Full Judgment
2. The Ld. JDR mentions that this (is) a case of a dispute regarding effective rate of duty on Cloves imported from specified areas in terms of Notification No. 431/76-Cus., dated 1-11-1976 as amended.
3. The table annexed to this notification contains an entry 13 "cloves" showing the rate of duty "Rs. 22/-(sic) per kg. less 771/2%.
4. The dispute was regarding interpretation of this expression regarding rate of duty.
5. A view has been taken that 7 /2% means 7 1/2 ad valorem and that is the view of the appellants.
6. It is the Department's view that 7 1/2% does not mean 71/2% ad volorem but 7 1/2% of the amount arrived at the rate of Rs. 20/- per kg., that is, the effective rate of duty is Rs. 18.50 per kg.
7. The Tribunal had occasion to examine this issue in the case of Cart Land Exporter, Madras reported in 1986 (23) E.L.T. 435. The Tribunal had taken the view that 71/2% means 71/2% ad valorem and had in this connection, relied on the explanatory notes to the Schedule.
8. It was their request that this view may be reconsidered ab initio since it is conceivable that in some situations 7 1/2% ad valorem may work out to be more than the amount arrived at the rate of Rs. 20/- per kg. and therefore it could not be the intention of the notifying authority to use the phrase "less 71/2%" to mean "less 71/2% ad valorem".
9. The Bench also observed that the word ad valorem has been used against all other entries in the notification except this one while prescribing the percentage.
10. The Bench also observed that the explanatory note explains the use of the sign of "percentage" in the Tariff Schedule whereas this table is a part of the notification and not directly of the Tariff Schedule.
11. The Ld. JDR stated that he would also like to emphasise these points.
12. I find that the Ld. DR's submissions have strong force. In our opinion, 71/2% does not mean 71/2% "ad valorem'' as the phrase "ad valorem" has not been indicated against the entry No. 13 for cloves.
13. As observed by one of us during hearing, the phrase "ad valorem" has been used against all other entries in the notification except this one while prescribing the percentage. It is, therefore, not open to us to read what is not there or add the phrase "ad valorem".
14. In the Tribunals order in the case of Cart Land Exporters, Madras (supra) the Tribunal has relied upon one of the explanatory notes to the Schedule. This note, however, explains the use of sign of the "percentage" in the tariff schedule whereas the entry required to be interpreted by us is an entry in the table forming part of notification (and not the schedule). Therefore, in my opinion, the explanatory note was not applicable in the instant case.
15. In view of the above position, I am unable to accept the respondents' contentions.
16. Further I find that the Ld. Asstt. Collector is correct in holding that the duty in this case is essentially specific, on weight basis and not ad valorem. Moreover specific duties are very much a part of the system and are leviable in accordance with the Law. Hence, I find it difficult to appreciate the Learned Collector (Appeals)'s observation that such a provision or interpretation thereof would be contrary to the scheme of the Act.
17. Accordingly, I set aside the order of Collector (Appeals) and confirm the order of the Assistant Collector.
Jyoti Balasundaram, Member (J) for herself and for S.L. Peeran, Member (J) 19. I have gone through the order recorded by learned Technical Member and express by inability to accept the same.
20. The very same issue has been decided by the Tribunal in the case of Collector of Customs v. Cart Land Exporters and the Tribunal, in a detailed order,, has taken the view that the expression "71/2%", referred to in Notification No. 431/76-Cus., dated 1-11-1976 against serial number 13 relating to cloves, means 7l/2% ad valorem. The Tribunal has come to the conclusion after referring to the origin of margin of 7 1/2% in the erstwhile Imperial Preferences and relying on the National List of Concessions of India annexed to the Bangkok Agreement and the General Explanatory Notes to the Schedule to the Customs Tariff Act.
21. I see no reason to differ from the earlier decision of the Tribunal. In fact, this order of the Tribunal has been relied upon in Order No. 384 to 386/89-D dated 29-9-1989 in the case of CC, Madras v.Dhirish Enterprises to which one of us, [Member (Judicial) Shri S.L.
Peeran] was also a party.
22. In the circumstances, following the decision of the tribunal reported in 1986 (23) E.L.T. 435,1 find no merit in the present appeal which is hereby dismissed.