TMI Blog2012 (7) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... this court which will abide by the decision of the Tribunal - direction to Tribunal to dispose of the appeal pending within a period of three months from date of Order. - Special Civil Application No.18459 of 2011 - - - Dated:- 11-4-2012 - Bhaskar Bhattacharya, J B Pardiwala, JJ. For Appellant: Mr Devan Parikh, Sr Counsel Mr Nirav P Shah For Respondent: Mr Y N Ravani, Adv. JUDGEMENT Per: Bhaskar Bhattacharya: By this Special Civil Application, the petitioners have prayed for the following relief: [a]. This Honourable Court may be pleased to declare that the imports made by the Petitioners are eligible to exemption under notification No.4/2006 and are not subject to CVD. [b]. That this Honourable Court may be pleased to direct that the petitioners be permitted to clear their zircon sand without payment of CVD till the Honourable Tribunal disposes of their appeal. [c]. In the alternative, this Honourable Court be pleased to quash and set aside the order dated 16/9/2011 passed by the learned Commissioner (Appeals) at Annexure O to the petition. [d]. That pending hearing and final disposal of this petition, this Honourable Court be pleased to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se duty on ores, Zircon-sand was being cleared for years on end by the entire industry without payment of CVD. 7. In the normal course of business, the petitioners sought to import various consignments of Zircon sand from Iluka Resources Limited, Australia . The petitioners imported three different consignments. The first consignment was of 78.420 MT of Zircon Sand, which was entered under Bill of Entry No. 3460449 dated May 10, 2011 at ICD Sabarmati, Ahmedabad. The petitioners also imported one more consignment of 104.64 M. Tons of same material which has been entered under Bill of Entry No. 3744416 dated April 19, 2011. 8. With regard to the first consignment under Bill of Entry No. 3460449 dated May 10, 2011, the samples were drawn on May 26, 2011. In the test report of the samples, a strange view was sought to be taken that Zircon content is 98.3% and the product thereof is Zircon concentrate. 9. The petitioners had received the certificate of analysis along with the material, which shows Zircon content was only 66.2% whereas Silicon content was 32.3%. The same is consistent with the test report. However, the department has added up Zircon Dioxide and Silicon to arrive at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of this Court allowed the petitioner to clear Zircon Ore imported by them upon furnishing Bank Guarantee of 25% of the duty claimed and further furnishing a personal bond for the rest of the amount. The said Division Bench imposed a further condition that the petitioners should file an appeal before the Commissioner [Appeals] within two week with a further direction that the said arrangements should continue until the Commissioner [Appeals] decided the issue in question. In the appeal so preferred by the petitioners, as mentioned above, the Commissioner [Appeals] has passed an order against the petitioners. The petitioners, therefore, have, preferred an appeal before the CESTAT against the said order of the Commissioner (Appeals). 19. CESTAT will not be in a position to deal with the future clearance of the consignments imported during the pendency of the appeal, and, therefore, the petitioners have preferred the present writ-application praying for passing necessary orders as by the action of the respondents, the petitioners are unable to run their business if they are asked to pay CVD as demanded. 20. IREL, which is a Government of India Undertaking, is also m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the year 2011 with regard to goods falling under Chapter 26 of Central Excise Tariff Act. In the Union Budget of the year 2011, in Chapter 26 of the Central Excise Tariff Act, the Government of India has inserted Chapter Note 4, which says, in relation to product of this chapter, the process of converting ores into concentrate shall amount to manufacture . Thus, Zircon concentrate are now excisable and would attract CVD on import of concentrate. The item, Zircon Sand is also falling under sub-heading 26151000 of Chapter 26 of the Customs Tariff Act, 1975 and thus, new provision of law is applicable to the goods imported by the petitioners with no exception. 4. To give natural justice to the petitioners and to ascertain as to whether the goods imported by the petitioners is Zircon Ore or Zircon Concentrate, representative samples were drawn and sent to Central Excise Customs Laboratory, Vadodara for testing purpose. The Chemical Examiner, Central Excise Customs Laboratory, Vadodara has reported that the imported goods are: Zircon concentrate . 5. The Revenue has assessed the Bill of Entry based on the chemical test report charging CVD and issued a speaking order as prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be dismissed. 4. Subsequently, the respondent Nos.2 and 3 filed an additional affidavit-in-reply and the statements made therein may be summed up thus: 1. The adjudicating authority has sent the samples to Chemical Examiner of Central Excise and Customs Laboratory at Vadodara by way of test memo No. 2682 dated May 26, 2011 with a specific test query. The Chemical Examiner of Central Excise and Customs Laboratory, Vadodara had given a report dated May 31, 2011 and in the specific reply to the query, it had been clearly opined that it is Zircon Concentrate . 2. In view of the request made by five different importers, the sample was again sent to the Office of the Central Revenue Control Laboratory, New Delhi for its re-testing of the samples. On September 23, 2011, the report was sent to all the five importers separately. 3. The issue of classification is always a mixed question of facts and law. The Department has decided the issue on the basis of report of Chemical Examiners' Laboratory. Therefore, such disputed questions of facts may not be entertained by way of the present writ-petition. The writ-application is, therefore, liable to dismissed. 5. Mr. Parikh, learned Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose to deal with the question whether this court in exercise of writ-jurisdiction should entertain this application where the petitioners, the importers, have prayed for interim relief of clearance of the goods without payment of CVD until the adjudication of dispute before the Tribunal below. 9. The question came up for consideration before a constitutional bench of the Supreme Court in the case of A. V. VENKATESWARAN , COLLECTOR OF CUSTOMS, BOMBAY V. RAMCHAND SOBHRAJ WADHWANI AND ANOTHER reported in AIR 1961 SC 1506 where the bench made the following observations: 8 The only point, therefore requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned Solicitor-General was that the existence of an alternative remedy was a bar to the entertainment of a petition under Art. 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned or (2) where the order prejudicial to the writ petitioner has been passed in viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the jurisdiction of the Court to issue a writ; but as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 SC 163, 'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs.' Vide also K. S. Rashid and Sons v. The Income-tax Investigation Commission, AIR 1954 SC 207. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds therefor." There is no difference between the above and the formulation by Das, C. J., in State of Uttar Pradesh v. Mohammad Nooh , 1958 SCR 595 at pp. 605- 607: (AIR 1958 SC 86 at p. 93), where he observed : ".................. It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C. J. that the order of the Assistant Collector of Customs in assessing duty at 78 3/4 per cent. or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of placing the resulting order beyond their jurisdiction. Secondly, as we have already indicated, we must express our dissent form the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to exhaust his statutory remedies before invoking the jurisdiction of the High Court under Art. 226 of the Constitution. If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the Court deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional burden to the customers. In other words, the petitioner is required to run its business in a disadvantageous situation by selling its product at a comparable lower profit than the one earned by the other competitors in the field who will clear the same goods from other ports not situated in this State without payment of the CVD. 15. In such a situation, in our opinion, it is really not a case of existence of alternative statutory remedy but is one where a citizen is complaining violation of Articles 14 and 19 of the Constitution of India at the instance of a State within the meaning of Article 12 of the Constitution of India by alleging unequal treatment by a State towards him in the field of procuring imported materials for running a business based on different interpretation of selfsame salutatory provision enacted by the Parliament than the one made by the same authority in the ports in India situated in a different State. 16. In the case before us, there is no dispute that until recent past, the Revenue treated the goods in question as ore . It further appears from record that IREAL, another importer of the selfsame article, is not paying any CVD and the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
