Delhi High Court
H. J. Leach & Company vs Union Of India And Another on 27 January, 1981
Equivalent citations: 1981(8)ELT182(DEL)
JUDGMENT
S.S. Chadha, J.
1. This petition under Article 226 of the Constitution of India seeks the quashing of the orders passed by the Customs authorities refusing to refund the additional excise duty (countervailing duty) on the lubricating oils imported by the petitioner.
2. The petitioner imported lubricating oils from abroad, the kind of which is neither manufactured nor prepared in India. Countervailing duty as provided in the Indian Tariff Act, 1934 read with Item 11-A of the First Schedule to the Central Excises and Salt Act, 1944 was levied on the imports of lubricating oils from aborad. The petitioner after the import of lubricating oils and payment of additional duty (countervailing duty) claimed refund of the additional excise duty. Those refunds have been refused by the Authorities under the Customs Act in the impugned orders in the writ petition. The impugned order of the Central Government dated January 9, 1969 states that according to Section 2A of the Indian Tariff Act, any commodity figuring in the Excise Tariff, if imported to India, would attract the levy of countervailing duty of customs equally to the excise duty leviable on the said article, if produced in India. The main submission of Shri R. P. Kapur, the learned counsel for the petitioner, is that the purpose of the additional excise duty (countervailing duty) leviable on the imports of lubricating oils from abroad is with a view to encourage the local production and discourage the competition with the local products. The contention is that the subject matter of the levy of import duty relates to the additional import duty leviable on imports which adversely affect the local or indigenous products. According to the counsel, the liability to pay duty of excise is primarily on manufacture, and if the similar goods are not manufactured in India, then the levy of the additional excise duty is not authorised by law.
3. In order to appreciate these contentions, it is necessary to refer to the provisions of the Indian Tariff Act, 1934. The Act provides the law relating to the customs duties. The Act was amended by the Indian Tariff (Amendment) Act, 1963 with a view to provide for automatic levy of countervailing duty on imported articles where excise duty is leviable on similar articles produced indigenously. Section 2A reads as follows :-
“Levy of countervailing duty. – (1) Any article which is imported into India shall be liable to customs duty equal to the excise duty for the time being leviable on a like article if produced or manufactured in India.
Explanation. – In this sub-section the expression “the excise duty for the time being leviable on a like article if produced or manufactured in India” means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India or if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs and where such duty is leviable at different rates, the highest duty.
(2) The customs duty referred to in sub-section (1) shall be in addition to any duty imposed under this Act or under any other law for the time being in force.”
From a plain reading of the provisions of Section 2A it is clear that it levies countervailing duty on imported articles which, if produced in India, would be leviable to excise duty. The explanation makes it abundantly clear. Sub-section (1) of Section 2A is the charging section and levies the countervailing duty on imported articles. The Section says it is leviable on imported articles which if, produced in India, would be leviable to excise duties. The expression “if produced” is explained in the explanation clause which extent by a legal fiction that if like articles are not so produced or manufactured in that case which would be leviable on the class or description of article to which the imported belongs. It is the common case of the parties that the petitioner imported lubricating oils from abroad which kind of oils were not manufactured at the relevant time in India. Item No. 11-A of the First Schedule to the Central Excises and Salt Act, 1944 reads as under :-
“Item No. 11-A (referred to in the Government Notification) reads as follows :-
All products derived from refining of crude petroleum or shale (whether gaseous, liquor, semi-solid, or solid in form, not otherwise specified including refinery, gases, Lubricating Oil and greases, waxes and co*ke.”
The petitioner himself states that lubricating oil has again been explained. It means all types, high as well as low grades and of various viscosities. In respect of such Lubricating Oils, only two qualities thin spindle oils B.O.C. 40 and 50 are refined in India and none else. Even though the Lubricating Oils identical to the one imported by the petitioner are not manufactured in India, the Lubricating Oils of two low qualities thin spindle oils B.O.C. 40 and 50 are manufactured in India. Additional Excise duty is leviable on the class of article to which the imported article belongs. Countervailing duty has been levied on the import of Lubricating Oils in accordance with item 11-A. Reading of the entry Item 11-B reaffirms my view that even blended Lubricating Oils and greases meaning lubricating oils and greases obtained by straight blending or compounding of mineral oils or by blending or compounding of mineral oils with any other ingredients, are also subjected to the excise duty. The lubricating oils imported by the petitioner from abroad are petroleum products. Various types of petroleum products are provided in item Nos. 6 to 11 of the said Schedule. It is the petroleum products not otherwise specified which are mentioned in item 11-A. Lubricating Oils which means all types high as well as low grades and of various viscosities are thus clearly within the fold of the entry at item 11-A.
4. For the above reasons, the writ petition fails and is dismissed with no orders as to costs.
