SCA/5500/1995 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 5500 OF 1995 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE D.A.MEHTA AND HONOURABLE MR.JUSTICE H.B.ANTANI ======================================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment? YES 2 To be referred to the Reporter or not? YES 3 Whether Their Lordships wish to see the fair copy of the judgment? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder? NO 5 Whether it is to be circulated to the Civil Judge? NO ======================================================================= GUJARAT STATE FERTILIZERS CO LTD (FIBRE UNIT) AND ANOTHER - PETITIONERS VERSUS UNION OF INDIA AND ANOTHER - RESPONDENTS ====================================================================== APPEARANCE : MR PARESH M DAVE FOR THE PETITIONERS. MR KETAN A DAVE FOR RESPONDENT : 1. SERVED BY RPAD - (N) FOR RESPONDENT : 2. ======================================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA AND HONOURABLE MR.JUSTICE H.B.ANTANI DATE : 20/06/2008 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE D.A.MEHTA) SCA/5500/1995 2/7 JUDGMENT 1. The petitioner is a successor Company of a Company known as Gujarat Nylons Limited, which was amalgamated with the petitioner-Company on 01-04-1994. It is an accepted fact that Gujarat Nylons Limited imported new Extruder Screws for Spinning Lines 1, 2, 3 and 4. The goods were imported against Invoice No. Nil dated 30-08- 1989 (for 2 Nos.), Invoice dated 19-04-1989 (for 1 No.) and 13-03-1989 (for 1 No.). The goods were cleared against three Bills of Entry dated 04-09-1989, 23-04-1989 and 16-03-1989 respectively. It is the case of the petitioner that out of said imported goods, four pieces of Extruder Screws were to be re-exported under shipping bill presented on 18-12- 1989 as the said goods were defective. The goods were presented along with shipping bill before Assistant Collector (Docks) who vide report dated 21-02-1990 permitted re-export and observed that for the purpose of entitlement to drawback, the petitioner will have to present necessary documents as may be required by the Drawback Department at the time of settlement of drawback claim. 2. When the Assistant Collector of Customs, Drawback Department, Bombay took up the claim for drawback, after hearing the representation of the petitioner, recorded finding vide order dated 30-08- 1983 which reads as under: SCA/5500/1995 3/7 JUDGMENT “The goods imported were extruder screws with motor complete as mentioned in their import invoice no. 88- 40111 dated 13.11.87. However, the goods re-exported were extruder screws without motor. The plain reading of the description in the import invoice and export invoice / Shipping Bill shows that both the goods are different because the import invoices states the goods are extruder without motor complete. However, the export invoice and shipping bill state that the goods is Extruder Screws. Therefore, the identity of the goods is not established. This does not fulfill the test of these very goods which is a must to claim drawback under Section 74 of the Customs Act, 1962. This point was asked to the representative of M/s Gujarat Nylons Ltd. specifically as to why both the descriptions are different. Mr. Sinha replied that though the goods exported were extruder without motor only, he did not know why their Commercial Division who prepared the invoice described these goods as extruder screws. For the sake of assumption if these goods are treated as extruder instead of extruder screws, the test of 'these very goods' is still not fulfilled because these extruders are without motor as confirmed by Mr. Sinha. Therefore, the identity of the goods is not established with regard to Section 74 (1) of Customs Act, 1962.” 3. Being aggrieved, the petitioner carried the matter in appeal before the Collector of Customs (Appeals) who vide order issued on 19- 08-1994 came to the conclusion that the imported goods were “Extruder with complete Motors, 4 Nos. (Shipping Section)” whereas what had been exported was “4 Nos. Extruder Screws.” However, the Collector (Appeals) did not record any further finding in relation to this aspect of the matter because, according to the Appellate Authority, the re-export was beyond the period of two years from the date of payment of duty on the imported goods. The Appellate Authority, therefore, confirmed the SCA/5500/1995 4/7 JUDGMENT order-in-original, albeit on a different ground. 4. Mr. P. M. Dave, learned Advocate appearing on behalf of the petitioner, submitted that the respondent-authorities had wrongly read the provisions of the Customs Act, 1962 (“the Act” ). That Section 74 of the Act which relates to drawback allowable on re-export of duty- paid goods did not stipulate that the entire plant and machinery which was imported had to be re-exported before making the claim for drawback. That it was sufficient if out of the entire mass of goods imported, certain identifiable part or parts were re-exported, the only requirement being establishment of identity with the goods imported. That, in the present case, in fact, there was no dispute on this count and as could be seen from the report of the Assistant Collector (Docks), identity was established i.e. identity of the goods which were re- exported with a part of the goods which were imported. That the Assistant Collector (Docks) had tallied the description of the goods re- exported with the description of the goods mentioned in the Bill of Entry and, therefore, there was no further requirement of Section 74 which was being read by the Drawback Authorities for denying the relief to the petitioner. 5. The relevant extract of the provisions as they then stood is SCA/5500/1995 5/7 JUDGMENT reproduced herein for ready reference: “SECTION 74. Drawback allowable on re-export of duty-paid goods.- (1) When any goods capable of being easily identified which have been imported into India upon which any duty has been paid on importation, - (i) xxxxx (ii) xxxxx (iii) xxxxx ninety-eight per cent of such duty shall, except as otherwise hereinafter provided, be re-paid as drawback, if (a) the goods are identified to the satisfaction of the Assistant Collector of Customs as the goods which were imported; and (b) the goods are entered for export within two years from the date of payment of duty on the importation thereof:” 6. On plain reading of the provision, it becomes apparent that the drawback is allowable on re-export of duty-paid goods, provided the conditions stipulated in Section 74 of the Act are shown to be satisfied. The identity of the goods is in relation to any goods which have been imported into India and upon which any duty has been paid on importation. Therefore, the opening portion of sub-section (i) of Section 74 of the Act stipulates that the goods which are re-exported are the goods which are identified as having been imported into India and upon which duty is paid at the time of import. Clause (a) uses the term “the” to specify the goods when the provision says the goods are identified as SCA/5500/1995 6/7 JUDGMENT the goods which were imported. The qualification, therefore, which is prescribed by the use of the term “the”, is in relation to the goods which were imported and have to be identified as the goods which were in fact imported and which are in fact being re-exported. If the contention raised on behalf of the petitioner is accepted, one would have to read the words “goods or any part thereof which have been imported into India”, or it could be “the goods or any component thereof which have been imported into India is entered for export”. The law is well settled. If the language of the statute is capable of a plain meaning without doing violence to the language, it is not open to add any words therein so as to give a meaning which the Court might think might be more appropriate. 7. During the course of hearing, a contention was raised to the effect that such an interpretation would lead to practical difficulties. Suffice it to state that the statute cannot be interpreted so as to resolve one or the other practical difficulties that may arise in implementation thereof, as that would lead to uncertainty and the interpretation would keep on changing with factual matrix. Law of interpretation does not permit adoption of such a course. 8. On facts, as noted hereinbefore, all the three authorities SCA/5500/1995 7/7 JUDGMENT have concurrently come to the conclusion that the goods which are being re-exported are not identified as the goods which have been imported into India. It is not open to this Court to travel beyond such findings of fact considering the scope of petition under Article 226 of the Constitution. On interpretation of the provisions also, the view adopted by the respondent-authorities does not call for any interference. 9. In the aforesaid set of facts and circumstances of the case, in absence of any error in the impugned orders, more particularly the order dated 30-03-1995 bearing No. 148 of 1995 made by the Revisional Authority, the petition fails and is rejected. Rule discharged. There shall be no order as to costs. [D. A. MEHTA, J.] [H. B. ANTANI, J.] /shamnath