TMI Blog2012 (10) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject Notification dated 13-6-2002 together with interest thereon at the rate of 12% per annum be deposited - 25290 of 2002 (TAR) c/w 25291 of 2002 (TAR) - - - Dated:- 20-1-2012 - Vikramajit Sen, C.J. and B.V. Nagarathna, JJ. REPRESENTED BY : Shri K. Shashikiran Shetty, Advocate, for the Appellant. S/Shri Kalyan Basavaraj, Addl. Solicitor General and Jeevan J. Neeralagi, Advocate, for the Respondent. [Judgment per : Vikramajit Sen, C.J.]. These writ petitions have been filed under Article 226 and 227 of the Constitution of India, and have been pending for one decade. It contains several prayers, but the ones relevant for our purposes seek the issuance of a mandamus directing that the Notification No. 38/2002-Cus. (N.T.), dated 13-6-2002 is not applicable to the imported goods consisting of 1647.414 metric tonnes of crude palmolein covered under Bill of Entry for Home Consumption dated 12-6-2002 (hereafter subject shipmen ); for an order declaring that the petitioner is not liable to pay any additional/differential duty in respect to the said shipment of crude palmolein; and that the subject Notification is effective only from 14-6-2002. On 4-7-2002, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Reliance has been placed by learned counsel for the petitioners on the Division Bench Judgment reported as Param Industries Limited v. Union of India, ILR 2002 KAR 4523 = 2002 (150) E.L.T. 3 (S.C.). In that case, the tariff value in respect of RBD Palmolein had been raised to $372 with effect from 3-8-2001. The allegation was that the Notification had not been published in the Official Gazette on 3-8-2001, but on 6-8-2001. The Court noted that 4th and 5th August were Saturday and Sunday; that the publication could only been carried on 6-8-2001 and a copy thereof could have been received by the Customs Authorities in Cochin only on 7-8-2001. It was in those circumstances that the Division Bench concluded that the new Notification would not be attracted. While so concluding to fortify their conclusion, a reference was made to the decision of the Apex Court in the case of Union of India and Others v. Ganesh Das Bhojraj, (2000) 9 SCC 461 : AIR 2000 S.C. 1102 = 2000 (116) E.L.T. 431 (S.C.). The Three Judge Bench of the Apex Court in Bhojraj had analyzed several judgments of the Apex Court including Union of India v. Apar (P) Ltd., (1999) 6 SCC 117 = 1999 (112) E.L.T. 3 (S.C.); I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form of method in which the statutory duty is leviable and any exemption granted in relation to any goods in the manner provided in this sub-section shall have effect subject to the condition that the duty of customs chargeable on such goods shall in no case exceed the statutory duty. Explanation:- Form or method , in relation to a rate of duty of customs, means the basis, namely, valuation, weight, number, length, area, volume or other measure with reference to which the duty is leviable. (4) Every Notification issued under sub-section (1) or sub-section (2A) shall - (a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette. (b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi. (5) Notwithstanding anything contained in sub-section (4), where a Notification comes into force on a date later than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reference as under : Sec. 14(2) : Notwithstanding anything contained in sub-section (1) or sub-section (1A), if the Central Government is satisfied that it is necessary or expedient so to do it may, by Notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. Explanation - For the purposes of this section - (a) rate of exchange means the rate of exchange - (i) determined by the Central Government, or (ii) ascertained in such manner as the Central Government may direct, for the conversion of Indian currency into foreign currency or foreign currency into Indian currency. (b) foreign currency and Indian currency have the meanings respectively assigned to them in clause (m) and clause (q) of Sec. 2 of the Foreign Exchange Management Act, 1999 (42 of 1999) . The Division Bench opined that since that Notification dealt with the trend values only in respect of some of the goods in contradistinction to the class of goods, it was discrim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) identical goods means imported goods - (i) which are same in all respects, including physical characteristics, quality and reputation as the goods being valued except for minor differences in appearance that do not affect the value of the goods; (ii) produced in the country in which the goods being valued where produced; and (iii) produced by the same person who produced the goods, or where no such goods are available, goods produced by a different person, but shall not include imported goods where engineering, development work, art work, design work, plan or sketch undertaken in India were completed directly or indirectly by the buyer on these imported goods free of charge or at a reduced cost for use in connection with the production and sale for export of these imported goods; (e) similar goods means imported goods - (i) which although not alike in all respects, have like characteristics and like component materials which enable them to perform the same functions and to be commercially interchangeable with the goods being valued having regard to the quality, reputation and the existence of trade mark; (ii) produced in the countr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease, crude 85% - 1505.90. - Other 85% - 15.06 1506.00 OTHER ANIMAL FATS AND OILS AND THEIR FRACTIONS, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED 85% 15.07 SOYA BEAN OIL AND ITS FRACTIONS, WHETHER OR NOT REFINED, BUT NOT CHEMCIALLY MODIFIED 1507.10 - Crude oil, whether or not degummed 85% 75% 1507.90 - Other 85% 75% 15.08 GROUND-NUT OIL AND ITS FRACTIONS, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED 1508.10 - Crude oil 85% 75% 1508.90 - Other 85% 75% 15.09 OLIVE OIL AND ITS FRACTIONS, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED 1509.10 - Virgin 85% 75% 1509.90 - Other 85% 75% 15.10 1510.00 OTHER OILS AND THEIR FRACTONS, OBTAINED SOLELY FROM OLIVES, WHETHER OR NOT REFINED, BUT NOT CHEMICALLY MODIFIED, INCLUDING BLENDS OF THESE OILS OR FRACTIONS WITH OILS OR FRACTIONS OF HEADING NO. 15.09 85% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85% 75% These commodities/products are palpably not identical or similar and therefore do not constitute a homogeneous or composite character making them to correspond to any class of imported goods with the contemplation of Section 14(2) of the Customs Act read with Rule 2 of the 2007 Rules. 9. We find ourselves totally unmoved and unpersuaded by the argument advanced by the learned counsel for the petitioner that the entire Chapter 15 deals with one single class of goods. Instead, we are of the unequivocal opinion that each of the subject heads defined in Chapter 15 i.e., 15.01 to 15.22 deals with distinct class of goods , and the sub-divisions of commodities/products entitled as cleavage products with which we are presently concerned. The tariff on goods is imposed to regulate the importation of different commodities so as to bring about a balance in prices in domestic markets. The demand of items such as Lard and animal fats is not similar to that of natural oils. Lard or pig fat will not be consumed by certain sections of the society and they may also not be palatable to persons belonging to different communities of our society. The reality is that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 would apply to the subject shipment since it was published in the Official Gazette on that date and accordingly it was efficacious from the commencement of that date itself. Thirdly, the Parliament itself is empowered to prescribe and modify from time to time, the different tariffs for each class of goods dealt with in the sundry Headings 15.01 to 15.22 of Chapter 15 of Section III of the Customs Tariff Act, 1975. 13. We are mindful of the recent decision of the Apex Court in Indian Council for Enviro-Legal Action v. Union of India, (2011) 8 SCC 161 wherein compound interest has been ordered. Their Lordships pithily pointed out that : The other aspect which has been dealt with in great detail is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the Courts must keep the following principles in view : (1) It is the bounden duty and obligation of the Court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the Court. (2) When a party applies and gets a stay or injunction from the Court, it is always at the risk and responsibility of the party applying. An order o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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