Civil Appeals Nos
157388 395487 and 3370 of 1988
From the Judgment and Order dated 121988 1061987 and 2841988 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal No C137385 C Order No 8788 C 170483 D Order No 46387 D and Appeal No C 605 1986C in Order No 42988 C respectively
AK Ganguli P Parmeshwaran TVSN Chari and Mrs Sushma Suri for the Appellant
section Ganesh KJ John and San jay Grover for the Respondent
The Judgment of the Court was delivered by RANGANATHAN J
These three appeals under Section 130 Eb of the raise the same issue
They are therefore disposed of by a common order
The respondent Ms
K Mohan  Co imported from Japan metallised poIyester films under an import licence dated 1461978
The goods were admittedly in the shape of film rolls several metres long
They were cleared on payment of customs duty leviable under the CA as well as the additional duty of customs or countervailing duty leviable under section 3 of the Customs Tariff Act 1976 CTA
Subsequently the respondent firm made three applica tions for the refund of the amount of the additional duty of customs paid by it
The claim for refund was based on the terms of a notification of exemption issued under section 251 of the CA
Under notification No 22876 dated 281976 an exemption from the customs duty payable under section 3 of the CTA was granted in respect of articles made of plastics all sorts but excluding those specified in the table an nexed hereto and falling within Chapter 39 of the First Schedule to the 51 of 1975
The annexed table 234 excepted the following items from the purview of the exemp tion Tubes rods sheets foils sticks other rectangular or profile shapes whether laminated or not and whether rigid or flexible including tubings and polyvinyl chloride sheets
Notification No 443 dated 291176 omitted the words of notification No 228 which have been underlined above but left the main notification otherwise untouched
The assesses  claim for refund was accepted by the Tribunal
The Tribunal held that the goods imported by the respondent were articles made of plastics
But they were films  and not one of the categories of articles enumerated in the table
In reaching its conclusion the Tribunal followed the decisions of the Madras High Court in Precise Impex P Ltd vs Collector  of the Calcut ta High Court in Continental Marketing P Ltd vs Union and of the Bombay High Court in AV Jain vs Union WP 2136 of 1986 decided on 301 1987
The Tribu nal also referred to its own earlier decisions in Export India Corpn
P Ltd vs Collector and Collector vs 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 appli cations for refund by the assessee in respect of different periods
There is no dispute before us that the goods in question are articles made of plastics
This being so the assessee is 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 contends that the goods are sheets or foils or other rectangular or profile shapes and hence liable to duty
On the other hand the assesses  case is that they are films a specie of plastic 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 not 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 from sheetings which mean sheets of immense lengths
Also being in the form of rolls they cannot be said to be articles of rectangular shape merely because when cut into segments they may fall into rectangular pieces
235 After giving the matter our careful consideration we are of 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 conclu sion 1 Duty under the CTA in respect of artificial resins plastic materials of various types and articles thereof is leviable under section 3 read with Chapter 39 containing heading nos
390106 and 390107 in section VII of the First Schedule to the CTA
This aspect found a reference in the original notification No 228 but was omitted apparently as being redundant by the amendment of 29111976
In Note 3 at the commencement of the said Chapter 39 clause c talks of 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
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 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 flexi ble including lay flat tubings and polyvinyl chloride sheets not otherwise specified and Explanation I appended to item 15A clari fies For the purpose of sub section 2 plas tics means the various artificial or synthet ic resins or plastic materials or 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 expression plastic having the very wide meaning given to it in Explanation 236 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 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 lay flat tubings not containing any textile material
This item it will be seen does not stick to the classifi cation made earlier in sub item 2
However it does make a distinction between sheeting sheets and films
3 There are a number of exemption notifications issued under rule 81 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 295
1971 exempts articles made of plastics all sorts falling under sub item 2 of Item No 15A except i rigid plastic boards sheeting sheets and films whether laminat ed or not and ii flexible polyvinyl chloride sheeting sheets films and lay flat tubings not containing any tex tile material
Notification No69 of 1971 dated 2951971 read with notification No 7417 and 10773 exempts articles made of polyurethane foam except inter alia sheets and sheetings
Notification No 70 of 1971 of the same date restricts the duty on rigid polyvinyl chloride boards sheeting sheets and films
Notification No 71 of 1971 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 manu factured from polyvinyl chloride
Notification No72 of 1971 of the same date limits the excise duty in respect of flexi ble 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 13
1973 exempts rigid and flexible polyvinyl chloride films of thickness below 025 mm as well as polyvinyl chloride lay flat tubings in certain circumstances
By notifi 237 cation No 151 of 1975 dated 3151975 exemption was granted in respect of cellulose tri acetate when intended for use in the manufacture of cine films X ray films or photograph ic films
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 distinct and independent category of plastic article known to commerce
4 There is a like distinction maintained even by the notifications issued under section 25 of the in regard to items falling within chapter 39 of the First Schedule to CETA
Notification No 227 dated 281976 limits the rate of duty on various items two of which are film scrap and cellulose nitrate sheets and cellulose nitrate films
We then have notification No 223 of the same date which falls for interpretation now and which omits a refer ence to films while enumerating various other categories of plastic articles
Notification No 229 also of 2nd August 1976 restricted the customs duty on metallised or plain plastic films imported for certain specified purposes to 60
Notification Nos 230 dated 2nd August 1976 and 36 of 13
1978 also granted limited exemption to other types of polyster films
We must however point out that these last two notifications are somewhat ambiguous for our present purposes as they also specifically provide for an exemption to the said articles from the additional 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 films 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 contained in 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 025 mm
A report of the Chief Chemist of the Customs Department as well as 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 11000th of an inch thick 0254 mm
In the present case the film rolls were of thickness varying between 0025 mm to 0501 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 238 it exceeded 025 mm in thickness it will be a sheet 
It is urged that since sheets  and foils  are specifically mentioned in the entry in question the imported goods at least to the extent indicated above cannot qualify for exemption
The answer given by the Bombay High Court to the conten tion 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 expres sions set out in the table are applicable not merely to the articles with which we are at present concerned but also to various other types of articles of plastics with varied commercial use
The question is whether the trade under stands 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 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 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
In the light of the above material and the absence of any additional material led in the present case we agree 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 the article presently 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 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 025 mm cannot be described as sheets 
Shri Ganesh for the assessee contended and we 239 think rightly that a film roll of indefinite length and not in the form of individual cut pieces can be more appropri ately described as sheetings  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 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 0025 mm and 0501 mm it is seen from another of the orders that the goods are 3000 metres in length 0501 mm in width and 0025 mm in thick ness
If the latter is the correct version and all the goods are only 0025 mm in thickness the question now posed will not at all arise
However 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 025 mm in thickness they would be sheetings  rather than sheets  and would therefore not fall within the meaning of the expression sheets in the 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 therefore they are outside the table as already pointed out
For the same reasons as we have mentioned in the context 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 expression other rectangular or profile shapes because if the film is cut into small pieces each piece will be rectangular 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 possible to treat them as of other profile  shapes
We are 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 what ever as is contended for
If we give the expression rec tangular or other profile shapes  in the table such wide and unrestricted interpretation as is suggested then practical ly 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 240 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 dis missed


Summary:
A detention order under sub section 2 read with sub section 3 of Section 3 of the was passed against the detenu on the ground that the detenu who was in jail in a case registered under Section 307 IPC was trying for release on bail and there was every possi bility of his being released and that he was likely to indulge in activities prejudicial to public order and public life
The order was confirmed by the State Government on the report of the Advisory Board
In a Writ Petition filed in this Court it was contended that as the grounds of detention did not disclose any past history of any crime by the detenu nor was there any mate rial on record to show that the incident referred to in the grounds would be repeated in future the detention order based on a solitary incident and on an apprehension that the detenu was likely to act prejudicially to the interest of public order in the event of his being released on bail was illegal
Dismissing the writ Petition the Court HELD When an incident was such that it created communal tension and the authorities were apprehensive of the break ing of a communal riot such incident in itself may be sufficient and may afford justification for the satisfac tion of the detaining authority for the detention of the detenu in order to prevent him from indulging in such activ ity prejudicial to public order even though there is no antecedent act of similar nature or past history of commis sion of crime by the detenu
246C D In the instant case the situation that emerged as a result of the incident was grave and serious and prejudi cially affected public order
242 It may be a solitary incident but it gave rise to communal tension and there was apprehension of a communal riot
The police report on the incident is a sufficient material for the subjective satisfaction of the detaining authority that there was disturbance of tranquility and harmony of public life
The detaining authority had taken into consideration all the circumstances including the grave and serious situa tion that emerged as a result of the incident
There were cogent reasons apparent on the face of the record for justi fying the order of detention
245H 246A B Alijan Mian vs District Magistrate Dhanbad  and Ayya vs State of UP and another   relied on
Ramesh Yadav vs District Magistrate Etah and Smt
Shashi Aggarwal vs State of UP and others   referred to