JUDGMENT
1. The petitioners are a partnership firm carrying on business of export and import. In the month of October 1983, the petitioners imported a consignment of 84 cases containing 50,000 pieces of Spark Plugs. The Spark Plugs imported by the petitioners are used in industrial pumps and engines. The petitioners filed Bill of Entry dated October 6, 1983 for clearance of the goods. The Customs authorities did not allow clearance on the ground that the cargo was under-valued and the cargo was not covered by the relevant licence under which the import was effected. The Additional Collector of Customs, Bombay, confiscated the cargo and imposed fine of Rs. 2,00,000/- in lieu of confiscation, in addition to re-fixing the value of the consignment against declared value. The Bill of Entry was accordingly revised on June 5, 1984. The petitioners challenged the order of confiscation by filing an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, and the appeal was allowed by an order dated December 12, 1984.
2. During the pendency of the appeal, the cargo remained in the custody of the Bombay Port Trust. After the appellate authority held in favour of the petitioners, the petitioners applied on December 15, 1984 for issuance of Detention Certificate. The Collector of Customs issued Detention Certificate dated January 22, 1985 certifying the period of detention from October 23, 1983 to January 9, 1985 and the cause of detention mentioned was “bona fide operation of ITC formalities”. After receipt of the Detention Certificate, the petitioners paid the duty and cleared the goods. The petitioners thereafter addressed a letter dated January 31, 1985 to the respondents requesting for remission of the maximum amount of demurrage. The remission was sought on the ground that the petitioners were small entrepreneurs with a small turn-over and limited resources. The petitioners learnt through their Clearing Agents that the rate applicable in respect of the consignment imported by the petitioner was one prescribed under Rate 48 of Scale of Rates charged at the Docks and approved by the Board of Trustees of the Port of Bombay. The petitioners claim that the rate should be one under 53. The petitioners were given certain remission, but as the petitioners failed to pay the demurrage charges, the respondents threatened to auction the goods. The petitioners thereafter approached this Court by filing the present petition on March 13, 1985 seeking a writ of mandamus directing the respondents to fully remit the demurrage amount for the period commencing from April 19, 1983 till the delivery of the cargo. The claim of the petitioners is based on the contention that the rate applicable is one provided under 53 and not 48 as charged by the respondents and that is the only question for consideration in this petition.
3. The Bombay Port Trust has published the Scale of Rates charged at the Docks and which are approved by the Board of Trustees of the Port of Bombay under Sections 48 to 51 of the Major Port Trusts Act, 1963. These Scales are in force from July 1, 1975. Item 48 reads as under :-
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Rate Description of Unit of Rate
No. goods charge ---------
Rs. P.
-----------------------------------------------------------------------
(1) (2) (3) (4)
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48 Instruments, apparatus, Tonne 177.00
fittings & appliances, subject to
scientific, medical a minimum
photographic & electrical of Rs.
including precision 35.00
instruments used in
Industry & parts thereof
NOTE : The electrical control gears and accessories
of the following description.
though forming integral parts of
machine/machinery but imported/exported
separately as spares or as
independent units will be
assessed to wharfage under this rate :
(i) Switches/Isolaters
(ii) Fuses/Switch Fuses
(iii) Motor starters/contractors
(iv) Current breaking devices
(Oil circuit breakers, air
circuit breakers).
(v) Condensers/Capacitors
(vi) Instrument transformers
(vii) Instruments such as ammeters
(viii) Relays of all types
(ix) Panel boards incorporating
the above components, etc.
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The relevant portion of Item No. 53 reads as under :
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Rate Description of goods Unit of Rate
No. charge Rs. P.
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53. Machinery of all kinds, not Tonne 13.40
otherwise specified, including
electrical machinery, boilers,
machine tools, machinery parts,
etc.
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The learned counsel appearing on behalf of the petitioners very strenuously urged that the rate of demurrage should be under Item 53 as the item Spark Plug would fall under the expression “electrical machinery” or “machinery parts”. It was urged that the Spark Plugs should be considered as an electrical machinery and in support of that support of that submission, reliance is placed upon Customs Tariff Entry 85.08 under Chapter 85. The relevant entry reads as under :-
“Electrical starting and ignition equipment for internal combustion engines (including ignition magnetes, magnete-dynamos, ignition coils, starter motors, sparking plugs and glow plugs.”
It was urged that if the expression “sparking plugs” is mentioned in Chapter 85 of the Customs Tariff, it should be concluded that spark plug is an electrical machine. It is not possible to accede to the submission because the heading of Chapter 85 is “Electrical Machinery and Equipment; Parts thereof. It is, therefore, obvious that Chapter 85 does not deal only with electrical machinery, but also with equipments and parts thereof. It is, therefore, futile for the petitioners to suggest that spark plug referred to in Item 85.08 should be considered as an electrical machinery.
4. The learned counsel appearing on behalf of the petitioners then submitted that in any event spark plug would fall under the expression “machinery parts” in Item 53 of Scale of Rates. Reliance was placed on the decision of the Supreme Court in the case of Commissioner of Income Tax, Madras v. Mir Mohammad Ali reported in A.I.R. 1964 Supreme Court 1693 where the Supreme Court approved the observations made by the Privy Council in the case of Corporation of Calcutta v. Chairman Cossipore and Chitore Municipality reported in A.I.R. 1922 Privy Council 27 providing definition of expression “machinery”. The Privy Council observed :
“The word ‘machinery’ when used in ordinary language prima facie, means some mechanical contrivances which by themselves or in combination with one or more other mechanical contrivances, by the combined movement and inter-dependent operation of their respective parts generate power, or evoke, modify, apply or direct natural forces with the object in each case of effecting so definite and specific a result.”
Relying on this definition set out by the Privy Council, the Supreme Court held that the diesel engine clearly falls under the expression ‘machinery’. It is not possible to accept the submission of the learned counsel that reading the definition of expression “machine” as propounded by the Privy Council, it should be concluded that spark plug is a part of machinery. The spark plug is used for igniting power and put the machine in motion, but that cannot by any stretch of imagination be said to be a part of the machine. Indeed, it is not a dominant or necessary part of the machine.
Shri Makhija learned counsel appearing on behalf of the respondents, very rightly pointed out that each and every machinery part, if imported separately, would not necessarily fall under Item 53 but would attract Item 48 of the Scale of Rates. The learned counsel pointed out that plain reading of Item 48 would indicate that electrical control gears and various electrical accessories even forming integral part of machine, but imported separately as spares or as independent units will be liable to be assessed under Item 48. For illustration, switches, fuses, motor starters, condensers, relays of all types are considered as electrical appliances or instrument and are liable to be charged under Item 48 when imported separately as spares or as independent units. The Spark Plug would also fall under the same item. It was vehemently urged for the petitioners that the spark plugs are not included in the list set out under Item 48 and, therefore, it should be concluded that spark plug is a machinery part but not included in Item 48. It is not possible to accede to this submission. The mere fact that spark plugs are not specifically included in the list set out at Item 48 would not automatically make them a machinery part. In my judgment, the list set out in Item 48 is illustrative in nature and not exhaustive and the spark plug is liable to be charged under Item 48. In my judgment, the grievance of the petitioner is without any substance and the petitioners are not entitled to the relief.
5. Accordingly, petition fails and rule is discharged, but in the circumstances of the case, there will be no order as to costs.