ivil Appeal No 4494 of 1989
From the Judgment and Order dated 31588 of the Central Administrative Tribunal Allahabad in OA No 4271986
B Dutta ASG
NP CV Subba Rao A Subba Rao and P Parmeshwaran for the Appellants
Harbans Lal and AK Mahajan for the Respondents
The Judgment of the Court was delivered by DUTT J
Special leave is granted
Heard learned counsel for both parties
The respondents were holding the posts of Junior Scien tific Officers Group B  posts in the Defence Research  Development Service
They were promoted to the posts of Scientists B  with effect from October 16 1985 or from the date they would actually assume charge of the posts
The respondents filed an application before the Central Adminis trative Tribunal Allahabad claiming that they should have been promoted to the posts of Scientists B  with effect from July 1 1984
The Tribunal rejected the prayer of the respondents that their promotions should have been made with effect from July 1 1984
The Tribunal however directed that their promotions should be with effect from the date on which the promotional posts were created
753 The short question involved in this appeal is whether the Tribunal was justified in directing that the respondents  promotion should be with effect from the date the promotion al posts were created
Under rule 81a of the Defence Research  Development Service Rules 1970 hereinafter referred to as the Rules  all those who have been recruited before the promulgation of the Rules as Junior Scientific Officers in the Defence Research  Development Organisation on regular basis and possess the educational qualifications and experience as laid down for direct recruits shall be eligible till they are wasted out for promotion to the post of Scientist B  up to 50 per cent of the vacancies in the grade
Under the first proviso to rule 81a the total number of posts filled in that grade shall at no time exceed 50 per cent of the total sanctioned strength for the grade on the date of promulgation of the Rules and that this concession shall also be admissible to those persons who are appointed or promoted as Junior Scientific Officers on regular basis on or after the promulgation of the Rules
There were a total number of 512 posts available in the grade of Scientists B  in 19791n view of rule 81a of the Rules the Junior Scientific Officers were entitled to be promoted to the 50 per cent of these posts that is to say to 256 posts
These 256 posts were filled up by promo tion of the Junior Scientific Officers between the period 1979 and 1983
According to the respondents the posts of Scientists B  to which they have been promoted with effect from October 16 1985 were created between 1984 and 1985 and that accordingly the respondents should have been promoted to these posts with effect from 1st July 1984
It was the contention of the respondents that on previous occasions up to the year 1983 promotions were given effect from 1st July of the year in which the promotions were granted
It has been already noticed that the Tribunal has overruled the said contention of the respondents and has directed that their promotions should be with effect from the date the said promotional posts of Scientists B  were created
At the same time it has been found by the Tribunal that the flexible complementing scheme or SITU promotions as provided in rule 82f of the Rules were not available to the Junior Scientific Officers
It is not disputed that the promotions of the Junior Scientific Officers to the posts of Scientists B  are vacancy based and such promo tions are granted after the assessment by the Assessment Board as provided in the Rules
It has also been observed by the Tribunal that normally the promotions will take effect from the date of the order granting such promotions
The only ground on which the Tri 754 bunal has directed that the promotions of the respondents should take effect from the date the posts of Scientists B  were created is that up to 1983 such promotions were given effect from 1st July of the year in which the promotions were granted
There is no statutory provision that the promotion to the post of Scientist B  should take effect from 1st July of the year in which the promotion is granted
It may be that rightly or wrongly for some reason or other the promotions were granted from 1st July but we do not find any justifying reason for the direction given by the Tribu nal that the promotions of the respondents to the posts of Scientists B  should be with effect from the date of the creation of these promotional posts
We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post
After a post falls vacant for any reason whatsoever a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant
In the same way when additional posts are created promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted
If on the contrary promotions are directed to become effective from the date of the creation of addi tional posts then it would have the effect of giving promo tions even before the Assessment Board has met and assessed the suitability of the candidates for promotion
In the circumstances it is difficult to sustain the judgment of the Tribunal
For the reasons aforesaid we set aside the judgment of the Tribunal directing that the promotions of the respond ents should be not from the date of the orders of promotion but from the date the posts were created
The orders of the appellants promoting the respondents with effect from Octo ber 16 1985 will stand
The appeal is allowed
There will however be no order as to costs
N PV
Appeal allowed


Summary:
Import of timber is charged to effective basic customs duty at 60 per cent under the 
The Government of India had however issued notification under section 25 of the absolutely exempting timber imported from Burma
But the importers are liable to pay auxiliary duty in terms of Notification No 265 dated Decem ber 8 1982 and its successor Notification Nos
59 of 1983 and 126 of 1984 which prescribed two rates with reference to the rate of duty of customs
The explanation thereto provides that where there are two effective basic rates applicable in respect of any article and the differentiation in rates is attributable to the country of origin of the goods imported then the auxiliary duty payable will be the higher of the two rates
The respondents had imported certain consignments of timber from Burma which were assessed to auxiliary duty at the higher rate as per notification
The Appellate Tribunal held in favour of the assessee respondents
In these appeals by the Revenue under section 130Eb of the  it was contended for the respondents that exemptions Or concessions in respect of goods imported from certain countries were generally granted in pursuance of trade agreements entered into with those countries under section 5 of the Tariff Act that the expression country of origin in the notification had a special meaning and its determina tion governed by special provisions and that therefore the explanation to the notification in question had to be confined in its application only to a comparison of the rates applicable under notification of concession and basic auxiliary duty determined accordingly
Allowing the appeals 776 HELD The auxiliary duty in a case where imports from different countries attract different degrees of exemption under different notifications in pursuance of agreements under section 5 of the should be determinable separately by reference to the effective basic duty notified in respect of each such country
But 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 such a notification 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
778A C in the instant case there is no material to show that the notification was issued in pursuance of an agreement
It is a case where the imports come from two sets of countries the imports from which attract two different effective basic rates of duty
The differentiation arises because in respect of one set of countries there is no notification of conces sion while in relation to the other there is a complete exemption granted under a notification
There is nothing in the language of the explanation that excludes such a case from its purview
The auxiliary duty is therefore to be determined with reference to the higher of the two effective rates of duty
777H 778C D F Collector of Customs vs Western India Plywood Manufac turing Co Ltd 1989 Supp 1 SCR 779 applied