9911796707
TMI Blog2012 (7) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and implementation of order of the Commissioner (Appeals) dated 16/9/2011 at Annexure "O" to this petition. [e]. That pending hearing and final disposal oft his Petition, this Honourable Court be pleased to restrain the respondents, their servants and agents from levying any CVD on the import of Zircon sand imported by the Petitioners. [f]. Ex-parte ad-interim relief as prayed for in terms of para [d] and [e]. [g]. This Honourable Court be pleased to grant such other and further relief/s as are deemed just and proper in the facts and circumstances of this case" 2. The case made out by the petitioners may be summed up thus: 1. The petitioner No.1 is a Company incorporated under the Companies Act and the petitioner No. 2 is a shareholder and Chairman of the petitioner No.1 -Company. 2. The petitioners are in the business of manufacturing glass frit. The principal and most expensive raw material to manufacture glass frit is Zircon. 3. Zircon as a mineral exists in natural source in sand at various places. However, this type of sand has various other minerals in it. The operators in this regard carry out a very simple process called "spiralling process" by which, this typ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... silicate content is 98.3%. 10. In the above context, the petitioners addressed a letter dated June 4, 2011 to the Deputy Commissioner of Customs and applied for a retest of the material in the said letter. 11. In order to point out the fact that the product is not a "concentrate" and that in any case, the concentrate is also an Ore and is, therefore, exempt under the relevant notification, which exempts Ore , the petitioners addressed a letter dated June 8, 2011. 12. Instead of dealing with the submissions made before the concerned authority, Bill of Entry was assessed charged CVD at 10% without passing a speaking order. 13. The petitioner, therefore, wrote another letter dated June 9, 2011 requesting for a speaking order. However, without granting any hearing or issuing a show cause notice, the Deputy Commissioner of Customs passed an Order-in-Original No. 138/DC/ ICD /2011 dated June 9, 2011 holding that the product in question is "Zircon concentrate" and, therefore, is not exempted under Notification No.4/2006-CX dated March 1, 2006. 14. With regard to the second consignment, the department addressed an e -mail to the CHA of the petitioners stating therein that as goods of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners purchase Zircon sand from IIREL as well. In the case of IREL itself, a view is taken that this product is being sold as Ore. IREL, avails of exemption under this very notification No. 4/2006, and clears the same under NIL rate of duty. 21. The primary purpose of filing this petition is to protect the present and future clearance so that the petitioners' interests would not be prejudiced till the point is settled. Though appeal lies against the order of the Commissioners (Appeals), the same is not an equally efficacious remedy as compared to this petition. Further, when a central statute is administered differently in different States, it is one of the rarest of the rare cases where this Court should interfere under Article 226 of the Constitution of India. 22. Due to the order of the Commissioner [Appeals], the existence of the petitioners in the field of business is at stake inasmuch as until the Tribunal decides the appeal, they shall be forced to pay duty when other similarly placed competitors in the same field are not required to bear this burden. This inevitable situation will wipe out the petitioners from the field of business. Hence this petition. 3. The writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1962. The Revenue has, thus, rightly assessed the Bills of Entry of the petitioners to safeguard the government revenue and followed the procedure as laid down in law. 6. The sample drawn from the consignment of the petitioners was sent to CRCL, New Delhi for re-testing. CRCL, New Delhi has reported that the samples were send to IREL, Kollam, in the State of Kerala for chemical and mineralogical analysis and the result is as under: " Physical appearance : The sample is in the form of light brown coarse powder. It is essentially composed of Zircon & Silica along with small amount of oxides of Titanium, Aluminium and Iron. Mineralogical analysis Chemical Test Report S.No. Mineral Weight % Elements Percent Composition 1 Zircon 98.6 ZrO2 65.4 2 Sillimanite 0.2 SiO2 33.4 3 Kyanite 0.3 Al203 0.59 4 Other heavy minerals 0.1 Fe203 0.06 5 Quarts 0.8 TiO2 0.13 Total 100 Sample has characteristic of Zircon concentrate. 7. Though Zirconium Ore and concentrates both fall under sub-heading 26151000 of Chapter 26 of the Customs Tariff Act, 1975, the benefit of the said notification was not available to the petitioners as it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also different other minerals. Thus, according to Mr. Parekh, the same cannot be treated as Zircon concentrate but it is Zircon Ore. According to Mr. Parikh, the findings of the concerned officer that it was Zircon Concentrate is a perverse finding of facts even based on the material on record. He, therefore, prays for passing appropriate directions to protect the interest of his clients, inasmuch as according to him, if his client is required to pay CVD and ultimately, if the petitioners succeed before the Tribunal, there will be no chance of getting back the said amount. In the process, Mr. Parikh continues, his clients will not be able to compete with other manufactures of similar products in the market from the other States who are not asked to pay the CVD . In support of his contention that a writ-application under Article 226 of the Constitution is maintainable, Mr. Parikh placed strong reliance upon a Division Bench decision of this Court in the case of AMBICA METAL YARN MFG. CO. vs. SUPERINTENDENT, CENTRAL EXCISE reported in 1982 (10) ELT 244 (Guj). 6. Mr. Ravani , the learned counsel appearing on behalf of the Revenue, has, on the other hand, strongly opposed the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the Customs officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon. Nor was there any complaint in this case that the order had been passed without an opportunity to the importer to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor-General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respondent in not moving the Government in revision by taking into account the time that had elapsed between the date of impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the rule as to a petitioner under Art. 226 having to exhaust his remedies before he approached the Court would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed. 9. We see considerable force in the argument of the learned Solicitor-General. We must, however, point out that the rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies." After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief Justice added : "It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari." In the result this Court held that the existence of their legal remedies was not per se a bar to the issue of a writ of certiorari and that the Court was not bound to relegate the petitioner to the other legal remedies available to him. 10. The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of his own" emphasizes this aspect of the rule." (Emphasis supplied by us). 10. Bearing in mind the aforesaid principles, we now propose to apply the same to the facts of the present case. 11. In the case before us, the petitioner has already filed regular appeal before the Tribunal, which is pending adjudication. Thus, it is not a case where the petitioner has accepted the decision of the Commissioner (Appeals) or allowed further appeal to the higher authority as prescribed under law to be barred by limitation. 12. The only question before us is whether during the pendency of the appeal before the Tribunal, the petitioners should be forced to pay the CVD which some other persons similarly placed with the petitioner are not required to pay by virtue of the decisions of the authority situated in a different State on interpretation of the selfsame provisions of law. 13. Under the existing law, so long the decision passed by the Commissioner (Appeals) is not set aside by the higher appellate authority, the petitioner is bound to pay the duty imposed in order to clear the imported goods. Thus, at this stage, there is no alternative remedy prescribed by law by which the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her find that a Division Bench of this court in the past allowed the petitioner to release the goods on payment of 25% of the duty and on execution of a bond to pay the assessed amount if their appeal before the Commissioner (Appeals) failed with a direction to file such an appeal within a specified time. The Revenue had accepted such decision. After the dismissal of such an appeal, since a further appeal has been filed before the Tribunal by the petitioners and there is no decision on the above point by any Tribunal of this State, we are of the view that the petitioners should be permitted to get the order of release of the similar goods during the pendency of the appeal before the Tribunal on the selfsame conditions imposed earlier by a Division Bench of this court which will abide by the decision of the Tribunal. 18. Since the appeal is pending before the Tribunal, we refrain ourselves from making any comment on the merit of the appeal. The above condition proposed by us would protect the interest of both the parties. In passing the aforesaid direction, we are fortified by the following observations of M. P. Thakkar CJ (as His Lordship then was) in the case of Ambica Metal Yarn ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
