vil Appeal Nos.
3820 24 of 1988.
From the Order dated 2.6.1988 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Order No. 410 414/88 D, Appeal Nos.
CD/SB./659/86 D;C/1526/84 D, CD/SB/1522/86 D;C/1565/84 D and C/422/86 D. V.C. Mahajan, and P. Parmeshwaran for the Appellants.
V. Sridharan, A.R. Madhav Rao and V. Balachandran for the Respondents.
The Judgment of the Court was delivered by 777 RANGANATHAN, J.
These are appeals under section 130E(b) 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 M/s. Hunsur Plywood Pvt. Ltd. and M/s. Veneer Mills.
The question raised involves the interpretation of Notification Nos. 59/83 and 126/84.
These notifications are identically worded in all material respects with notification no.265/Cus.
dated 8.12.
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 S.C.R. 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.
P.S.S. Appeals 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 130E(b) 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.