M. B. SHAH, J. ( 1 ) IN these two petitions the petitioner is Indian Farmers Fertilizer co-operative Limited (known as IFFCO), a Multi-unit Co-operative Society engaged in the manufacture of chemical fertilizers and allied products, byeproducts and their conversions, storage, transportation and marketing. His factories are in Kalol and New Kandla Port in the State of Gujarat. It is their say that they regularly import "phosphoric acid" for use in the manufacture of Nitrogen phosperous Potash in large quantity. The question involved in both these petitions is whether Phosphoric Acid imported by the petitioner for manufacture of fertilizer was liable to pay auxiliary duty of customs at the rate of 15 percent under clause 1 of the Notification No. 14 dated 1/03/1974 issued by the Central government in exercise of its powers under Sec. 25 (1) of the Customs Act, 1962 read with Clause 19 (4) of the Finance Bill, 1974 or whether at the rate of 5 percent under Clause 2 of the said Notification. ( 2 ) THE petitioner imported a consignment of Phosphoric Acid for the manufacture of fertilizer under bill of Entry No. 67 dated 10/05/1974 which is the subject-matter of Special Civil Application No. 94 of 1977. They also imported three consignments of Phosphoric Acid for the manufacture of fertilizer under separate bills of entry between the period 26/03/1975 and 1 1/08/1975 which are the subject-matter of Special Civil Application No. 472 of 1977. ( 3 ) AT the relevant time the rates at which the customs duty was to be recovered were specified in the First and Second Schedules of the Indian Tariff act, 1934. The Tariff Act, 1934 provided for levy of duty at standard rate, preferential rate and protective rate as specified in the First Schedule. In these two petitions we are concerned with Item No. 28 (16) which prescribes the standard rate and preferential rate of duty for Phosphoric Acid. The relevant part of the said item is as under :"the FIRST SCHEDULE-IMPORT PART : preferential rate of duty if the article is the Duration produce or manu- of item Name of Nature Standard facture of process. No. article of duty rate of rates duty The A of united British Burma duty kingdom Colony xx xx xx xx xx xx xx xx 28 (16) Phosphoric Revenue 60 per cent. . . . 10. . . . No. article of duty rate of rates duty The A of united British Burma duty kingdom Colony xx xx xx xx xx xx xx xx 28 (16) Phosphoric Revenue 60 per cent. . . . 10. . . . Acid ad valorem percent ad valorem section 25 of the Customs Act empowers the Central Government in the public interest to "exempt generally either absolutely or subject to such conditions as may be specified in the notification, goods of any specified description from the whole or any part of duty of custody leviable thereon". Under Sec. 25 the Government of India has issued the following Notification (Annexure "a") :"under Government of India, Ministry of Finance (Department of Revenue and insurance), Notification No. 81-Customs, dated the 28/04/1969, a subsequently amended by Notification No. 49-Customs, dated the 29/05/1971 and No. 88- customs, dated the 23/10/1971 the Central Government hereby exempts phosphoric Acid falling under this item when imported for the manufacture of fertilizer, from so much of that portion of the duty of customs leviable thereon which is specified in the First Schedule to the Indian Tariff Act, 1934, as is in excess of 33 percent ad valorem. " ( 4 ) SECTION 19 of the Finance Act, 1974 has made provision for levy of auxiliary duty on goods covered by the First Schedule to the Tariff Act as amended from time to time at 20% of the value of the goods as determined in accordance with the provisions of Sec. 14 of the Customs Act, 1962. The auxiliary duty is in addition to the duties chargeable under the Customs Act. Thereafter, in exercise of the power conferred upon Sec. 25 (1) of the Customs Act and Clause 19 (4) of the Finance Act, 1974, the Central Government by Notification dated 1/03/1974 (Annexure "b") exempted the goods specified in column 2 of the Table being goods mentioned in the First Schedule to the Act, from so much of the auxiliary duty as is in excess of the rate specified in column 3 of the said Table. The relevant part of the notification is as under :"serial Description of Goods Rate of auxiliary no. duty of Customs (1) (2) (3) 1. The relevant part of the notification is as under :"serial Description of Goods Rate of auxiliary no. duty of Customs (1) (2) (3) 1. Goods in respect of which the rate of Fifteen percent of the value duty of customs specified in the said of the goods as determined first Schedule read with any relevant in accordamce with the provinotification of the Government of sions of Sec. 14 of the india for the time being in force, is Customs Act, 1962 (52 of 60 percent ad valorem or more but 1962 ). less than 100 percent ad valorem. 2. Goods in respect of which the rate of Five percent of the value of duty of customs specified in the said the goods as determined in first Schedule read with any relevant accordance with provinotification of the Government of sions of the Sec. 14 of the india for the time being in force, is Customs Act, 1962 (52 of less than 60 percent ad valorem or nil 1962 ). 3. xxx xxx 4. xxx xxx explanation :- For the purposes of Serial Nos. 1 and 2 in the above table, the expression "the rate of duty of customs specified in the said First schedule read with any relevant notification of the Government of India", in relation to any article liable to two or more different rates of duty, means that rate of duty which is the highest of those rates. "it is the contention of the petitioner that "phosphoric Acid" imported by the petitioner for the manufacture of fertilizer is liable to auxiliary duty at the rate of 5 percent under clause 2 of the aforesaid Table and not at 15 percent under clause 1. ( 5 ) WE may mention at this stage that these petitions came up for hearing before the Division Bench consisting of B. J. Divan, C. J. and A. M. Ahmadi, j. (as he then was) in the year 1981. There was difference of opinion, therefore two different judgments were pronounced on 10/08/1981. B. J. Divan, c. J. arrived at the conclusion that Phosphoric Acid imported for the manufacture of fertilizer was liable to two or more different rates of duty viz. 30% generally and 15% if imported from Burma. There was difference of opinion, therefore two different judgments were pronounced on 10/08/1981. B. J. Divan, c. J. arrived at the conclusion that Phosphoric Acid imported for the manufacture of fertilizer was liable to two or more different rates of duty viz. 30% generally and 15% if imported from Burma. It was the rate of 30% that was required to be taken into consideration for the purpose of considering whether this particular class of goods fall within Serial No. 1 or 2 and the higher of the two rates was 30%. Hence it would fall within Serial No. 2. Ahmadi J. arrived at the conclusion that Phosphoric Acid is one item and the standard duty for phosphoric Acid is undoubtedly 60% ad valorem under the Tariff Item 28 (16) and because exemption is granted if it is imported for the purpose of manufacture of fertilizer, it is reduced by 30%. Therefore, there are two different rates and as per the Explanation to clauses 1 and 2, the higher rate is to be taken into consideration for the purpose of Serial Nos. 1 and 2 in the Table mentioned above. The expression "the rate of duty of customs specified in the said First schedule read with any relevant notification of the Government of India". ( 6 ) AS there was difference of opinion, the matter was referred to the third judge under Clause 36 of the Letters Patent. The following question was referred for the opinion of the third Judge : "whether Phosphoric Acid imported for the manufacture of fertilizers falls under serial No. 2 or under Serial No. 1 of the Table set out in the Notification of 1/03/1974 ?" b. K. Mehta, J. , by his judgment and order dated 10/12/1982 refused to answer the question on the ground that the preliminary objection raised on behalf of the respondent as to maintainability of the petition was required to be decided and as it was not decided, the entire exercise of answering the reference becomes academic or is such that it may not decide the appeal. It was further ordered that the matter may be placed before the learned Justice to adopt the course as suggested by the Full Bench of Lahore High Court in Royal Calcutta turf Club v. Kishan Chand, AIR 1943 Lah 84, i. e. to constitute another division Bench. It was further ordered that the matter may be placed before the learned Justice to adopt the course as suggested by the Full Bench of Lahore High Court in Royal Calcutta turf Club v. Kishan Chand, AIR 1943 Lah 84, i. e. to constitute another division Bench. ( 7 ) THEREAFTER this matter is placed before us for final disposal. ( 8 ) AT the time of hearing of this matter, learned Counsel appearing on behalf of the respondent has not pressed the following preliminary objections which were raised before the previous Division Bench :" (I) Both these petitions, though filed before the Constitution (Forty- second Amendment) Act, 1976, abated, on the coming into force of the said Amending Act with reflect from 1/02/1977 by virtue of Sec. 58 thereof; (ii) Even if it is held that the two petitions did not abate, both the petitions are not maintainable and no relief whatsoever can be granted to the petitioners in these two petitions in view of the clear mandate of the newly added clause (3) to Art. 226 of the constitution, inasmuch as, provision for an efficacious remedy is made under the Customs Act; (iii) As the petitioners had withdrawn their earlier petition Spl. C. A. No. 1377 of 1976 filed against the impugned order of 6/09/1976 the present two petitions filed subsequently on the same cause of action challenging the very same order are barred by principles analogous to those contained in Order 23 Rule 1 of C. P. C. 1908; and (iv) Even though the earlier writ petition was withdrawn on 6/09/1976 on the ostensible ground that the petitioner wanted to approach the Central Government by way of revision application against the impugned order, no such revision application was filed but instead the present two petitions were filed on 17/01/1977 and during the pendency of the said two petitions, the petitioner preferred a revision application on 1/08/1977 which was clearly barred by limitation under Sec. 131 (2) of the Customs Act and, therefore, having regard to the said conduct of the petitions, this Court should refuse to exercise its discretion under Art. 226 of the constitution of India in favour of the petitions. "as the preliminary objections are not pressed, we are straightaway required to consider the disputed question whether auxiliary duty for Phosphoric Acid for manufacture of fertilizer is required to be charged on the basis of Serial no. 1 at the rate of 15 percent or on the basis of Serial No. 2 at the rate of 5 percent. ( 9 ) SECTION 12 of the Customs Act, 1962 provides that except as otherwise provided in this Act or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Indian tariff Act, 1934 (at present it is amended as Customs Tariff Act, 1985) with which we are not concerned or any other law for the time being in force, on goods imported into, or exported from India. Therefore, on the import of the goods into India, duties of customs as specified in the First and Second schedules of the Indian Tariff Act, 1934 are required to be levied. This is provided in Sec. 2 of the Indian Tariff Act. The said Act empowers the central Government for levy of preferential rates of duties and protective rates of duties. For the import of Phosphoric Acid is Tariff Item 28 (16) which provides standard rate of duty at 60 percent ad valorem and preferential rate of duty if it is imported from Burma at 10 percent ad valorem. Section 25 of the Customs Act empowers the Central Government in the public interest to exempt generally either absolutely or subject to such conditions as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. Pursuant to the said power, for the Phosphoric Acid notification Annexure "a" dated 28/04/1969 is issued whereby the Central Government has exempted Phosphoric Acid falling under Item 28 (16) when imported for the manufacture of fertilizer so much of that portion of the duty of customs leviable thereon which is in excess of 30 percent ad valorem. Therefore, for the "phosphoric Acid" (goods or article) the standard rate of duty is 60 percent ad valorem, preferential rate of duty is 10 percent ad valorem if it is imported from Burma and 30 percent ad valorem if it is imported for the manufacture of fertilizer from a country other than Burma. Therefore, for the "phosphoric Acid" (goods or article) the standard rate of duty is 60 percent ad valorem, preferential rate of duty is 10 percent ad valorem if it is imported from Burma and 30 percent ad valorem if it is imported for the manufacture of fertilizer from a country other than Burma. Therefore, it is apparent that for the Phosphoric acid (i. e. the goods or article) three different rates of duty are fixed. Then for determining auxiliary duty, explanation to the Table stated above would be required to be considered. The explanation provides that for the purposes of Serial Nos. 1 and 2 in the above Table, the expression "rate of duty of customs specified in the said First Schedule read with any relevant notification of the Government of India" in relation to any article liable to two or more different rates of duty, means that rate of duty which is the highest of those rates. In this case 60 percent is the highest rate of duty specified in the First Schedule for the Phosphoric Acid as per Item 28 (16 ). Hence it would fall under Serial No. 1 of the aforesaid table and 15 percent auxiliary duty is required to be paid. It cannot be said that Phosphoric Acid which is imported for the purpose of manufacturing fertilizer is a different article. By notification Annexure "a" only exemption in part of payment of duty is granted. But it does not mean that the nature of the goods is changed because it is imported for the manufacture of fertilizer. By the grant of exemption no new item viz. Phosphoric Acid imported for manufacture of fertilizer is added in the First Schedule of the Indian Tariff Act, 1934. The result is that if the Phosphoric Acid is imported; (i) for any other purpose except for manufacture of fertilizer, than there would be 60 percent ad valorem duty plus 15 percent auxiliary duty; (ii) from Burma, preferential duty would be only 10 percent, auxiliary duty would be 15 percent; and (iii) for manufacture of fertilizer from country other than Burma, the duty would be 30 percent in view of the notification Annexure "a" plus 15 percent auxiliary duty. ( 10 ) HOWEVER, the learned Advocate General appearing for the petitioner vehemently contended that the expression "rate of duty of customs specified in the said First Schedule read with any relevant notification of Government of india" would relate to a different article for which different duty is fixed and as maximum is 30 percent ad valorem, it would fall in Serial No. 2 of the aforesaid Table. He, therefore, submitted that - (1) for the purpose of auxiliary duty the case of the petitioner falls only within Serial No. 2 because of the notification Annexure "a" and the language of Serial No. 2 of the Table; (2) separate meaning should be given to the expression "goods in respect of which the rate of duty of customs specified in the said First Schedule read with any relevant notification of the Government of India for the time being in force, used in clauses 1 and 2 of the aforesaid Table, and (3) even if Explanation applies, there are two rates of duty - one 10 percent and another 30 per cent and, therefore, auxiliary duty at the rate of 5 percent could be recovered. ( 11 ) IN our view, it is difficult to accept the aforesaid contentions mainly because as stated above "phosphoric Acid" is one article or the goods over which duty is to be recovered. It does not become a separate article or goods when it is imported for manufacture of fertilizer. It is the same article even if it is imported from Burma. Merely because exemption is granted in payment of whole or in part of duty of customs, it would not mean that the goods or article is different. Section 25 of the Customs Act empowers the Central Government in public interest to grant such exemption in payment of duty of customs leviable on goods of any specified description. Therefore, the goods remain the same and if it is imported for some specified purpose, it may be wholly or partly exempt from payment of duty of customs. Section 25 of the Customs Act empowers the Central Government in public interest to grant such exemption in payment of duty of customs leviable on goods of any specified description. Therefore, the goods remain the same and if it is imported for some specified purpose, it may be wholly or partly exempt from payment of duty of customs. The expression "rate of duty of customs specified in the said First Schedule read with any relevant notification of the Government of India" would in the present case mean 60 percent standard rate of duty of customs which is specified in Item 28 (16) in the First Schedule and this is to be read with the relevant notification of the Government of India which is at Annexure "a" which exempts Phosphoric Acid falling under this item when imported for manufacture of fertilizer from so much of that portion of the duty of customs i. e. from 60 percent which is in excess of 30 percent ad valorem. Therefore, the submission of the learned Advocate General is without any basis. ( 12 ) THE learned Advocate General, however, submitted that in the notification Annexure "b" in clauses 1 and 2 of the aforesaid Table the word "goods" issued while in Item 28 (16) the word "article" is used and, therefore, different meaning should be ascribed to the expression "goods in respect of which the rate of duty of customs specified in the said First Schedule read with any relevant notification of the Government of India". In our view, this submission is also without any substance. Section 12 of the Customs Act, as stated above, specially provides levy of duties of customs on "goods" imported into, or exported from, India. It uses the word "goods" in all the Sections including Sec. 25 of the Customs Act. In the Tariff Act "goods" are considered to be "article" and for different articles different rate of duty is provided. If we read the word "goods" used in Sec. 12 read with Sec. 25 and relevant items in the Indian Tariff Act, 1934, it is clear that there is no difference between the word "goods" or "article". Further, merely because the notification is issued under Sec. 25 giving exemption in part of duty of customs, it would not mean that it would be a different "article" or "goods". Further, merely because the notification is issued under Sec. 25 giving exemption in part of duty of customs, it would not mean that it would be a different "article" or "goods". Further, by grant of exemption in part by notification under Sec. 25, no additional item is added in the First Schedule of the Indian Tariff Act. The notification which grants exemption is added as a note under Item 28 (16) and it specifically provides that for the (article) Phosphoric Acid falling under this item (i. e. Item 28 (16) exemption is granted as stated therein. Therefore, there is no addition of any item in the First Schedule by issuance of notification granting exemption. In this view of the matter, the highest rate of duty of customs on Phosphoric Acid is 60 percent. Therefore, auxiliary duty would be as per clause 1 of the Table which is 15 percent of the value of the goods. The interpretation of notification Annexure "b" given by the customs authority is manifestly correct. ( 13 ) IN our view, there is no substance in the submission that the benefit which the notification seeks to give by one hand would be taken away by another hand by the aforesaid interpretation of the Explanation. As stated above, the purpose of issuing notification Annexure "b" was to give relief insofar as the rate of auxiliary duty is concerned. That purpose would be satisfied even if the goods is covered by clause 1 or 2 of the Table to the Notification. It cannot be said that by recovering 15 percent auxiliary duty the purpose of giving exemption would be frustrated. If it is frustrated to some extent, in our view that would hardly be a ground for interpreting unambiguous words of the Explanation in a different manner. ( 14 ) IN view of the above discussion, we entirely agree with the reasoning of Ahmadi, J. (as he then was) in the judgment and order dated 10/08/1981. Hence there is no substance in both these petitions. ( 15 ) HENCE both these petitions are rejected. Rule discharged with costs. ( 16 ) CONSIDERING the fact that these matters were required to be argued out at different stages, the cost is quantified at Rs. 2500. 00 in each of the matters. .