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2015 (10) TMI 2035 - GUJARAT HIGH COURT

2015 (10) TMI 2035 - GUJARAT HIGH COURT - 2015 (326) E.L.T. 250 (Guj.) - Levy of Safeguard duty Import of Patented Premium VAM Top Threaded and Coupled Connection Whether petition under Article 226 of the Constitution of India is maintainable and petitioner is entitled to the grant of any interim relief or not? - Petitioner contends that goods imported fall within excluded category of notification issued by Central Government dated 13th August, 2014 Department was of the view that the good .....

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espondents are directed to allow clearance of subject goods as and when imported subject to bank guarantee to the extent of 25% of duty that may be assessed; failing on which, will have to deposit full duty.

CBEC directed to decide the representations dated 16th December, 2014, 12th February, 2015 and 13th March, 2015 filed by the petitioner on or before 23rd October, 2015 and a copy of such decision shall be placed before this court on or before the returnable date. - Special Civil .....

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f Act read with rules 12, 14 and 17 of the Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997, (hereinafter referred to as the rules ) after considering the findings of the Director General (Safeguards) regarding injury caused to the domestic producers of Seamless Pipes and Tubes, imposed on Seamless Pipes and Tubes falling under the tariff items of the Customs Tariff Act mentioned therein, when imported into India, a safeguard duty at the rate specified in the notifica .....

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(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 h .....

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pinion of the applicants at whose instance safeguard investigation concerning import of Seamless Pipes and Tubes had been initiated. By a communication dated 9th January, 2015 of their advocates, the applicants namely, M/s. ISMT Limited and M/s. Jindal Saw Limited (the Domestic Industry) informed the Directorate General of Safeguards that the products in respect of which clarification had been sought would fall under the exclusion entries listed in the notification and have been specifically exc .....

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the petitioner before the appellate forum and the appeal had been dismissed, the CBEC has left it to the statutory authorities under the Customs Act to decide the issue. 4. It is the case of the petitioner that it has entered into a Production Sharing Contract with the Government of India pursuant to which it has been designated as Operator wherein it conducts the petroleum operations at Rajasthan block. The petitioner imports highly specialised goods viz., Patented Premium VAM Top Threaded and .....

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face umpteen litigations of the same kind. The petitioner, therefore, seeks a 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 i .....

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stoms, 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 nature of the project undertaken by the petitioner involves a large public element, it is a time-bound project and under Article 17.1 of the Production Sharing Contract, the machinery, plant, equipment, materials and suppli .....

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terms of the exclusion attached to the notification dated 13th August, 2014 and has further stated that the Board may take necessary further action in that matter. It was submitted that the authority which has recommended imposition of duty has clarified that the goods imported by the petitioner are not covered by the notification, despite which, the customs authorities have imposed levy of safeguard duty on the goods imported by the petitioner. It was argued that the levy is, therefore, withou .....

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uard duty. The question involved is whether the goods imported by the petitioner fall within the excluded categories which is not the same as being exempted from payment of duty. It was urged that this being a case of imposition of duty, the subject goods must fall clearly within the levy. 6. On the other hand, Mr. R.J. Oza, learned senior standing counsel for the respondents No.4 and 5 opposed the petition mainly on two counts. Firstly, on the ground that the petition was not maintainable as th .....

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f 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 .....

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icated the opinion of the two domestic industries and referred the matter to the Board for further action. It was submitted that the three bills of entry submitted by the petitioner have been assessed and Order-In-Original had been passed confirming levy of safeguard duty and the petitioner has failed in the appeal preferred by it before the Appellate Commissioner. It was submitted that insofar as the present bill of entry is concerned, it has been filed in respect of similar goods for which it .....

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fication as regards the notification issued by the Central Government; the petitioner has an alternative remedy under the Act to apply for reassessment and have recourse to the appellate remedy; merely because a large number of bills of entry may be filed in future is no reason not to avail of the statutory remedy and that the petitioner is required to undergo the statutory remedy prescribed under the Act. It was also submitted that no irreparable injury is caused to the petitioner as in the eve .....

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cation. The facts are admitted and the fact is that though the base pipes are of API grade, what is being imported by the petitioner is Premium Patented Joint Connectors and Threaded Tubes and Pipes. It was submitted that on the question of alternative remedy, it may be possible 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 .....

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ot 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 imported by the petitioner were .....

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Whether in the facts and circumstances of the case, this petition under Article 226 of the Constitution of India is maintainable? (ii) Whether the petitioner is entitled to the grant of any interim relief as prayed for, or otherwise? 9. As regards the maintainability of the petition, in the opinion of this court, merely because in respect of other bills of entry, the petitioner has availed of the statutory remedy provided under the Customs Act, the same would not preclude the petitioner from inv .....

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to levy safeguard duty is under challenge, it cannot be said that the petition under Article 226 of the Constitution is not maintainable. As regards the contention that the petition involves disputed questions of fact and is, therefore, beyond the pale of Article 226, as rightly submitted by the learned counsel for the petitioner, the issue involved in the present case is a pure question of law which requires interpretation of the notification issued by the Central Government and does not involv .....

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ef, 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 .....

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y be noticed that the excluded category under clause (ii) in the notification are Non-API and Patented Premium Joints/Premium Connections/Premium Threaded Pipes and Tubes of grades Q-125, 13 CR, L-80, P110, C-90, C-95, TPage 90 and T-95. It has been submitted by the learned counsel for the petitioner that certain grades mentioned in the notification are API grades and there cannot be non-API pipes of API grade. It has been submitted that what the notification seeks to exclude are non-API premium .....

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