1. The appeal arises out of the order passed by the Collector of Customs (Appeals), Bombay. Briefly stated the facts of the case are that the appellants imported one Horizontal Continuous Casting Machine Model RC 650 complete with standard accessories from U.K. In order to avail the concession under the Project Import Heading 98.01 of the Customs Tariff they applied for the registration of the contract in terms of the Project Imports Regulations, 1986. They filed a Bill of Entry claiming the assessment of the goods under Heading 98.01. The appellants claimed total exemption from the payment of auxiliary duty on the imported goods under Notification No. 139/90 dated 20.3.1990 in which against Serial No. 34 'Casting Machine' was specifically mentioned. The Assistant Collector held that the imported Casting Machine and accessories having been assessed to basic duty of Customs under Heading 98.01 were not eligible to exemption from the levy of auxiliary duty since in terms of Serial No. 34 of Notification No.139/90 dated 20.3.1990 only casting machines covered by Chapter 84 were exempt from the levy of auxiliary duty of Customs. The Assistant Collector decided that the imported Horizontal Casting Machine was chargeable to auxiliary duty at 45% in terms of entry at Serial No. 3 in Notification No. 138/90-Cus dated 20.3.1990 which read "All other goods". Being aggrieved by the order passed by the Assistant Collector the appellants filed an appeal before the Collector of Customs (Appeals) who confirmed the order passed by the Assistant Collector on the grounds that the appellants having opted to clear the goods under Project Import Heading 98.01 were not entitled to the benefit under Notification No. 139/90 in which against Serial No. 3 only Casting Machines falling under Chapter 84 had been mentioned.
2. On behalf of the appellants, we heard the learned advocate Shri N.Kantawala. He stated that the imported Horizontal Continuous Casting Machine under heading was assessed to basic duty of customs at 30% in terms of Notification No. 132/85 dated 19.4.1985. He referred to Tribunal's decision in the case of Mitra Prakashan Pvt. Ltd. v.Collector of Customs that Notification No. 132/85 does not derogate in any way from the application of any other notification which may prescribe a lower rate of basic duty on the goods and the notification does not come in the way of applicability of any notification exempting the goods from auxiliary duty. He contended that on merits the imported machine was classifiable under Chapter 84 and Notification No. 139/90 is specific in respect of Casting Machines and there is nothing in the notification which would have the effect of debarring Horizontal Continuous Casting Machines from the benefit of exemption from auxiliary duty of customs on the ground that it is classifiable under Heading 98.01 for the purpose of levy of basic customs duty under the First Schedule. He argued that levy of auxiliary duty on the machine in question in terms of notification No. 138/90-Cus dated 20.3.1990 was not permissible since neither the item of 'Casting Machine' not 'Goods covered by Heading 98.01' were specifically covered by it and the proviso to the notification makes it abundantly clear that the notification would not affect the exemption from auxiliary duty available to the goods under any other notification. In support of his contentions he also placed reliance on the Tribunal's decisions in the cases of Chowgle (sic) Matrix Hobs Ltd., Bombay v. Collector of Customs Bombay and Collector of Customs, Madras v. Bharat Heavy Electricals Ltd., Madras . In support of (i) Indo Swiss (sic)-Engineering Pvt. Ltd. v. U.O.I. 1989 (41) ELT 7217 (Bom) : 1989 (22) ECR 292 (Bombay)Coromandle Newsprint & Chemicals v. Collector 3. On behalf of the Revenue the learned SDR Shri S.K. Roy contended that even though Horizontal Continuous Casting machine imported by the appellants was specifically mentioned in notification No. 139/85 the appellants were not eligible to the benefit in terms of the notification since the imported machine was classifiable under Heading 98.01 due to the appellants having exercised the option to avail the Project Import benefit by registering the contract in terms of the Project Imports Regulations, 1986. He contended that the case was fully covered against the appellants by the Madras High Court decision in the case of Appraiser Madras Customs v. Tamil Nadu Newsprint Papers Ltd. wherein it was held that Project Import Heading 84.66 was not a general entry and when an exemption notification specifically refers to Heading 84.31 and description of certain goods falling under that Heading it was not open to the importer to claim that the notification would apply to all goods of that description whether they fall under that Heading or not.
4. Replying to the points raised on behalf of the Revenue the learned Advocate Shri Kantawala contended that the ratio of the Madras High Court decision in the case of Appraiser Madras Customs v. Tamil Nadu Newsprint Ltd. was not applicable to the appellants' case. He stated that Honble Madras High Court had rightly held that the goods falling under Heading No. 84.66 being specifically mentioned in the notification No. 61/83 auxiliary duty on goods assessed under heading No. 84.66 was determinable under this notification and not in terms of Notification No. 62/83. He added that in the appellants' case the goods were classifiable under heading 98.01 which was not specifically mentioned in the notification No. 138/90.
5. We have examined the records of the case and considered the submissions made on behalf of both sides. It is seen that the question that arises for examination in this case is whether the Horizontal Continuous Casting Machine when imported in accordance with the Project Imports Regulations, 1986 and assessed to basic duty of customs under the First Schedule to the Customs Tariff Act, 1975 under Heading 98.01 would be eligible to the exemption from the payment of auxiliary duty of customs in terms of notification No. 139.90, which against serial No. 34 lists casting machines falling under Chapter 84Mitra Prakashan Pvt. Ltd. v. Collector of Customs (supra) the Tribunal had considered the question whether a colour scanner assessed to basic duty of customs under the Project Import Heading 98.01 was eligible to the exemption from the whole of auxiliary duty of Customs in terms of notification No. 311/86 dated 13.5.1986 in which Colour Scanners falling under Chapter 90 were specifically mentioned against serial No. 46. The Tribunal arrived at the finding that classification of Colour Scanner under Heading 98.01 for the purpose of basic duty of Customs would not have the effect of debarring it from the benefit of exemption from auxiliary duty of customs under notification No. 311/86 dated 13.5.1986. Paragraphs 17,18,20 and 21 of the said decision are reproduced below: 17. I have carefully considered the submissions before me. I propose to consider the issue on first principles. As is clear from Heading 98.01 read with chapter Note No. 1 to 98, the scheme of the tariff envisages that goods which may be covered by a more specific heading elsewhere in the Schedule would also be classifiable under Heading 98.01 provided the conditions stipulated therein are satisfied. The First Schedule to the Customs Tariff Act, 1975 is for the purpose of determination of the classification and the rate of duty of customs applicable to imported goods in terms of Section 2 of the Act. This duty is commonly known as basic customs duty. There are several other duties of customs one of them being auxiliary duty of customs, the authority for which flows from the Annual Finance Acts, The Finance Act of 1986 being relevant in the present instance.
Notification No. 132/85, dated 19.4.1985 exempts goods falling under Heading 98.01 of the aforesaid Schedule, when imported into India for industrial plants or project other than power projects including gas turbine power projects and fertilisers projects, from so much of that portion of the duty of customs leviable thereon which is specified in the said Schedule, as is in excess of the amount calculated @ 30% ad valorem. It is, thus, clear that the exemption is from a portion of the duty leviable under the First Schedule i.e., basic customs duty. This notification, on the face of it, has nothing to do whatsoever with regard to the levy and assessment of auxiliary duty of customs, the authority for which, as we have seen, flows not from the First Schedule to the Customs Tariff Act but from the Annual Finance Acts, This view gains support from para 2 of the notification which reads as follows: Nothing contained in this notification shall affect the exemption granted under any other notification of the Government of India for the time being in force from the duty of Customs specified in the said First Schedule in respect of the goods referred to in this notification.
That is to say, Notification No. 132/85 will not in any way affect the exemption from basic customs duty conferred on an article by any other notification for the time being in force. Thus, Notification.
No. 132/85 does not derogate in any way from the application of another notification which may prescribe a rate of basic customs duty on an article lower than 30% ad valorem. When such is the case it is difficult to imagine how this notification would come in the way of the applicability of Notification No. 311/86, dated 13.5.1986 which has nothing to do with basic customs duty.
18. Notification No. 311/86 exempts inter alia colour scanner falling within Chapter 90 of the First Schedule to the Customs Tariff Act, when imported into India, from the whole of the auxiliary duty of the Customs thereon under Sub-section 1 of Section 19 of Finance Act, 1986. There is no dispute that colour scanner, on its merits, falls within Chapter 90 of the Schedule. The notification is specific in respect of colour scanners. There is nothing in the notification which has the effect of debarring colour scanner imported under the Project Imports Regulations, from the benefit of exemption from auxiliary duty of Customs on the ground that it is classified under Heading No. 98.01 of the First Schedule for the purpose of levy of basic customs duty under the said First Schedule read with any notification for the time being in force. To my mind, it is obvious that the fact that the classification of the imported colour scanner has been fixed as Heading 98.01 for the purpose of basic customs duty does not have the effect of debarring it from the benefit of exemption from auxiliary duty of customs in terms of Notification No. 311/86.
20. It seems unnecessary to refer to any other case law. However, I shall briefly touch upon them. In Collector of Customs, Madras v. Bharat Heavy Electricals Ltd. that there is no bar to availment of more than one benefit unless it is barred categorically. The dispute in that case was regarding the simultaneous availment of the benefit of lower rate of duty applicable to goods imported under Project Imports Regulations and a notification fixing a lower rate of duty for certain goods. This decision was followed in Mis. Chowgule Matrix Hobs Ltd. v. Collector of Customs . In that case also it was held that the Collector was in error in considering that the imports having been effected with reference to Project Imports Regulations as covered by Heading No. 84.66, which gave concession to the importers, the appellants were not further entitled to the benefit of another concessional notification, since there was no expressed or implied restriction in the said notification. The Supreme Court judgment in Auto Tractors Ltd. v. Collector of Customs (Appeals) is not, in my opinion,; directly relevant to the present dispute because no question of simultaneous availment of the benefit of two notifications was in issue therein. In the Tribunal's decision in Coromandile Prints and Chemicals Ltd. v. Collector of Central Excise exemption under one notification would not itself disentitle a manufacturer from availment of exemption under another notification should the same be applicable to the goods in question if there was nothing in the notification expressly debarring such simultaneous availment. In the Bombay High Court's judgment in Indoswe Engineers Pvt. Ltd. v. Union of India , it was held that unless a notification contains a specific condition that the benefit thereunder is barred if a benefit is taken under another provision or notification, the assessee could be entitled to both the benefits. In coming to this conclusion the decision of the Supreme Court in the case of Mis. Hemraj Govardhandas v. Assistant Collector of Customs, Surat and Ors. 1978 (2) ELT (J-350) was also considered.
21. Thus, whether the issue is considered from first principles or in the light of judicial pronouncements and decisions of this Tribunal, there is no doubt in the present case that the colour scanner imported was entitled to the benefit of full exemption from auxiliary duty of customs in terms of Notification No. 311/86, dated 13.5.1986, though it was assessed to basic customs duty under Projects Imports under Heading 98.01 of the Customs Tariff Schedule.
In this view of the matter, I agree with the order recorded by Shri K. Prakash Anand, Member (Technical).
7. In our view the issue arising in the case before us is fully covered by the Tribunal's decision quoted above. It has, therefore, to be held that assessment of the imported Horizontal Continuous Casting Machine Model RC 650 to basic duty of Customs under 98.01 of the First Schedule to the Customs Tariff Act, would not have the effect of debarring it from the exemption from the payment of the whole of the auxiliary duty of Customs in terms of notification No. 139/90 even when against Serial No. 34 in the table annexed to the notification against "Casting Machines" figuring in column 3 the corresponding chapter of the First Schedule to the Customs Tariff Act, 1975 mentioned in column 2 of the said table is 84. In support of his contention that the imported machine having been assessed to basic duty of customs under heading 98.01 would not be eligible for exemption under Notification No. 139/90 which lists specifically 'Casting Machines' falling under Chapter 84, the learned SDR S.K. Roy had placed reliance on the decision of die Madras High Court in the case of Appraiser Madras Customs v. Tamil Nadu Newsprint Ltd. (supra). In our view, the facts in the case before us being different the decision of the Hon'ble Madras High Court cited on behalf of the Revenue is not relevant.. In this regard we find that the Hon'ble High Court had rightly held that goods falling under Heading 84.66 being specifically mentioned in Notification No. 61/83 auxiliary duty on goods assessed under Heading 84.66 was determinable under this notification and not in terms of notification No. 62/83. However, in the appellants' case the goods were assessed to basic duty of customs under heading 98.01 (successor to Heading 84.66) which has not been specifically mentioned in any notification granting exemption from the payment of auxiliary duty.
8. In view of the above discussion and on the ratio of the Tribunal's decision in the case of Mitra Prakashan Pvt. Ltd. v. Collector of Customs (supra) the appeal is allowed with consequential relief to the appellants.