vil Appeal Nos
3820 24 of 1988
From the Order dated 261988 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Order No 410 41488 D Appeal Nos
CDSB65986 DC152684 D CDSB152286 DC156584 D and C42286 D VC Mahajan and P Parmeshwaran for the Appellants
V Sridharan AR Madhav Rao and V Balachandran for the Respondents
The Judgment of the Court was delivered by 777 RANGANATHAN J
These are appeals under section 130Eb of the from an order passed by the Customs Excise and Gold Appellate Tribunal dismissing the appeals preferred by the Collector of Customs in the cases of Ms Hunsur Plywood Pvt Ltd and Ms Veneer Mills
The question raised involves the interpretation of Notification Nos 5983 and 12684
These notifications are identically worded in all material respects with notification no265Cus
dated 812
1982 and the question before us is directly governed by our judgment of even date in Civil Appeal Nos
2644 48 of 1987 Collector of Customs vs Western India Plywood Manufac turing Co Ltd 1989 Supp 1 SCR 779
For the reasons set out in detail in the said judgment these appeals have to be allowed and the orders of the Assistant Collector reject ing the claims filed by the respondents have to be upheld
When these matters were taken up Shri V Sridharan appearing on behalf of the assessee respondents drew our attention to section 5 of the 
He con tended that exemptions or concessions in respect of goods imported from certain countries are generally granted in pursuance of agreements entered into with those countries that the expression country of origin has a special mean ing and its determination governed by special provisions and that in view of this the explanation to the notification in question has to be confined in its application only to a comparison of the rates applicable under notifications of concession to goods imported from certain countries of origin
In this case though there are four different notifications one each in respect of Burma Nepal Bangla desh and Bhutan they are all notifications of complete exemption and the rate of auxiliary duty by reference to any one of them will according to the assessee be the smaller rate mentioned in the relevant notification under considera tion
The rate of basic duty in respect of other countries is 60 as there is no notification of exemption or conces sion in relation thereto
The argument is that the last of these should be ignored and the basic auxiliary duty deter mined only by reference to the rates prescribed in the four notifications of exemption
For the reasons set out in the judgment in the case of Western India Plywood Manufacturing Co Ltd we are unable to accept this contention
We are unable to agree with the learned counsel that the interpretation given by us will be inconsistent with the agreement for concessional treatment that may have been entered into between the Government of India and the coun tries from which the goods in question are imported
In the first place there is no material in the case before us to show that the notification under section 25 was issued in 778 pursuance of an agreement under section 5 of the 
That apart if this argument were sound the auxiliary duty in a case where imports from different countries attract different degrees of exemption under different notifications should be determinable separately by reference to the effective basic duty notified in respect of each such country
But admittedly if there are different rates of effective duty notified for goods imported from different countries of origin then notwithstanding the agreement with each of these countries the auxiliary duty under the notification now under consideration will not be determined in respect of the import from each of such countries by reference to the effective basic duty leviable in respect thereof but will be determined with reference to the highest of the effective rates of duty applicable to all the imports
If that be so there is no reason why the position cannot be the same in a case like the present where the imports come from two sets of countries the imports from which attract two different effective basic rates of duty although the difference arises because in respect of one set of counties there is no notification of concession while in relation to the other there is a complete exemption granted under a notification
As we have pointed out there is nothing in the language of the explanation that excludes such a case from its purview
Considering the language of the notification before us as we have explained in the case of Western India Plywood Manufacturing Co Ltd the result of reading the First Schedule along with the relevant notifications is that imports of timber into India from most countries is charged to effective basic customs duty as per the tariff in the Schedule whereas in respect of imports from Burma Nepal Bhutan and Bangladesh the rate of effective basic duty is nil
The position therefore is that the article in ques tion is liable to two or more different rates of effective basic duty based on the country of origin for the import
It therefore follows that the auxiliary duty is to be determined with reference to the higher of the two effective rates of duty
We therefore see no reason to reach a different con clusion in the present case from that arrived at by us in the case of Western India Plywood Manufacturing Co Ltd We therefore allow the appeals and restore the orders of the Assistant Collector rejecting the claims of refund filed by the assesses
The appeals are allowed but there will be no order as to costs
PSS Appeals allowed


Summary:
The proviso to section 72a of the Andhra Pradesh Build ings Lease Rent and Eviction Control Act 1960 prohibits payment of any sum exceeding one month s rent by way of advance clause b thereto makes any such sum refundable or at the option of the tenant otherwise adjustable and sub section
3 declares the stipulation for payment of rent in advance beyond that of one month as null and void
The appellant tenant took the demised premises on a thirty year lease beginning from September 9 1969 and paid a large amount as advance only a part of which was adjust able towards the stipulated rent in the subsequent months and the balance was to be paid back under a valid receipt after the expiry of the lease period
The lease deed did not have a forfeiture clause
The respondent land lord initiated action for eviction in October 1973 on the plea that the tenant had failed to pay rent for a certain subsequent period
The tenant advanced the plea of payment
The land lord placed the account books of the appellant and claimed the benefit of section 34 of the Evidence Act
All the courts below found that the payment as claimed had not been estab lished
In this appeal by special leave it was contended that the balance of advance which lay in the hands of the re spondent landlord was either refundable to the tenant or adjustable against rent under section 7 of the Act and if out of that sum the arrears were available to be adjusted the tenant was not at all in default that the lease of 1969 being for a term of thirty years certain eviction could not be claimed against a contractual tenant during the subsist ence of the lease and that the lease did not have a forfei ture clause so as to bring the matter within the ambit of section 111g of the Transfer of Property Act
726 Allowing the appeal by special leave HELD 1
The stipulation in the lease deed that the amount of advance would be refundable at the end of the tenancy was null and void under section 73 of the Act
The said amount became payable to the tenant immediately
It was thus held by the landlord on account of the tenant on the date of filing of the petition for eviction
The tenant could not therefore be considered a defaulter for a smaller amount by not paying the rent for some months
730D 729BC 730E Mohd Salimuddin vs Misri Lal  Anr  and Ms Sarwan Kumar Onkar Nath vs Subhas Kumar Agarwalla  referred to
The lease being for a term of thirty years was to expire in September 1999
The deed did not stipulate a forfeiture clause
In the absence of such a clause the contractual tenancy was subsisting under the provisions of the Transfer of Property Act
There could not therefore be any eviction from such a tenancy
730F