and export including quantitative
restrictions. Article 4 relates to reciprocal arrangement between the
two contracting parties to exempt basic customs duty and quantitative        E
restrictions on import as would be mutually agreed. Having referred to
Articles 3 and 4, it is necessary to focus on Article 5. The said Article
begins with non-obstante expression and would apply notwithstanding to
Article 3. It is non-reciprocal. This Article states that the Government
of India had agreed to promote industrial development of Nepal and           F
further agreed to grant special favourable treatment to imports into India
of industrial products manufactured in Nepal in respect of customs duty
and quantitative restrictions normally applicable to them. The words
used in Article 5 are "customs duties". The non-reciprocal grant would
be subject to exceptions as may be made after consultation with the
Government ofNepal. As is evident, the Treaty was to be operative for        G
a period of five years from 51h December, 200 I.
      23. We have already reproduced certain paragraphs from the
Protocol. To have the correct perspective it is required to be quoted in
entirety. It reads as follows:-
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1024      SUPREME COURT REPORTS                           [2016] 5 S.C.R.


A      "I. The Government of India will provide access to the Indian
       market free of customs duties and the quantitative restrictions for
       all articles manufactured in Nepal.
       2. (i) Import of articles in accordance with the para "I" above
       shall be allowed by the Indian customs authorities on the basis of
 B     a certificate of Origin to be issued by the agency designated by
       His Majesty's Government of Nepal in the format prescribed at
       Annexure 'B' for each consignment of articles exported from
       Nepal to India. However, this facility shall not be available for
       the articles listed at Annexure 'C'.
 c     (ii) In the event of the above facility leading to a surge in the
       import generally or in the import of any particular article, the two
       Governments shall enter into consultation with a view to taking
       appropriate measure.
       (iii) In the case of other articles made in Nepal which do not fulfill
 D     the conditions required by the Certificate of Origin prescribed at
       Annexure 'B' including those Articles listed at Annexure 'C' for
       the purpose of Preferential treatment into India, the Government
       oflndia will provide normal access to the Indian market consistent
       with its MFN treatment.
 E     3. On the basis of a Certificate issued, for each consignment of
       products manufactured in the small scale units in Nepal, by His
       Majesty's Government of Nepal, or by an agency designated by
       His Majesty's Government of Nepal that the relevant conditions
       applicable to the products manufactured in similar small scale
       industrial units in India for relief in the levy of applicable Excise
 F     Duty rates are fulfilled for such a parity, Government oflndia will
       extend parity in the levy of Additional duty on such Nepalese
       products equal to the treatment provided in the levy of effective
       Excise Duty on similar Indian products under the Indian customs
       and Central Excise Tariff.
 G     4. The "Additional Duty" rates equal to the effective Indian Excise
       duty rates applicable to similar Indian Products under the Indian
       Customs & Central Excise Tariff will continue to be levied on the
       imports into India of product manufactured in the medium and
       large scale units in Nepal.
 H
M/S COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1025
        OF CUSTOMS, PATNA [DIPAK MISRA, J.]

     4(i) In regard to "additional duty" collected by the Government of        A
     India in respect of manufactured articles other tl:ian those
     manufactured in "small" units: Wherever it is established that the
     cost of production ofan articles is higher in Nepal than the cost of
     production in a corresponding unit in India, a sum representing
     such difference in the cost of production, but not exceeding 25
                                                                               B
     percent of the "additional duty" collected by the Government of
     India, will be paid of His Majesty's Government ofNepal provided.
     His Majesty's Government ofNepal have given assistance to the
     same extent to the (manufacturers) exporters.
      5. Export of consignments from Nepal accompanied by the
      Certificate of Origin will normally not be subjected to any detention/
                                                                               c
      delays at the Indian Customs border, border check posts and other
      places enroute. In case any need for clarification arises, this will
      be obtained expeditiously, by the Indian b'order customs authorities
      from the Indian and Nepalese authorities, as the case may be.
      6. Where for social and economic reasons, the import of an item          D
      into India is permitted only through public sector agencies or where
      the import of an item is prohibited under the Indian Trade control
      regulations, the Government oflndia will consider any request of
      His Majesty's Government ofNepal for relaxation and will permit
      the import of such an item from Nepal in such a manner as may            E
      be found to be suitable.
      7. '?or the purpose of calculation ofimportduties customs valuation
      procedures, as prescribed under the prevailing custom law, will
      be followed."
       24. No doubt paragraph I states that the Government of India F
would provide access to Indian market free from customs duties and
quantitative restrictions of all articles manufactured in Nepal, but this
would be subject to other paragraphs, for paragraph 2 would indicate
that the access to Indian market free from customs duty was subject to
conditionalities and also restrictions. Paragraph 2 stipulates, the G
requirement of certificate of origin which shou Id be as per the proforma
prescribed by Annexure Band would not be applicable to Articles listed
in Annexure-C for which normal access consistent with most favourable ·
nations' Treaty would be provided. Clause 3 deals with products
manufactured by small-scale units in Nepal for which certificate would
                                                                          H
1026             SUPREME COURT REPORTS                            [2016] 5 S.C.R.



 A     be issued by the Government of Nepal or agency designated by them.
       For the said imported products, "reliefs" in the levy of excise duty
       applicable to products manufactured by similar small-scale industrial units
       in India, while fulfilled by the Nepalese small scale manufacture would
       apply. This clause, as we notice, gave parity and equal treatment to
       goods/products manufactured by small scale industrial units in Nepal as
 B
       was applicable to small-scale industrial units in India, who had been
       granted relief in relation to applicable to Indian customs and Central
       Excise Tariff.
              25. It is pertinent to note here that the relief agreed related to duty
       chargeable under the head of "additional duty". Clause 4 dealt with
 c     "additional duty applicable" on products manufactured by medium or
       large-scale units in Nepal in which case they were liable to pay additional
       duty equal to the effective Indian excise duty rates applicable to similar
       Indian products. A reading of paragraphs I, 3 and 4 would indicate that
       a distinction was made between the "basic customs duty" and "additional
 D     duty" leviable under the Customs Act and Excise Act on import.
       "Additional duty" had reference to excise duty payable on the said
       products when manufactured in India.
              26. The aforesaid clauses oblige us to read the relevant portion of
       the first exemption Notification No. 37/96-COS dated 23'd July, J996. It
 E     is as under:-
                         "Notification No. 37/96-Customs
              Iri exercise of the powers conferred by sub-section (I) of Section
              25 of the Customs Act, 1962 (52of1962), the Central Government,
              being satisfied that it is necessary in the pub Iic interest so to do,
 F            hereby exempts goods specified in column (2) of the Table below
              and falling within the First Schedule to the Customs Tariff Act,
              1975 (51 of 1975), when imported into India from Nepal, from the
              whole of the duty of customs leviable thereon under the First
              Schedule to the Customs TariffAct, 1975, subject to the conditions,
 G            if any, specified in the corresponding entry in column (3) of the
              said Table".
              The table contains description of goods and enumerates certain
       ·conditions. What we are concerned with is the nature of exemption. As
        is noticeable, what was exempted under the notification were the goods
        specified in column 2 in the First Schedule to the Tariff Act from the
 H
M/S COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1027
        OF CUSTOMS, PATNA [DIPAK MISRA, J.]

customs duty leviable thereon under the First Schedule to the Tariff Act.      A
It was also subject to the conditions specified therein.
       27. It is apt to note here that Section 3A of the Tariff Act was
enacted in the year 1998. This was a new provision and had stipulated
that in addition to the customs duty and additional customs duty, special
additional customs duty would be payable on the goods imported into            B
India, having regard to the maximum sales-tax, local tax or other charges
for the time being leviable on the like article on the sale and purchase in
India. The proviso stipulated that until such rates were specified by the
Central Government, special additional duty shall be leviable and collected
@ 8% on the imported product. In terms of said proviso, the Notification
No.18/2000-Customs was issued on I" March, 2000 and the same has
                                                                               c
been quoted above.
      28. It is vivid that the protocol to the Treaty of Trade had made a
distinction between the "basic customs duty" and "additional customs
duty". The basic customs duty was granted exemption. However, in
respect of "additional duty" provisions of paragraph 3 or 4 were               D
applicable. But, it is significant that the said protocol did not deal with
special additional duty. Thus, per se and exfacie it is not possible to
accept the position that "special additional duty" was itself exempted
under the protocol. Paragraph I would not cover the "special additional
duty", which was specific and limited as was clear from the exemption          E
notification dated 23'd July, 1996. It was restricted to the goods specified
in column 2 of the First Schedule from the customs duty leviable under
the First Schedule to the Tariff Act. In fact, special additional duty was
not leviable and enforced when the Treaty of Trade was signed and the
protocol was executed. Under these circumstances, it is not possible to
accept the position that Clause I of the protocol had included and had         F
embraced the "special additional duty", which was introduced in the
form of Section 3A enacted in 1998.
      29. The exemption which was granted by notification dated 291h
September, 2000 was, therefore, in the nature of specific and new
exemption from payment of special additional duty, which was otherwise         G
payable in view of the introduction of Section 3A to the Tariff Act. It is
difficult to appreciate that the exemption granted vide notification dated
29'h September, 2000 to special additional duty was clarificatory or to
give effect to the existing protocol. We think so as protocol appended to
the Treaty could not have conceived of future levy by way of proposition.
                                                                               H
1028            SUPREME COURT REPORTS                          [2016] 5 S.C.R.


 A     In any case, factually it does not. Therefore, the notification of 291h
       September, 2000 conferred a new benefit which was not earlier stipulated
       or the subject matter of protocol.
              30. We would now refer to the decision of the High Court of Patna
       in Kaur Sain Traders v. Union of India-'. The said decision rightly
 B     observes and highlights the distinction between the basic customs duty
       i.e. the import duty, the additional duty equal to the excise duty, and
       special additional duty which has reference to sales-tax, local-tax and
       other charges leviable on the articles of sale and purchase in India. The
       said distinction is clear from Sections 2, 3 and 3A of the Tariff Act.
       Section 12 of the Customs Act, no doubt a charging Section, has to be
 c     read along with the Tariff Act. In fact, the Tariff Act also provides for
       further duties in the form of safeguarding duty under Section SB,
       countervailing duty under Section 9 and anti-dumping duty under Section
       9A. Section 25 of the Customs Act stipulates that the Government may
       exempt certain goods from all duties of customs under Section 12 of the
 D     Customs Act or Sections 3 or 3A of the Tariff Act. It was observed that
       incidence of duty in the two Acts, i.e., the Customs Act and the Tariff
       Act are independent to each other and one duty can be levied without
       the other. Decision in Associated Cement Companies Limited v.
       Commissioner, was distinguished. The ratio and finding in Associated
       Cement Companies Limited (supra) has to be read in the context of
 E
       the issue invoil cd in the said case as drawing, designs of those goods
       were not charg.:able to duty and were designated as free under the
       Tariff Act. In Hyderabad Industries Limited v. Union of India 5 , the
       difference in import under the Customs Act and the Tariff Act was
       noticed with reference to duty of customs chargeable under Section 12
 F     of the Customs Act, the additional duty chargeable under Section 3( I) of
       the Tariff Act and additional levied on raw-materials, components and
        ingredients under Section 3(3) of the Tariff Act. It was elucidated that
       the two Acts are independent statutes and merely because instance of
       tax under Section 3 of the TariffAct arises on import of articles in India,
        it does not mean that the Tariff Act cannot provide for charging of duty
 G     which was/is independent of customs duty leviable under the Customs
       Act. The Patna High Court has appropriately referred and relied on the

       3
         2005 (2) PLJR 744
       '2001 (128) ELT 21 SC
       ' 1999 (108) ELT 321 SC
 H
MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1029
        OF CUSTOMS, PATNA [DIPAK MISRA, J.]

view taken by the Bombay High Court in Apas Private Limited v. Union          A
of India •6


       31. At this stage, we would also deal with the judgments relied by
the respondents and the circular No.112/2003.COS.31/J 2/2003 dated
3 I .03.2003. This circular was issued pursuant to tariff conference of
the Chief Commissioners of Customs and the discussions held.                  B
Divergence of practice on implementation of exemption under Central
Excise Notification No. 6/2002-CE dated 01.03.2002 was noticed.
Pertinently, the exemption was granted to a manufacturer of copper
goods from raw-material, other than the copper-ore or copper
concentrate. The exemption was restricted and applicable upon
verification that the manufacture was from raw-material, other than the
                                                                              c
copper-ore or copper concentrate. The doubt had arisen whether
exemption should be granted when the manufacturer was located in
Nepal. In the said context the Board had accepted the recommendations
of the conference that in.the light of the Indo-Nepal Treaty, verification
could be undertaken by the Indian customs in Nepal and accordingly            D
there was no Tl'" -;on not to extend the benefit in case of imports made
from Nepal und1.:r Notification No.6/2002 dated I" March, 2002.
     32. Decisions in the case of W.P.I.L. Limited v. Commissioner,
Central Excise' and Raison India Limited v. Commissioner of
Central Excise, Cllan<ligarli 8 do not assist the appellant. In the said      E
authorities, the contention of the assessee was accepted on the ground
that both power driven pumps as well as parts of power driven pump
had for long remained exempt. However, when earlier notifications
were rescinded in order to consolidate and reduce the number of
notifications and then the new notification was issued on I st March,
 1994 then by mistake and erroneously parts of power driven pump were         F
not included, whereas manufacture of power driven pumps was included.
In this context, it was held that the subsequent notification including
parts of power driven pump was merely clarificatory and when
clarificatory notifications are issued, they have retrospective effect. The
instant case is not suggestive of any mis take or error or even               G
inadvertence. The plea that there was delay in issue of notification,
exempting special additional duty is not acceptable. It is because, what
6
    1985 (22) ELT 644 Bombay
7 2005 ( 181) ELT 259 SC

"2015 (319) ELT 234 SC                                                        H
1030             SUPREME COURT REPORTS                            [2016] 5 S.C.R.



A      was earlier exempted under the protocol was basic customs duty and
       also additional customs duty equal to the duty of excise in some cases
       and on satisfying the conditions stipulated and it did not deal and relate to
       special additional duty chargeable under Section 3A of the Tariff Act,
       which had introduced a new duty altogether. Therefore, we repel the
       submission that the exemption notification issued on 29th September,
 B
       2000 is clarificatory. It was intended to be applied prospectively. That
       apart, it cannot be also said the issue of notification was a formal
       ministerial act which got delayed for administrative reasons. It was a
       conscious act and a deliberate decision which came into existence after
       due deliberation when it was decided to grant exemption under Section
 c     3A of the Tariff Act.
             33. In view ofour foregoing analysis, we find no merit in the appeals
       preferred by the assessee and accordingly dismiss them without any
       order as to costs.
       Kalpana K. Tripathy                                        Appeals dismissed.
 D