9911796707
TMI Blog2015 (10) TMI 2035X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. The note below the notification says that for the purpose of that notification, Seamless Pipes and Tubes does not include - (i) Seamless alloy-steel pipes, tubes and hollow profiles of specification ASTM A213/ASME SA 213 and ASTM A335 /ASME SA 335 or equivalent BIS/DIN/BS/EN or any other equivalent specifications; (ii) Non API and Patented Premium Joints/Premium Connections/Premium Threaded Tubes and Pipes of grades Q-125, 13CR, L-80, P110, C-90, C-95, T-90 and T- 95; (iii) All 13 Chromium (13CR) Grades Tubes and Pipes not included in item (ii) above; and (iv) Drill Collars It is the case of the petitioner that the goods imported by it fall within the excluded categories namely, category (ii) above. The customs authorities, however, are of the view that the goods imported by the petitioner do not fall within any of the excluded categories and accordingly, in respect of three bills of entry submitted by the petitioner prior to the filing of the petition, passed Order-In-Original holding that the subject goods are amenable to safeguard duty. The appeal preferred by the petitioner against the Order-In-Original has been dismissed by the Appellate Commissioner and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declaration that the subject goods, including the goods under the bill of entry in question, fall within the exclusion of the definition of Seamless Pipes and Tubes in the notification on which safeguard duty is not imposable, as well as a direction to the respondent No.3 - CBEC to act upon the clarification/letter dated 15th January, 2015 issued by the respondent No.2 - Directorate General of Safeguards and instruct its officers not to collect any safeguard duty on the import of the subject goods including the bill of entry goods and issue a clarification in relation to the same. The petitioner also seeks a direction to the respondents to forbear from charging any safeguard duty upon import of the subject goods including import of goods vide Bill of Entry dated 19th June, 2015. The petitioner has also prayed that Bill of Entry No.9629824 dated 19th June, 2015 duly assessed by the Assistant Commissioner of Customs, Kandla be quashed and set aside and further seeks a direction to the respondent No.3 to decide the representation dated 16th December, 2014 filed by the petitioner expeditiously. 5. Mr. Mihir Joshi, senior advocate, learned counsel for the petitioner submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It was argued that the petition had been filed in the context of applicability of clause (ii) of the exclusion clause contained in the notification imposing safeguard duty which is primarily a question of fact which ought not to be adjudicated in a writ petition under Article 226 of the Constitution of India. In support of such contention, the learned counsel placed reliance upon the decision of the Supreme Court in the case of State of Goa v. Leukoplast (India) Limited, 1997 (92) E.L.T. 19 (S.C.) as well as the decision of the Madras High Court in the case of Karur District Dyeing and Bleaching Factory Owners' Association v. Assessing Officer, Textile Committee, 2009 (13) S.T.R. 317 (Madras). Secondly, on the question of grant of interim relief, it was submitted that no prima facie case has been made out by the petitioner. Reference was made to the scheme of the rules to point out that the Directorate General of Safeguards can, after giving its final finding on investigation, review the need of imposition of safeguard duty under rule 18 of the rules and that it has no power to issue any clarification as sought for by the petitioner. Referring to the communication dated 15th Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible to take a very narrow view but the facts justify exercise of jurisdiction under Article 226 of the Constitution. Referring to the reliefs prayed for in the petition, it was submitted that such reliefs can be granted only by the High Court in exercise of powers under Article 226 and cannot be subject matter of alternative remedy. It was urged that in respect of individual bills of entry recourse to the alternative remedy would be futile as the appellate authority has already decided against the petitioner. Besides, there is no cause for bifurcation of the prayers qua part of the reliefs. Referring to the affidavit-in-reply filed on behalf of the Directorate General of Safeguards, it was pointed out that he has not refuted the contention raised by the petitioner as regards the goods imported by the petitioner falling within the excluded categories. As regards the powers of the Directorate General of Safeguards, reference was made to rule 4(2) of the rules to submit that it is well within the power of the Directorate General to identify the article liable for safeguard duty. Referring to the letter dated 15th January, 2015, it was submitted that it is clear that the goods impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel waives service of notice of rule on behalf of the respondents No.4 and 5. 11. On the question of grant of interim relief, from the facts delineated hereinabove, it is clear that the safeguard duty has been imposed to allay the concerns of the domestic industries. After due investigation, the Directorate General of Safeguards has submitted his recommendation which excludes certain categories of goods from the ambit of the notification. On the representation made by the petitioner, the Directorate General of Safeguards has obtained the opinion of the domestic industries, more particularly, the two parties who had filed the application for initiation of safeguard investigation. Both the parties have responded by a common communication dated 9th January, 2015 of their advocate, addressed to the Directorate General of Safeguards, informing him that the products specified thereunder (which include products of the description imported by the petitioner) have been specifically excluded from the scope of the product under investigation vide the exclusion entries mentioned against the product description. It may be noticed that the excluded category under clause (ii) in the not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
