[2016] 5 S.C.R. 1013 M/S COLGATE PALMOLIVE (INDIA) LTD. A v. COMMISSIONER OF CUSTOMS, PATNA (Civil Appeal No. 8593 of2003) AUGUST 24, 2016 B [DIPAK MISRA AND PRAFULLA C. PANT, JJ.) Customs Act, 1962 - s.25 - Issuance of Notification No. 371 1996-Customs dated 23. 7.1996, pursuant'to Treaty of Trade between. India and Nepal - Exempting specified goods, from customs duty .C leviable under First Schedule to the Customs Tariff Act, 1975 when imported from Nepal to Iridia - Appellant was entitled to .the exemption under the Notification on the imported goods from Nepal

- Iniroduction of s. 3A in Tariff Act levying 'Special Additional D'Uty' in the year 1998 - Notification No. 1812002-Customs dated 1.3.2000 prescribed the rates of 'Spectal Additional Duty' - Demand of D 'Special Additional Duty'from the appellant - Paid under protesr-Thereafter, Notification No: 12412000-Custonis" dated 29.9.2000 · amending Notification dated 23. ?.1996 -Application by appellant seeking refund of 'Special Additional Duty', on the ground that Notificatio.n dated 29.9.2000 had enlarged the scope of exemption, E under Notification dated 23. 7.1996, from 'basic customs duty' by including 'Special Additional Duty'; and that levy of 'Sp.ecial Additional Duty' uls. 3A since was contrary to the terms of t~e Treaty, Notification dated 29.9.2000 rectified the same and therefore the Notification dated 29.9.2000 was clarificatory in nature and had retrospective affect - Application waJ rejected - Appeal thereagainst F dismissed - On appeal, held:- 'Special Additional Duty,' was introduced in the year 1998 by insertion of s.3A of TariffAct -Such duty was not leviable and enforced when the Treaty of Trade was signed or protocol thereto was executed - The protocol could . not have conceived of future levy by way of proposition - The G exemption granted by Notification dated 29.9.2000 was in the nature : of specific and new exemption from payment of. 'Special Additional · Duty: and not clarificatory to give effect to the existing protocol -The Notification was intended to be applied prospectively -Therefore, appellant not entitled to refimd of 'Special Additional Duty' - Customs Tariff Act, 1975 - s.3A. · H 1013

1014 SUPREME COURT REPORTS [2016] 5 S.C.R. A Dismissing the appeals, the Court HELD: 1. The protocol to the Treaty of Trade had made a distinction between the "basic customs duty" and "additional customs duty". The basic customs duty was granted exemption. However, in respect of "additional duty" provisions of paragraph B 3 or 4 were applicable. But, the said protocol did not deal with special additional duty. Thus, per se and ex/acie it is not possible to accept the position that "special additional duty" was itself exempted under the protocol. Paragraph 1 of the protocol would not cover the "special additional duty", which was specific and limited as was clear from the exemption notification dated 23'd c July, 1996. It was restricted to the goods specified in column 2 of the First Schedule from the customs duty Ieviable under the First Schedule to the Tariff Act. In fact, special additional duty was not leviable and enforced when the Treaty of Trade was signed and the protocol was executed. It cannot be said that Clause 1 of D the protocol had included and had embraced the "special additional duty", which was introduced in the form of Section 3A enacted in 1998. [Para 28] [1027-D-F]

2. The exemption which was granted by notification dated ' 29th September, 2000 was, therefore, in the nature of specific and E new' "exemption from payment of specia't additional duty, which was otherwise payable in view of the introduction of Section 3A to the Tariff Act. It cannot be said that the exemption granted vide notification dat.ed 29th September, 2000 to special additional duty. was clarificatory or to give effect to the existing protocol. The protocol appended to the Treaty could not have conceived F of future levy by way of proposition. In any case, factually it does not. Therefore, the notification of 29th September, 2000 conferred a new benefit which was not earlier stipulated or the subject matter of protocol. (Para 29] [1027-G-H; 1028-A] Hyderabad Industries Limited v. Union of India 1999 G (108) ELT 321 SC - relied on. Associated Cement Companies Limited v. Commissioner 2001 (128) ELT 21 SC; W.P.I.L. Limited v. Commissioner, Central Excise 2005 (181) ELT 259 SC; Raison India Limited v. Commissioner of Central Excise, Chandigarh H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1015 OF CUSTOMS, PATNA 2015 (319) ELT 234 ·sc - distinguished. A Kaur Sain Traders v. Union of India 2005 (2) PLJR 744; Apas Private Limited v. Union of India 1985 (22) ELT 644 Bombay - approved. UOI v. Yokasawa Blue Smart 2001 (129) ELT 598 B (KAR); Nestle India Ltd. v. State of Punjab 1999 (13) PHT 132 (P&H) - referred to. Case Law Reference

2001 (129) ELT 598 (KAR) referred to Para 17 1999 (13) PHT 132 (P&H) referred to Para 17 c 2005 (2) PLJR 744 approved Para 30 2001 (128) ELT 21 SC distinguished Para 30 1999 (108) ELT 321 SC relied on Para 30 D 1985 (22) ELT 644 Bombay approved Para 30 2005 (181) ELT 259 SC distinguished Para 32 2015 (319) ELT 234 SC distinguished Para32 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8593 of WOO. ··~ E From the Judgment and Order dated I 7.06.2003 of the Customs, Excise and Service Tax Appellate Tribunal, E.Z.B., Kolkata, in Appeal No. C/216/02 WITH F C. A. NO. 8309 OF 2916. S. Ganesh, Sr. Adv., Ajay Aggarwal, Ms. Mallika Joshi, Ms. Ruchika, Rajan Narain, Prateek Rusia, Gaurav Agrawal, Advs. for the Appellant. A.K. Panda, Sr. Adv., Ms. Nisha Bagchi, Arijit Prasad, Ms. G Ruksana Chowdhary, Ms. Pooja Sh,arma, B. Krishna Pras\ld, Advs. for the Respondent. The Judgment of the Court was delivered by H SUPREME COURT REPORTS . [2016]'5 S.C.R. A DIPAK MISRA, .J. I. Leave granted in SLP. (Civil) No. 11487 of2006.~ ~ ·.. 2. Keeping in view.the ne~d to fortify the traditional connection and strei:igthen the e<?onbmic coqperation for the purpose of development and mutual benefit, th~ .Governtpent of Indii1; had .signed the Treaty of B Trade witl~ His Majesty's Government of Nepal.in July, 1996. Articles III, IV and V of the said Treaty read as.fpllows;-" Article III

Both the contracting parties shall accord unconditionally to each other treatment no less favourable than that accorded to any third c country with respect to (a) customs duties and charges of any kind imposed on or in connection with importation and exportation . and (b) import regulation.s includi~g qu;mtitative restrictions. 'Article IV The contracting parties agree, on a.reciprocal basis,. to exemptD from basic customs duty as well as from quantitative restrictions the import of such primary products as m~y be mutually agreed upon, from each other. . ' · · ,· Article V E ·Notwithstanding the provisions of Atticle III and subject to such exceptions as may be made after consultation with His Majesty's Government of Nepal, the govemmentoflndia agree to promote the industrial development ofNepal through the grant on the basis of non-reciprocity of specially favourable treatment to imports into India of industrial products manufactured in Nepal in respect F of customs duty and quantitative restrictions normally applicable to them". 3. The protocol to the Treaty with reference to Article V stipulated many clauses. With reference to Article V cla~ses which are relevant are reproduced below:~ · · G "J.. The Government of India will provide access to the Iitdran market free of customs duties and the quantitative restrictions for ·all articles manufactured in Nepal.. xxxx xxxx xxxx MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1017 OF CUSTOMS, PATNA [DIPAK MISRA, J.]

3 .' On the basis of a Certificate issued, for each consignment of A · produ~ts m~nufactured in the small scale units in Nepal, by His Majesty's Government of Nepal, or by an agency designated by His Majesty's government of Nepal that the relevant conditions applicable to the products manufactured jn similar small scale industrial units in India for relief in the levy ofapplicable Excise B Duty rates are fulfilled for such a parity, Government oflndia will extend parity in the levy of Additional duty on such Nepalese products equal to the treatment provided in :the levy of effective Excise Duty on similar Indian products under the Indian customs and Central Excise Tariff. c 4. The "Additional Duty" rates equal to the effective Ihdian Excise duty rates applicable to similar Indian Products under the Indian Customs & Central Excise Tariff will continue to be levied on the imports into India of products manuf11ctured.i11the medium af?.d large scale units in Nepal.

D 4(i) In regard to "additional duty".collected by the Government of India in respect of manufactured articles other than those manufactured in "small" units: Wherever it is established that the cost of production of an articles is higher in Nepal than the cost of production in a corresponding unit iri fodia, a sum representing such difference in the cost of productiori, but not exceeding 25 E percent of the "additional duty" collected by the Government of ·India, will be paid of His Majesty's Government ofNepal provided. Hi!\ Majesty's Government ofNepal have given assistance to the . same .e]\tent to the (manufacturers) exporters". . 4. ·Pursuant to the aforesaid Treaty, the Government ofindia issued F a Notification No. 37of1996 dated 23.7.1996, in exerCise of powers under Section 25 of the Customs Act, 19.62 (for short; "the Customs Act") whereby specified goods in the notification when imported into. India from Nepal were exempted "from the whole'; of the cus.toms duty leviable under the First Schedule to the CustOms Tiµ-iff Act, 1975 (for brevity, "the Tariff Act'') subject to the conditions, jf any, specified in the G corresponding entry in column (3) of the Table to the.notification. There is rio dispute that the appeilant who was importing various dentai hygiene products from Nepal was entitled to avail exemption under the notification. As the factual matrix would unveil, it was availing the exemption from the customs duty under the notification. H

1018 SUPREME COURT REPORTS [2016] 5 S.C.R. A 5. In the year 1998, Section 3A was introduced in the Tariff Act. To appreciate the scheme of the Tariff Act, it is desirable to refer to Section 2 of the Tariff Act, which reads as follows:-"Section 2 : Duties specified in the Schedules to be levied. The "rates at which duties of customs shall be levied under the B Customs Act, 1962 (52 of 1962), are specified in the First and Second Schedules." Schedule I to the Tariff Act incorporates the duties on the imports and Schedule II on the exports. 6. Section 3 of the Tariff Act specifies about the levy of additional c duty equal to excise duty. It is as follows:-"Section 3: Levy of additional duty equal to excise duty. -

(l) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the Additional duty) equal to the excise duty for the time being leviable on a like D article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated atthat percentage of the value of the imported article. Provided that in case of any alcoholic liquor for human E consumption imported into India, the Central Government may, by notification in the Official Gazette, specify the rate of additional duty having regard to the excise duty for the time being leviable on a like alcoholic liquor produced or manufactured in different States, or, if a like alcoholic liquor is not produced or manufactured in any State, then, having regard to the excise duty which would F be leviable for the time being in different States on the class or description of alcoholic liquor to which such imported alcoholic liquor belongs." 7. Section 3A which has been introduced in 1998 provides for impo.sition of special additional duty. The relevant portion of the said G Section reads as follows:-

"3A. Special additional duty. -( 1) Any article which is imported into India shall in addition be liable to a duty (hereinafter referred to in this section as the special additional duty), which shall be levied at a rate to be specified by the Central Government, by H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1019 OF CUSTOMS, PATNA [DIPAK MISRA, J.] notification in the Official Gazette, having regard to the maximum A sales tax, local tax or any other charges for the time being leviable on a like article on its sale or purchase in India: Provided that until such rate is specified by the Central Government, the special additional duty shall be levied and collected at the rate of eight percent of the value of the article imported into B India." 8. After the said provision came into force, Notification No. 18/ 2000-Customs was issued on 1''March, 2000. By the said notification the Central Government prescribed the rates of special duty. Relevant part of the notification is reproduced below:- C "Notification No.18/2000-Customs

In exercise of the powers conferred by sub-section ( 1) of section 3A of the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act), the Central Government, having regard to the maximum sales tax, local tax or any other D charges for the time being leviable in the like goods on their sale of purchase in India, hereby specifies the rates of special additional duty as indicated in column (4) of the Table below in respect of goods, when imported into India, specified in.corresponding entry in column (3) of the said Table and falling within the Chapter, E Heading No. or Sub-Heading No. of the First Schedule to the Customs Tariff Act as are specified in the corresponding entry in column (2) of the said table: Provided that in respect of the goods specified against S. Nos. 24, 25, 26, 31 and 32 of the said Table, "Nil" rate shall be stibject10~ F the conditions, if any, subject to which the goods are exempt either partially or wholly from the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act." 9. After the rates were prescribed, the appellant was asked to pay Special Additional Duty (SAD) and it paid under protest. Thereafter, GNotification No. 124/2000-Customs was issued on 29 .09 .2000 amending the Notification No. 37/96-Customs dated 23'd July, 1996. For proper appreciation of the controversy, it is appropriate to reproduce the contents of the said notification:-

"Notification No. 124/2000-Customs H 1020 SUPREME COURT REPORTS [2016] 5 S.C.R. A In exercise of powers conferred sub-section (4) of Section 3A of the Customs Tariff Act, 1975 (51 of 1975) read with sub-section (1) of section 25 of the Customs Act, 1962 (52 of! 962), the Central Government being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendment in the notification of the Government oflndia in the Ministry of Finance B (Department of Revenue), No. 37/96-Customs, dated the 23'd July, 1996, namely:- In the said notification, for the words and figures "from the whole of duty of customs leviable thereon under the First Schedule to c the Customs Tariff Act, 1975", the words, figure and letter "from the whole of the duty of customs Jeviable thereon under the First Schedule to the said Customs Tariff Act, and special additional duty leviable under section 3A of the said Customs Tariff Act" shall be substituted." I 0. After the said notification was issued, the appellant filed an D applicatfoi10ri 15.01.2001 for refund of Special Additional Duty (SAD) paid in respect of the imports made from Nepal during the period 01.03.2000 to 29.09.2000. The authority concerned rejected the said application preferred by the appellant. Eventually, the matter came up in appeal being Appeal No.C-216/02 before the Customs, Excise & Gold E (Control) Appellate Tribunal, Kolkata (for short, ''tribunal").

11. The stand of the appellant before the tribunal was that Notification No: 124/2000which amended the earlier Notification No. 3 7/96 and enlarged the scope of exemption from basic customs duty by including SAD, should be considered as retrospective in view of the language employed in the Treaty entered into between the two countries. F It was urged that all goods manufactured in Nepal and imported into India would be exempted from customs duty and equal to the excise duty for .the time being leviable on similar products manufactured in · India and ~ per the said Treaty, no SAD was leviable and hence, the notification-dated 29.09.2000 was clarificatory in nature. It was further G contended that levy of SAD after the rates were fixed was contrary to the terms of the Treaty and, therefore, it was rectified by issuing the Notification No. 124/2000 and, therefore, the appellant was entitled to refund of the amount which was paid towards SAD. It was further argued that on the basis of the representations made by the appellant and others seeking clarification on the leviability of SAD Notification H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1021 OF CUSTOMS, PATNA [DIPAK MISRA, J.] No. 124/2000 was issued and hence, it was retrospective in nature. A

12. On behalf of the revenue, resisting the stand put forth by the assessee, it was submitt(ld that prior to 29.09.2000 SAD was correctly levied in respect of the imports and there is no justification in treating the notification in question as retrospective, more so, when the _notification has clearly stated about scope of its applicability. B 13. The Member (Judicial) analysing the terms of the Treaty and the need for issuance of notification opined that:- · " ... If the terms of the Treaty by themselves were to be treated as law, then there was no need for the Government of India to even issue. the notification exempting imports from the Basic c Customs Duty. As rightly observed by the original adjudicating authority that undoubtedly, the Treaty provides the framework for the bilateral trade between the two countries; but the actual import and export is governed l:iy the Customs and Central Excise Statutes and the provisions of the Treaty do not, ipso facto, translate into D import and export procedures within India until a corresp,onding notification in Customs is issued to bring the same into effect. We are of the view that it may be lapse on the part of the.

Government of India not to issue the notification exempting the imports from SAD prior to 29.09.2000, but that lacuna cannot be. filled by the judiciary and .it is not our job to discuss as to what E notifications the-Cfoveniment should have issued or not to further the cause of the Treaty between the two·countries." 14. After stating so, the learned Member (Judicial) explaining the stand pertaining to clarificatory aspect of the notification observed that the exemption notification could not be considered to be having F retrospective effect and any exemption provision which enlarges the scope of earlier notification cannot be considered to be clarificatory. The learned Member (Judicial) further opined that earlier notification did not even remotely suggest that exemption from basic customs duty also included the exemption from SAD. That apart, it was held by the G · learned Member (Judicial) that the earlier notification exempted from basic custom duty and the latter from the SAD. Being of this view, the learned Member (Judicial) dismissed the appeal. t 15. The Member (Technical) expressed his dissent and opined that once a Treaty had been entered by the Central Government, the. H 1022 SUPREME COURT REPORTS [2016] 5 S.C.R.

A issue of notification under the provisions of the Customs Act, 1962 is a ministerial act. According to the learned Member (Technical), the notification dated 29.09.2000 was a belated response to effectuate the terms of the Treaty. Elaborating further, the learned Member (Technical) observed that if it was a simplicitor amendment to exempt or reduce the rates on certain specified imports, then an amendment would have been B required to be made to the Notification No. 18/2000-CUS dated 01.03.2000 and not to Notification No. 37/96 and that having been not done, it can be safely concluded that there was a belated reference and the real intention was to give retrospectivity to the notification. 16. It is apt to reproduce the observations made by the learned c Member (Technical):-" ... A Treaty entered into with a Sovereign State cannot be reneged, merely for want of an act of ministerial lapse or delay, the Treaties have to be given effect to. When such lapses are cured, subsequently by amendments, such amendment notifications D have to be retrospective in operation .... " 17. To come to such a conclusion, he placed reliance on UOI v. Yokasawa Blue Smart1 and Nestle India Ltd. v. State of Punjab=.

18. After so stating, the learned Member (Technical) opined that the matter should be referred to a larger Bench for a decision whether E amendment in such cases could be read retrospectively or not. As there was difference of opinion, the matter was placed before the third Member who was a Member (Technical). He referred to the point of difference which is to the following effect:- "Whether the appeal is required to be rejected as held by Member F (Judicial) or the matter needs to be referred to the Larger Bench as held by Member (Technical)." 19. The third Member referred to the views of the Member (Judicial) and Member (Technical) in extenso; noted the submissions advanced by the learned counsel for the parties; scanned the various G clauses of the Treaty; analysed the language employed in the notification dated 29.09.2000; distinguished the authorities relied upon by the Member (Technical); declined to accept the submission pertaining to doctrine of I 2001 (129) ELT 598 (KAR) ' 1999 (13) PHT 132 (P&H) H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1023 OF CUSTOMS, PATNA [DIPAK MISRA, J.]

promissory estoppel that was canvassed before him and eventually, came A to hold that both the notifications are independent and both would be applicable from the date they had been issued and they do not remotely suggest any retrospectivity. He further opined that there was no ambiguity in the earlier notification or in the subsequent Notification No.124/2000 and both the notifications operate in special fields - one granted Bexl:mption from basic customs duty and the other SAD of customs. Being of this view, he agreed with the Member (Judicial) and ultimately, the appeal stood dismissed. 20. We have heard Shri S. Ganesh, learned senior counsel for the appellant in Civil Appeal No. 8593 of2003 and Shri A.K. Panda, learned csenior counsel appearing for the respondents. 21. To appreciate the controversy in proper perspective, it is appropriate to understand the nature of the Treaty, the protocol appended thereto, the benefits extended thereunder, the impact of the two notifications and the nature of duty that was exempted. D

22. Article 3 states that the contracting parties shall accord unconditionally to each other treatment not less favourable than what was accorded to a third country in respect of the customs duties and other charges relating to import and export including quantitative restrictions. Article 4 relates to reciprocal arrangement between the two contracting parties to exempt basic customs duty and quantitative E restrictions on import as would be mutually agreed. Having referred to Articles 3 and 4, it is necessary to focus on Article 5. The said Article begins with non-obstante expression and would apply notwithstanding to Article 3. It is non-reciprocal. This Article states that the Government of India had agreed to promote industrial development of Nepal and F further agreed to grant special favourable treatment to imports into India of industrial products manufactured in Nepal in respect of customs duty and quantitative restrictions normally applicable to them. The words used in Article 5 are "customs duties". The non-reciprocal grant would be subject to exceptions as may be made after consultation with the Government ofNepal. As is evident, the Treaty was to be operative for G a period of five years from 51h December, 200 I. 23. We have already reproduced certain paragraphs from the Protocol. To have the correct perspective it is required to be quoted in entirety. It reads as follows:- H 1024 SUPREME COURT REPORTS [2016] 5 S.C.R.

A "I. The Government of India will provide access to the Indian market free of customs duties and the quantitative restrictions for all articles manufactured in Nepal. 2. (i) Import of articles in accordance with the para "I" above shall be allowed by the Indian customs authorities on the basis of B a certificate of Origin to be issued by the agency designated by His Majesty's Government of Nepal in the format prescribed at Annexure 'B' for each consignment of articles exported from Nepal to India. However, this facility shall not be available for the articles listed at Annexure 'C'. c (ii) In the event of the above facility leading to a surge in the import generally or in the import of any particular article, the two Governments shall enter into consultation with a view to taking appropriate measure. (iii) In the case of other articles made in Nepal which do not fulfill D the conditions required by the Certificate of Origin prescribed at Annexure 'B' including those Articles listed at Annexure 'C' for the purpose of Preferential treatment into India, the Government oflndia will provide normal access to the Indian market consistent with its MFN treatment.

E 3. On the basis of a Certificate issued, for each consignment of products manufactured in the small scale units in Nepal, by His Majesty's Government of Nepal, or by an agency designated by His Majesty's Government of Nepal that the relevant conditions applicable to the products manufactured in similar small scale industrial units in India for relief in the levy of applicable Excise F Duty rates are fulfilled for such a parity, Government oflndia will extend parity in the levy of Additional duty on such Nepalese products equal to the treatment provided in the levy of effective Excise Duty on similar Indian products under the Indian customs and Central Excise Tariff. G 4. The "Additional Duty" rates equal to the effective Indian Excise duty rates applicable to similar Indian Products under the Indian Customs & Central Excise Tariff will continue to be levied on the imports into India of product manufactured in the medium and large scale units in Nepal. H M/S COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1025 OF CUSTOMS, PATNA [DIPAK MISRA, J.]

4(i) In regard to "additional duty" collected by the Government of A India in respect of manufactured articles other tl:ian those manufactured in "small" units: Wherever it is established that the cost of production ofan articles is higher in Nepal than the cost of production in a corresponding unit in India, a sum representing such difference in the cost of production, but not exceeding 25 B percent of the "additional duty" collected by the Government of India, will be paid of His Majesty's Government ofNepal provided. His Majesty's Government ofNepal have given assistance to the same extent to the (manufacturers) exporters. 5. Export of consignments from Nepal accompanied by the c Certificate of Origin will normally not be subjected to any detention/ delays at the Indian Customs border, border check posts and other places enroute. In case any need for clarification arises, this will be obtained expeditiously, by the Indian b'order customs authorities from the Indian and Nepalese authorities, as the case may be. D 6. Where for social and economic reasons, the import of an item into India is permitted only through public sector agencies or where the import of an item is prohibited under the Indian Trade control regulations, the Government oflndia will consider any request of His Majesty's Government ofNepal for relaxation and will permit the import of such an item from Nepal in such a manner as may E be found to be suitable.

7. '?or the purpose of calculation ofimportduties customs valuation procedures, as prescribed under the prevailing custom law, will be followed." 24. No doubt paragraph I states that the Government of India F would provide access to Indian market free from customs duties and quantitative restrictions of all articles manufactured in Nepal, but this would be subject to other paragraphs, for paragraph 2 would indicate that the access to Indian market free from customs duty was subject to conditionalities and also restrictions. Paragraph 2 stipulates, the G requirement of certificate of origin which shou Id be as per the proforma prescribed by Annexure Band would not be applicable to Articles listed in Annexure-C for which normal access consistent with most favourable · nations' Treaty would be provided. Clause 3 deals with products manufactured by small-scale units in Nepal for which certificate would H 1026 SUPREME COURT REPORTS [2016] 5 S.C.R.

A be issued by the Government of Nepal or agency designated by them. For the said imported products, "reliefs" in the levy of excise duty applicable to products manufactured by similar small-scale industrial units in India, while fulfilled by the Nepalese small scale manufacture would apply. This clause, as we notice, gave parity and equal treatment to goods/products manufactured by small scale industrial units in Nepal as B was applicable to small-scale industrial units in India, who had been granted relief in relation to applicable to Indian customs and Central Excise Tariff. 25. It is pertinent to note here that the relief agreed related to duty c chargeable under the head of "additional duty". Clause 4 dealt with "additional duty applicable" on products manufactured by medium or large-scale units in Nepal in which case they were liable to pay additional duty equal to the effective Indian excise duty rates applicable to similar Indian products. A reading of paragraphs I, 3 and 4 would indicate that a distinction was made between the "basic customs duty" and "additional D duty" leviable under the Customs Act and Excise Act on import. "Additional duty" had reference to excise duty payable on the said products when manufactured in India. 26. The aforesaid clauses oblige us to read the relevant portion of the first exemption Notification No. 37/96-COS dated 23'd July, J 996. It E is as under:- "Notification No. 37/96-Customs

Iri exercise of the powers conferred by sub-section (I) of Section 25 of the Customs Act, 1962 (52of1962), the Central Government, being satisfied that it is necessary in the pub Iic interest so to do, F hereby exempts goods specified in column (2) of the Table below and falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India from Nepal, from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975, subject to the conditions, if any, specified in the corresponding entry in column (3) of the G said Table". The table contains description of goods and enumerates certain ·conditions. What we are concerned with is the nature of exemption. As is noticeable, what was exempted under the notification were the goods specified in column 2 in the First Schedule to the Tariff Act from the H M/S COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1027 OF CUSTOMS, PATNA [DIPAK MISRA, J.] customs duty leviable thereon under the First Schedule to the Tariff Act. A It was also subject to the conditions specified therein.

27. It is apt to note here that Section 3A of the Tariff Act was enacted in the year 1998. This was a new provision and had stipulated that in addition to the customs duty and additional customs duty, special additional customs duty would be payable on the goods imported into B India, having regard to the maximum sales-tax, local tax or other charges for the time being leviable on the like article on the sale and purchase in India. The proviso stipulated that until such rates were specified by the Central Government, special additional duty shall be leviable and collected @ 8% on the imported product. In terms of said proviso, the Notification cNo.18/2000-Customs was issued on I" March, 2000 and the same has been quoted above.

28. It is vivid that the protocol to the Treaty of Trade had made a distinction between the "basic customs duty" and "additional customs duty". The basic customs duty was granted exemption. However, in Drespect of "additional duty" provisions of paragraph 3 or 4 were applicable. But, it is significant that the said protocol did not deal with special additional duty. Thus, per se and exfacie it is not possible to accept the position that "special additional duty" was itself exempted under the protocol. Paragraph I would not cover the "special additional duty", which was specific and limited as was clear from the exemption E notification dated 23'd July, 1996. It was restricted to the goods specified in column 2 of the First Schedule from the customs duty leviable under the First Schedule to the Tariff Act. In fact, special additional duty was not leviable and enforced when the Treaty of Trade was signed and the protocol was executed. Under these circumstances, it is not possible to Faccept the position that Clause I of the protocol had included and had embraced the "special additional duty", which was introduced in the form of Section 3A enacted in 1998.

29. The exemption which was granted by notification dated 291h September, 2000 was, therefore, in the nature of specific and new exemption from payment of special additional duty, which was otherwise G payable in view of the introduction of Section 3A to the Tariff Act. It is difficult to appreciate that the exemption granted vide notification dated 29'h September, 2000 to special additional duty was clarificatory or to give effect to the existing protocol. We think so as protocol appended to the Treaty could not have conceived of future levy by way of proposition. H 1028 SUPREME COURT REPORTS [2016] 5 S.C.R. A In any case, factually it does not. Therefore, the notification of 291h September, 2000 conferred a new benefit which was not earlier stipulated or the subject matter of protocol.

30. We would now refer to the decision of the High Court of Patna in Kaur Sain Traders v. Union of India-'. The said decision rightly B observes and highlights the distinction between the basic customs duty i.e. the import duty, the additional duty equal to the excise duty, and special additional duty which has reference to sales-tax, local-tax and other charges leviable on the articles of sale and purchase in India. The said distinction is clear from Sections 2, 3 and 3A of the Tariff Act. c Section 12 of the Customs Act, no doubt a charging Section, has to be read along with the Tariff Act. In fact, the Tariff Act also provides for further duties in the form of safeguarding duty under Section SB, countervailing duty under Section 9 and anti-dumping duty under Section 9A. Section 25 of the Customs Act stipulates that the Government may exempt certain goods from all duties of customs under Section 12 of the D Customs Act or Sections 3 or 3A of the Tariff Act. It was observed that incidence of duty in the two Acts, i.e., the Customs Act and the Tariff Act are independent to each other and one duty can be levied without the other. Decision in Associated Cement Companies Limited v. Commissioner, was distinguished. The ratio and finding in Associated Cement Companies Limited (supra) has to be read in the context of E the issue invoil cd in the said case as drawing, designs of those goods were not charg.:able to duty and were designated as free under the Tariff Act. In Hyderabad Industries Limited v. Union of India5, the difference in import under the Customs Act and the Tariff Act was noticed with reference to duty of customs chargeable under Section 12 F of the Customs Act, the additional duty chargeable under Section 3( I) of the Tariff Act and additional levied on raw-materials, components and ingredients under Section 3(3) of the Tariff Act. It was elucidated that the two Acts are independent statutes and merely because instance of tax under Section 3 of the Tariff Act arises on import of articles in India, it does not mean that the Tariff Act cannot provide for charging of duty G which was/is independent of customs duty leviable under the Customs Act. The Patna High Court has appropriately referred and relied on the

3 2005 (2) PLJR 744 '2001 (128) ELT 21 SC ' 1999 (108) ELT 321 SC H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1029 OF CUSTOMS, PATNA [DIPAK MISRA, J.] view taken by the Bombay High Court in Apas Private Limited v. Union A of India6• 31. At this stage, we would also deal with the judgments relied by the respondents and the circular No.112/2003.COS.31/J 2/2003 dated 3 I .03.2003. This circular was issued pursuant to tariff conference of the Chief Commissioners of Customs and the discussions held. B Divergence of practice on implementation of exemption under Central Excise Notification No. 6/2002-CE dated 01.03.2002 was noticed. Pertinently, the exemption was granted to a manufacturer of copper goods from raw-material, other than the copper-ore or copper concentrate. The exemption was restricted and applicable upon cverification that the manufacture was from raw-material, other than the copper-ore or copper concentrate. The doubt had arisen whether exemption should be granted when the manufacturer was located in Nepal. In the said context the Board had accepted the recommendations of the conference that in.the light of the Indo-Nepal Treaty, verification could be undertaken by the Indian customs in Nepal and accordingly D there was no Tl'" -;on not to extend the benefit in case of imports made from Nepal und1.:r Notification No.6/2002 dated I" March, 2002.

32. Decisions in the case of W.P.I.L. Limited v. Commissioner, Central Excise' and Raison India Limited v. Commissioner of Central Excise, Cllan<ligarli8 do not assist the appellant. In the said E authorities, the contention of the assessee was accepted on the ground that both power driven pumps as well as parts of power driven pump had for long remained exempt. However, when earlier notifications were rescinded in order to consolidate and reduce the number of notifications and then the new notification was issued on I st March, F 1994 then by mistake and erroneously parts of power driven pump were not included, whereas manufacture of power driven pumps was included. In this context, it was held that the subsequent notification including parts of power driven pump was merely clarificatory and when clarificatory notifications are issued, they have retrospective effect. The instant case is not suggestive of any mis take or error or even G inadvertence. The plea that there was delay in issue of notification, exempting special additional duty is not acceptable. It is because, what 6 1985 (22) ELT 644 Bombay 7 2005 ( 181) ELT 259 SC "2015 (319) ELT 234 SC H 1030 SUPREME COURT REPORTS [2016] 5 S.C.R.

A was earlier exempted under the protocol was basic customs duty and also additional customs duty equal to the duty of excise in some cases and on satisfying the conditions stipulated and it did not deal and relate to special additional duty chargeable under Section 3A of the Tariff Act, which had introduced a new duty altogether. Therefore, we repel the submission that the exemption notification issued on 29th September, B 2000 is clarificatory. It was intended to be applied prospectively. That apart, it cannot be also said the issue of notification was a formal ministerial act which got delayed for administrative reasons. It was a conscious act and a deliberate decision which came into existence after due deliberation when it was decided to grant exemption under Section c 3A of the Tariff Act. 33. In view ofour foregoing analysis, we find no merit in the appeals preferred by the assessee and accordingly dismiss them without any order as to costs. Kalpana K. Tripathy Appeals dismissed. D

[2016] 5 S.C.R. 1013 M/S COLGATE PALMOLIVE (INDIA) LTD. A v. COMMISSIONER OF CUSTOMS, PATNA (Civil Appeal No. 8593 of2003) AUGUST 24, 2016 B [DIPAK MISRA AND PRAFULLA C. PANT, JJ.) Customs Act, 1962 - s.25 - Issuance of Notification No. 371 1996-Customs dated 23. 7.1996, pursuant'to Treaty of Trade between. India and Nepal - Exempting specified goods, from customs duty .C leviable under First Schedule to the Customs Tariff Act, 1975 when imported from Nepal to Iridia - Appellant was entitled to .the exemption under the Notification on the imported goods from Nepal

- Iniroduction of s. 3A in Tariff Act levying 'Special Additional D'Uty' in the year 1998 - Notification No. 1812002-Customs dated 1.3.2000 prescribed the rates of 'Spectal Additional Duty' - Demand of D 'Special Additional Duty'from the appellant - Paid under protesr-Thereafter, Notification No: 12412000-Custonis" dated 29.9.2000 · amending Notification dated 23. ?.1996 -Application by appellant seeking refund of 'Special Additional Duty', on the ground that Notificatio.n dated 29.9.2000 had enlarged the scope of exemption, E under Notification dated 23. 7.1996, from 'basic customs duty' by including 'Special Additional Duty'; and that levy of 'Sp.ecial Additional Duty' uls. 3A since was contrary to the terms of t~e Treaty, Notification dated 29.9.2000 rectified the same and therefore the Notification dated 29.9.2000 was clarificatory in nature and had retrospective affect - Application waJ rejected - Appeal thereagainst F dismissed - On appeal, held:- 'Special Additional Duty,' was introduced in the year 1998 by insertion of s.3A of TariffAct -Such duty was not leviable and enforced when the Treaty of Trade was signed or protocol thereto was executed - The protocol could . not have conceived of future levy by way of proposition - The G exemption granted by Notification dated 29.9.2000 was in the nature : of specific and new exemption from payment of. 'Special Additional · Duty: and not clarificatory to give effect to the existing protocol -The Notification was intended to be applied prospectively -Therefore, appellant not entitled to refimd of 'Special Additional Duty' - Customs Tariff Act, 1975 - s.3A. · H 1013

1014 SUPREME COURT REPORTS [2016] 5 S.C.R. A Dismissing the appeals, the Court HELD: 1. The protocol to the Treaty of Trade had made a distinction between the "basic customs duty" and "additional customs duty". The basic customs duty was granted exemption. However, in respect of "additional duty" provisions of paragraph B 3 or 4 were applicable. But, the said protocol did not deal with special additional duty. Thus, per se and ex/acie it is not possible to accept the position that "special additional duty" was itself exempted under the protocol. Paragraph 1 of the protocol would not cover the "special additional duty", which was specific and limited as was clear from the exemption notification dated 23'd c July, 1996. It was restricted to the goods specified in column 2 of the First Schedule from the customs duty Ieviable under the First Schedule to the Tariff Act. In fact, special additional duty was not leviable and enforced when the Treaty of Trade was signed and the protocol was executed. It cannot be said that Clause 1 of D the protocol had included and had embraced the "special additional duty", which was introduced in the form of Section 3A enacted in 1998. [Para 28] [1027-D-F]

2. The exemption which was granted by notification dated ' 29th September, 2000 was, therefore, in the nature of specific and E new' "exemption from payment of specia't additional duty, which was otherwise payable in view of the introduction of Section 3A to the Tariff Act. It cannot be said that the exemption granted vide notification dat.ed 29th September, 2000 to special additional duty. was clarificatory or to give effect to the existing protocol. The protocol appended to the Treaty could not have conceived F of future levy by way of proposition. In any case, factually it does not. Therefore, the notification of 29th September, 2000 conferred a new benefit which was not earlier stipulated or the subject matter of protocol. (Para 29] [1027-G-H; 1028-A] Hyderabad Industries Limited v. Union of India 1999 G (108) ELT 321 SC - relied on. Associated Cement Companies Limited v. Commissioner 2001 (128) ELT 21 SC; W.P.I.L. Limited v. Commissioner, Central Excise 2005 (181) ELT 259 SC; Raison India Limited v. Commissioner of Central Excise, Chandigarh H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1015 OF CUSTOMS, PATNA 2015 (319) ELT 234 ·sc - distinguished. A Kaur Sain Traders v. Union of India 2005 (2) PLJR 744; Apas Private Limited v. Union of India 1985 (22) ELT 644 Bombay - approved. UOI v. Yokasawa Blue Smart 2001 (129) ELT 598 B (KAR); Nestle India Ltd. v. State of Punjab 1999 (13) PHT 132 (P&H) - referred to. Case Law Reference

2001 (129) ELT 598 (KAR) referred to Para 17 1999 (13) PHT 132 (P&H) referred to Para 17 c 2005 (2) PLJR 744 approved Para 30 2001 (128) ELT 21 SC distinguished Para 30 1999 (108) ELT 321 SC relied on Para 30 D 1985 (22) ELT 644 Bombay approved Para 30 2005 (181) ELT 259 SC distinguished Para 32 2015 (319) ELT 234 SC distinguished Para32 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8593 of WOO. ··~ E From the Judgment and Order dated I 7.06.2003 of the Customs, Excise and Service Tax Appellate Tribunal, E.Z.B., Kolkata, in Appeal No. C/216/02 WITH F C. A. NO. 8309 OF 2916. S. Ganesh, Sr. Adv., Ajay Aggarwal, Ms. Mallika Joshi, Ms. Ruchika, Rajan Narain, Prateek Rusia, Gaurav Agrawal, Advs. for the Appellant. A.K. Panda, Sr. Adv., Ms. Nisha Bagchi, Arijit Prasad, Ms. G Ruksana Chowdhary, Ms. Pooja Sh,arma, B. Krishna Pras\ld, Advs. for the Respondent. The Judgment of the Court was delivered by H SUPREME COURT REPORTS . [2016]'5 S.C.R. A DIPAK MISRA, .J. I. Leave granted in SLP. (Civil) No. 11487 of2006.~ ~ ·.. 2. Keeping in view.the ne~d to fortify the traditional connection and strei:igthen the e<?onbmic coqperation for the purpose of development and mutual benefit, th~ .Governtpent of Indii1; had .signed the Treaty of B Trade witl~ His Majesty's Government of Nepal.in July, 1996. Articles III, IV and V of the said Treaty read as.fpllows;-" Article III

Both the contracting parties shall accord unconditionally to each other treatment no less favourable than that accorded to any third c country with respect to (a) customs duties and charges of any kind imposed on or in connection with importation and exportation . and (b) import regulation.s includi~g qu;mtitative restrictions. 'Article IV The contracting parties agree, on a.reciprocal basis,. to exemptD from basic customs duty as well as from quantitative restrictions the import of such primary products as m~y be mutually agreed upon, from each other. . ' · · ,· Article V E ·Notwithstanding the provisions of Atticle III and subject to such exceptions as may be made after consultation with His Majesty's Government of Nepal, the govemmentoflndia agree to promote the industrial development ofNepal through the grant on the basis of non-reciprocity of specially favourable treatment to imports into India of industrial products manufactured in Nepal in respect F of customs duty and quantitative restrictions normally applicable to them". 3. The protocol to the Treaty with reference to Article V stipulated many clauses. With reference to Article V cla~ses which are relevant are reproduced below:~ · · G "J.. The Government of India will provide access to the Iitdran market free of customs duties and the quantitative restrictions for ·all articles manufactured in Nepal.. xxxx xxxx xxxx MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1017 OF CUSTOMS, PATNA [DIPAK MISRA, J.]

3 .' On the basis of a Certificate issued, for each consignment of A · produ~ts m~nufactured in the small scale units in Nepal, by His Majesty's Government of Nepal, or by an agency designated by His Majesty's government of Nepal that the relevant conditions applicable to the products manufactured jn similar small scale industrial units in India for relief in the levy ofapplicable Excise B Duty rates are fulfilled for such a parity, Government oflndia will extend parity in the levy of Additional duty on such Nepalese products equal to the treatment provided in :the levy of effective Excise Duty on similar Indian products under the Indian customs and Central Excise Tariff. c 4. The "Additional Duty" rates equal to the effective Ihdian Excise duty rates applicable to similar Indian Products under the Indian Customs & Central Excise Tariff will continue to be levied on the imports into India of products manuf11ctured.i11the medium af?.d large scale units in Nepal.

D 4(i) In regard to "additional duty".collected by the Government of India in respect of manufactured articles other than those manufactured in "small" units: Wherever it is established that the cost of production of an articles is higher in Nepal than the cost of production in a corresponding unit iri fodia, a sum representing such difference in the cost of productiori, but not exceeding 25 E percent of the "additional duty" collected by the Government of ·India, will be paid of His Majesty's Government ofNepal provided. Hi!\ Majesty's Government ofNepal have given assistance to the . same .e]\tent to the (manufacturers) exporters". . 4. ·Pursuant to the aforesaid Treaty, the Government ofindia issued F a Notification No. 37of1996 dated 23.7.1996, in exerCise of powers under Section 25 of the Customs Act, 19.62 (for short; "the Customs Act") whereby specified goods in the notification when imported into. India from Nepal were exempted "from the whole'; of the cus.toms duty leviable under the First Schedule to the CustOms Tiµ-iff Act, 1975 (for brevity, "the Tariff Act'') subject to the conditions, jf any, specified in the G corresponding entry in column (3) of the Table to the.notification. There is rio dispute that the appeilant who was importing various dentai hygiene products from Nepal was entitled to avail exemption under the notification. As the factual matrix would unveil, it was availing the exemption from the customs duty under the notification. H

1018 SUPREME COURT REPORTS [2016] 5 S.C.R. A 5. In the year 1998, Section 3A was introduced in the Tariff Act. To appreciate the scheme of the Tariff Act, it is desirable to refer to Section 2 of the Tariff Act, which reads as follows:-"Section 2 : Duties specified in the Schedules to be levied. The "rates at which duties of customs shall be levied under the B Customs Act, 1962 (52 of 1962), are specified in the First and Second Schedules." Schedule I to the Tariff Act incorporates the duties on the imports and Schedule II on the exports. 6. Section 3 of the Tariff Act specifies about the levy of additional c duty equal to excise duty. It is as follows:-"Section 3: Levy of additional duty equal to excise duty. -

(l) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the Additional duty) equal to the excise duty for the time being leviable on a like D article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated atthat percentage of the value of the imported article. Provided that in case of any alcoholic liquor for human E consumption imported into India, the Central Government may, by notification in the Official Gazette, specify the rate of additional duty having regard to the excise duty for the time being leviable on a like alcoholic liquor produced or manufactured in different States, or, if a like alcoholic liquor is not produced or manufactured in any State, then, having regard to the excise duty which would F be leviable for the time being in different States on the class or description of alcoholic liquor to which such imported alcoholic liquor belongs." 7. Section 3A which has been introduced in 1998 provides for impo.sition of special additional duty. The relevant portion of the said G Section reads as follows:-

"3A. Special additional duty. -( 1) Any article which is imported into India shall in addition be liable to a duty (hereinafter referred to in this section as the special additional duty), which shall be levied at a rate to be specified by the Central Government, by H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1019 OF CUSTOMS, PATNA [DIPAK MISRA, J.] notification in the Official Gazette, having regard to the maximum A sales tax, local tax or any other charges for the time being leviable on a like article on its sale or purchase in India: Provided that until such rate is specified by the Central Government, the special additional duty shall be levied and collected at the rate of eight percent of the value of the article imported into B India." 8. After the said provision came into force, Notification No. 18/ 2000-Customs was issued on 1''March, 2000. By the said notification the Central Government prescribed the rates of special duty. Relevant part of the notification is reproduced below:- C "Notification No.18/2000-Customs

In exercise of the powers conferred by sub-section ( 1) of section 3A of the Customs Tariff Act, 1975 (51 of 1975) (hereinafter referred to as the Customs Tariff Act), the Central Government, having regard to the maximum sales tax, local tax or any other D charges for the time being leviable in the like goods on their sale of purchase in India, hereby specifies the rates of special additional duty as indicated in column (4) of the Table below in respect of goods, when imported into India, specified in.corresponding entry in column (3) of the said Table and falling within the Chapter, E Heading No. or Sub-Heading No. of the First Schedule to the Customs Tariff Act as are specified in the corresponding entry in column (2) of the said table: Provided that in respect of the goods specified against S. Nos. 24, 25, 26, 31 and 32 of the said Table, "Nil" rate shall be stibject10~ F the conditions, if any, subject to which the goods are exempt either partially or wholly from the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act." 9. After the rates were prescribed, the appellant was asked to pay Special Additional Duty (SAD) and it paid under protest. Thereafter, GNotification No. 124/2000-Customs was issued on 29 .09 .2000 amending the Notification No. 37/96-Customs dated 23'd July, 1996. For proper appreciation of the controversy, it is appropriate to reproduce the contents of the said notification:-

"Notification No. 124/2000-Customs H 1020 SUPREME COURT REPORTS [2016] 5 S.C.R. A In exercise of powers conferred sub-section (4) of Section 3A of the Customs Tariff Act, 1975 (51 of 1975) read with sub-section (1) of section 25 of the Customs Act, 1962 (52 of! 962), the Central Government being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendment in the notification of the Government oflndia in the Ministry of Finance B (Department of Revenue), No. 37/96-Customs, dated the 23'd July, 1996, namely:- In the said notification, for the words and figures "from the whole of duty of customs leviable thereon under the First Schedule to c the Customs Tariff Act, 1975", the words, figure and letter "from the whole of the duty of customs Jeviable thereon under the First Schedule to the said Customs Tariff Act, and special additional duty leviable under section 3A of the said Customs Tariff Act" shall be substituted." I 0. After the said notification was issued, the appellant filed an D applicatfoi10ri 15.01.2001 for refund of Special Additional Duty (SAD) paid in respect of the imports made from Nepal during the period 01.03.2000 to 29.09.2000. The authority concerned rejected the said application preferred by the appellant. Eventually, the matter came up in appeal being Appeal No.C-216/02 before the Customs, Excise & Gold E (Control) Appellate Tribunal, Kolkata (for short, ''tribunal").

11. The stand of the appellant before the tribunal was that Notification No: 124/2000which amended the earlier Notification No. 3 7/96 and enlarged the scope of exemption from basic customs duty by including SAD, should be considered as retrospective in view of the language employed in the Treaty entered into between the two countries. F It was urged that all goods manufactured in Nepal and imported into India would be exempted from customs duty and equal to the excise duty for .the time being leviable on similar products manufactured in · India and ~ per the said Treaty, no SAD was leviable and hence, the notification-dated 29.09.2000 was clarificatory in nature. It was further G contended that levy of SAD after the rates were fixed was contrary to the terms of the Treaty and, therefore, it was rectified by issuing the Notification No. 124/2000 and, therefore, the appellant was entitled to refund of the amount which was paid towards SAD. It was further argued that on the basis of the representations made by the appellant and others seeking clarification on the leviability of SAD Notification H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1021 OF CUSTOMS, PATNA [DIPAK MISRA, J.] No. 124/2000 was issued and hence, it was retrospective in nature. A

12. On behalf of the revenue, resisting the stand put forth by the assessee, it was submitt(ld that prior to 29.09.2000 SAD was correctly levied in respect of the imports and there is no justification in treating the notification in question as retrospective, more so, when the _notification has clearly stated about scope of its applicability. B 13. The Member (Judicial) analysing the terms of the Treaty and the need for issuance of notification opined that:- · " ... If the terms of the Treaty by themselves were to be treated as law, then there was no need for the Government of India to even issue. the notification exempting imports from the Basic c Customs Duty. As rightly observed by the original adjudicating authority that undoubtedly, the Treaty provides the framework for the bilateral trade between the two countries; but the actual import and export is governed l:iy the Customs and Central Excise Statutes and the provisions of the Treaty do not, ipso facto, translate into D import and export procedures within India until a corresp,onding notification in Customs is issued to bring the same into effect. We are of the view that it may be lapse on the part of the.

Government of India not to issue the notification exempting the imports from SAD prior to 29.09.2000, but that lacuna cannot be. filled by the judiciary and .it is not our job to discuss as to what E notifications the-Cfoveniment should have issued or not to further the cause of the Treaty between the two·countries." 14. After stating so, the learned Member (Judicial) explaining the stand pertaining to clarificatory aspect of the notification observed that the exemption notification could not be considered to be having F retrospective effect and any exemption provision which enlarges the scope of earlier notification cannot be considered to be clarificatory. The learned Member (Judicial) further opined that earlier notification did not even remotely suggest that exemption from basic customs duty also included the exemption from SAD. That apart, it was held by the G · learned Member (Judicial) that the earlier notification exempted from basic custom duty and the latter from the SAD. Being of this view, the learned Member (Judicial) dismissed the appeal. t 15. The Member (Technical) expressed his dissent and opined that once a Treaty had been entered by the Central Government, the. H 1022 SUPREME COURT REPORTS [2016] 5 S.C.R.

A issue of notification under the provisions of the Customs Act, 1962 is a ministerial act. According to the learned Member (Technical), the notification dated 29.09.2000 was a belated response to effectuate the terms of the Treaty. Elaborating further, the learned Member (Technical) observed that if it was a simplicitor amendment to exempt or reduce the rates on certain specified imports, then an amendment would have been B required to be made to the Notification No. 18/2000-CUS dated 01.03.2000 and not to Notification No. 37/96 and that having been not done, it can be safely concluded that there was a belated reference and the real intention was to give retrospectivity to the notification. 16. It is apt to reproduce the observations made by the learned c Member (Technical):-" ... A Treaty entered into with a Sovereign State cannot be reneged, merely for want of an act of ministerial lapse or delay, the Treaties have to be given effect to. When such lapses are cured, subsequently by amendments, such amendment notifications D have to be retrospective in operation .... " 17. To come to such a conclusion, he placed reliance on UOI v. Yokasawa Blue Smart1 and Nestle India Ltd. v. State of Punjab=.

18. After so stating, the learned Member (Technical) opined that the matter should be referred to a larger Bench for a decision whether E amendment in such cases could be read retrospectively or not. As there was difference of opinion, the matter was placed before the third Member who was a Member (Technical). He referred to the point of difference which is to the following effect:- "Whether the appeal is required to be rejected as held by Member F (Judicial) or the matter needs to be referred to the Larger Bench as held by Member (Technical)." 19. The third Member referred to the views of the Member (Judicial) and Member (Technical) in extenso; noted the submissions advanced by the learned counsel for the parties; scanned the various G clauses of the Treaty; analysed the language employed in the notification dated 29.09.2000; distinguished the authorities relied upon by the Member (Technical); declined to accept the submission pertaining to doctrine of I 2001 (129) ELT 598 (KAR) ' 1999 (13) PHT 132 (P&H) H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1023 OF CUSTOMS, PATNA [DIPAK MISRA, J.]

promissory estoppel that was canvassed before him and eventually, came A to hold that both the notifications are independent and both would be applicable from the date they had been issued and they do not remotely suggest any retrospectivity. He further opined that there was no ambiguity in the earlier notification or in the subsequent Notification No.124/2000 and both the notifications operate in special fields - one granted Bexl:mption from basic customs duty and the other SAD of customs. Being of this view, he agreed with the Member (Judicial) and ultimately, the appeal stood dismissed. 20. We have heard Shri S. Ganesh, learned senior counsel for the appellant in Civil Appeal No. 8593 of2003 and Shri A.K. Panda, learned csenior counsel appearing for the respondents. 21. To appreciate the controversy in proper perspective, it is appropriate to understand the nature of the Treaty, the protocol appended thereto, the benefits extended thereunder, the impact of the two notifications and the nature of duty that was exempted. D

22. Article 3 states that the contracting parties shall accord unconditionally to each other treatment not less favourable than what was accorded to a third country in respect of the customs duties and other charges relating to import and export including quantitative restrictions. Article 4 relates to reciprocal arrangement between the two contracting parties to exempt basic customs duty and quantitative E restrictions on import as would be mutually agreed. Having referred to Articles 3 and 4, it is necessary to focus on Article 5. The said Article begins with non-obstante expression and would apply notwithstanding to Article 3. It is non-reciprocal. This Article states that the Government of India had agreed to promote industrial development of Nepal and F further agreed to grant special favourable treatment to imports into India of industrial products manufactured in Nepal in respect of customs duty and quantitative restrictions normally applicable to them. The words used in Article 5 are "customs duties". The non-reciprocal grant would be subject to exceptions as may be made after consultation with the Government ofNepal. As is evident, the Treaty was to be operative for G a period of five years from 51h December, 200 I. 23. We have already reproduced certain paragraphs from the Protocol. To have the correct perspective it is required to be quoted in entirety. It reads as follows:- H 1024 SUPREME COURT REPORTS [2016] 5 S.C.R.

A "I. The Government of India will provide access to the Indian market free of customs duties and the quantitative restrictions for all articles manufactured in Nepal. 2. (i) Import of articles in accordance with the para "I" above shall be allowed by the Indian customs authorities on the basis of B a certificate of Origin to be issued by the agency designated by His Majesty's Government of Nepal in the format prescribed at Annexure 'B' for each consignment of articles exported from Nepal to India. However, this facility shall not be available for the articles listed at Annexure 'C'. c (ii) In the event of the above facility leading to a surge in the import generally or in the import of any particular article, the two Governments shall enter into consultation with a view to taking appropriate measure. (iii) In the case of other articles made in Nepal which do not fulfill D the conditions required by the Certificate of Origin prescribed at Annexure 'B' including those Articles listed at Annexure 'C' for the purpose of Preferential treatment into India, the Government oflndia will provide normal access to the Indian market consistent with its MFN treatment.

E 3. On the basis of a Certificate issued, for each consignment of products manufactured in the small scale units in Nepal, by His Majesty's Government of Nepal, or by an agency designated by His Majesty's Government of Nepal that the relevant conditions applicable to the products manufactured in similar small scale industrial units in India for relief in the levy of applicable Excise F Duty rates are fulfilled for such a parity, Government oflndia will extend parity in the levy of Additional duty on such Nepalese products equal to the treatment provided in the levy of effective Excise Duty on similar Indian products under the Indian customs and Central Excise Tariff. G 4. The "Additional Duty" rates equal to the effective Indian Excise duty rates applicable to similar Indian Products under the Indian Customs & Central Excise Tariff will continue to be levied on the imports into India of product manufactured in the medium and large scale units in Nepal. H M/S COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1025 OF CUSTOMS, PATNA [DIPAK MISRA, J.]

4(i) In regard to "additional duty" collected by the Government of A India in respect of manufactured articles other tl:ian those manufactured in "small" units: Wherever it is established that the cost of production ofan articles is higher in Nepal than the cost of production in a corresponding unit in India, a sum representing such difference in the cost of production, but not exceeding 25 B percent of the "additional duty" collected by the Government of India, will be paid of His Majesty's Government ofNepal provided. His Majesty's Government ofNepal have given assistance to the same extent to the (manufacturers) exporters. 5. Export of consignments from Nepal accompanied by the c Certificate of Origin will normally not be subjected to any detention/ delays at the Indian Customs border, border check posts and other places enroute. In case any need for clarification arises, this will be obtained expeditiously, by the Indian b'order customs authorities from the Indian and Nepalese authorities, as the case may be. D 6. Where for social and economic reasons, the import of an item into India is permitted only through public sector agencies or where the import of an item is prohibited under the Indian Trade control regulations, the Government oflndia will consider any request of His Majesty's Government ofNepal for relaxation and will permit the import of such an item from Nepal in such a manner as may E be found to be suitable.

7. '?or the purpose of calculation ofimportduties customs valuation procedures, as prescribed under the prevailing custom law, will be followed." 24. No doubt paragraph I states that the Government of India F would provide access to Indian market free from customs duties and quantitative restrictions of all articles manufactured in Nepal, but this would be subject to other paragraphs, for paragraph 2 would indicate that the access to Indian market free from customs duty was subject to conditionalities and also restrictions. Paragraph 2 stipulates, the G requirement of certificate of origin which shou Id be as per the proforma prescribed by Annexure Band would not be applicable to Articles listed in Annexure-C for which normal access consistent with most favourable · nations' Treaty would be provided. Clause 3 deals with products manufactured by small-scale units in Nepal for which certificate would H 1026 SUPREME COURT REPORTS [2016] 5 S.C.R.

A be issued by the Government of Nepal or agency designated by them. For the said imported products, "reliefs" in the levy of excise duty applicable to products manufactured by similar small-scale industrial units in India, while fulfilled by the Nepalese small scale manufacture would apply. This clause, as we notice, gave parity and equal treatment to goods/products manufactured by small scale industrial units in Nepal as B was applicable to small-scale industrial units in India, who had been granted relief in relation to applicable to Indian customs and Central Excise Tariff. 25. It is pertinent to note here that the relief agreed related to duty c chargeable under the head of "additional duty". Clause 4 dealt with "additional duty applicable" on products manufactured by medium or large-scale units in Nepal in which case they were liable to pay additional duty equal to the effective Indian excise duty rates applicable to similar Indian products. A reading of paragraphs I, 3 and 4 would indicate that a distinction was made between the "basic customs duty" and "additional D duty" leviable under the Customs Act and Excise Act on import. "Additional duty" had reference to excise duty payable on the said products when manufactured in India. 26. The aforesaid clauses oblige us to read the relevant portion of the first exemption Notification No. 37/96-COS dated 23'd July, J 996. It E is as under:- "Notification No. 37/96-Customs

Iri exercise of the powers conferred by sub-section (I) of Section 25 of the Customs Act, 1962 (52of1962), the Central Government, being satisfied that it is necessary in the pub Iic interest so to do, F hereby exempts goods specified in column (2) of the Table below and falling within the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India from Nepal, from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975, subject to the conditions, if any, specified in the corresponding entry in column (3) of the G said Table". The table contains description of goods and enumerates certain ·conditions. What we are concerned with is the nature of exemption. As is noticeable, what was exempted under the notification were the goods specified in column 2 in the First Schedule to the Tariff Act from the H M/S COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1027 OF CUSTOMS, PATNA [DIPAK MISRA, J.] customs duty leviable thereon under the First Schedule to the Tariff Act. A It was also subject to the conditions specified therein.

27. It is apt to note here that Section 3A of the Tariff Act was enacted in the year 1998. This was a new provision and had stipulated that in addition to the customs duty and additional customs duty, special additional customs duty would be payable on the goods imported into B India, having regard to the maximum sales-tax, local tax or other charges for the time being leviable on the like article on the sale and purchase in India. The proviso stipulated that until such rates were specified by the Central Government, special additional duty shall be leviable and collected @ 8% on the imported product. In terms of said proviso, the Notification cNo.18/2000-Customs was issued on I" March, 2000 and the same has been quoted above.

28. It is vivid that the protocol to the Treaty of Trade had made a distinction between the "basic customs duty" and "additional customs duty". The basic customs duty was granted exemption. However, in Drespect of "additional duty" provisions of paragraph 3 or 4 were applicable. But, it is significant that the said protocol did not deal with special additional duty. Thus, per se and exfacie it is not possible to accept the position that "special additional duty" was itself exempted under the protocol. Paragraph I would not cover the "special additional duty", which was specific and limited as was clear from the exemption E notification dated 23'd July, 1996. It was restricted to the goods specified in column 2 of the First Schedule from the customs duty leviable under the First Schedule to the Tariff Act. In fact, special additional duty was not leviable and enforced when the Treaty of Trade was signed and the protocol was executed. Under these circumstances, it is not possible to Faccept the position that Clause I of the protocol had included and had embraced the "special additional duty", which was introduced in the form of Section 3A enacted in 1998.

29. The exemption which was granted by notification dated 291h September, 2000 was, therefore, in the nature of specific and new exemption from payment of special additional duty, which was otherwise G payable in view of the introduction of Section 3A to the Tariff Act. It is difficult to appreciate that the exemption granted vide notification dated 29'h September, 2000 to special additional duty was clarificatory or to give effect to the existing protocol. We think so as protocol appended to the Treaty could not have conceived of future levy by way of proposition. H 1028 SUPREME COURT REPORTS [2016] 5 S.C.R. A In any case, factually it does not. Therefore, the notification of 291h September, 2000 conferred a new benefit which was not earlier stipulated or the subject matter of protocol.

30. We would now refer to the decision of the High Court of Patna in Kaur Sain Traders v. Union of India-'. The said decision rightly B observes and highlights the distinction between the basic customs duty i.e. the import duty, the additional duty equal to the excise duty, and special additional duty which has reference to sales-tax, local-tax and other charges leviable on the articles of sale and purchase in India. The said distinction is clear from Sections 2, 3 and 3A of the Tariff Act. c Section 12 of the Customs Act, no doubt a charging Section, has to be read along with the Tariff Act. In fact, the Tariff Act also provides for further duties in the form of safeguarding duty under Section SB, countervailing duty under Section 9 and anti-dumping duty under Section 9A. Section 25 of the Customs Act stipulates that the Government may exempt certain goods from all duties of customs under Section 12 of the D Customs Act or Sections 3 or 3A of the Tariff Act. It was observed that incidence of duty in the two Acts, i.e., the Customs Act and the Tariff Act are independent to each other and one duty can be levied without the other. Decision in Associated Cement Companies Limited v. Commissioner, was distinguished. The ratio and finding in Associated Cement Companies Limited (supra) has to be read in the context of E the issue invoil cd in the said case as drawing, designs of those goods were not charg.:able to duty and were designated as free under the Tariff Act. In Hyderabad Industries Limited v. Union of India5, the difference in import under the Customs Act and the Tariff Act was noticed with reference to duty of customs chargeable under Section 12 F of the Customs Act, the additional duty chargeable under Section 3( I) of the Tariff Act and additional levied on raw-materials, components and ingredients under Section 3(3) of the Tariff Act. It was elucidated that the two Acts are independent statutes and merely because instance of tax under Section 3 of the Tariff Act arises on import of articles in India, it does not mean that the Tariff Act cannot provide for charging of duty G which was/is independent of customs duty leviable under the Customs Act. The Patna High Court has appropriately referred and relied on the

3 2005 (2) PLJR 744 '2001 (128) ELT 21 SC ' 1999 (108) ELT 321 SC H MIS COLGATE PALMOLIVE (INDIA) LTD. v. COMMISSIONER 1029 OF CUSTOMS, PATNA [DIPAK MISRA, J.] view taken by the Bombay High Court in Apas Private Limited v. Union A of India6• 31. At this stage, we would also deal with the judgments relied by the respondents and the circular No.112/2003.COS.31/J 2/2003 dated 3 I .03.2003. This circular was issued pursuant to tariff conference of the Chief Commissioners of Customs and the discussions held. B Divergence of practice on implementation of exemption under Central Excise Notification No. 6/2002-CE dated 01.03.2002 was noticed. Pertinently, the exemption was granted to a manufacturer of copper goods from raw-material, other than the copper-ore or copper concentrate. The exemption was restricted and applicable upon cverification that the manufacture was from raw-material, other than the copper-ore or copper concentrate. The doubt had arisen whether exemption should be granted when the manufacturer was located in Nepal. In the said context the Board had accepted the recommendations of the conference that in.the light of the Indo-Nepal Treaty, verification could be undertaken by the Indian customs in Nepal and accordingly D there was no Tl'" -;on not to extend the benefit in case of imports made from Nepal und1.:r Notification No.6/2002 dated I" March, 2002.

32. Decisions in the case of W.P.I.L. Limited v. Commissioner, Central Excise' and Raison India Limited v. Commissioner of Central Excise, Cllan<ligarli8 do not assist the appellant. In the said E authorities, the contention of the assessee was accepted on the ground that both power driven pumps as well as parts of power driven pump had for long remained exempt. However, when earlier notifications were rescinded in order to consolidate and reduce the number of notifications and then the new notification was issued on I st March, F 1994 then by mistake and erroneously parts of power driven pump were not included, whereas manufacture of power driven pumps was included. In this context, it was held that the subsequent notification including parts of power driven pump was merely clarificatory and when clarificatory notifications are issued, they have retrospective effect. The instant case is not suggestive of any mis take or error or even G inadvertence. The plea that there was delay in issue of notification, exempting special additional duty is not acceptable. It is because, what 6 1985 (22) ELT 644 Bombay 7 2005 ( 181) ELT 259 SC "2015 (319) ELT 234 SC H 1030 SUPREME COURT REPORTS [2016] 5 S.C.R.

A was earlier exempted under the protocol was basic customs duty and also additional customs duty equal to the duty of excise in some cases and on satisfying the conditions stipulated and it did not deal and relate to special additional duty chargeable under Section 3A of the Tariff Act, which had introduced a new duty altogether. Therefore, we repel the submission that the exemption notification issued on 29th September, B 2000 is clarificatory. It was intended to be applied prospectively. That apart, it cannot be also said the issue of notification was a formal ministerial act which got delayed for administrative reasons. It was a conscious act and a deliberate decision which came into existence after due deliberation when it was decided to grant exemption under Section c 3A of the Tariff Act. 33. In view ofour foregoing analysis, we find no merit in the appeals preferred by the assessee and accordingly dismiss them without any order as to costs. Kalpana K. Tripathy Appeals dismissed. D