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2015 (12) TMI 1390 - BOMBAY HIGH COURT

2015 (12) TMI 1390 - BOMBAY HIGH COURT - TMI - Goods imported against advance authorization scheme - claim of exemption towards (1) whole of the Customs Duty leviable thereon; (2) whole of the Additional Duty under section 3 of the CTA, 1975; (3) Anti- Dumping Duty under section 9A of the CTA, 1975; and (4) Safeguard Duty under section 8B of the CTA, 1975 subject to the terms and conditions set out in the said Notification. - Notification No.96/2009-Cus. dated 11th September, 2009 - Held that:- .....

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8C of the CTA, 1975. Notification No.96/2009-Cus. dated 11th September, 2009 only granted exemption from payment of Safeguard Duty imposed under section 8B. This being the case, we, in our jurisdiction under Article 226 of the Constitution of India, cannot direct the Government to grant an exemption that was never granted earlier. No person has a vested right in the grant of an exemption. An exemption by its very nature is a freedom from an obligation which the exemptee is otherwise liable to di .....

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the period of its grant. - Even if the Petitioner is called upon to pay the Safeguard Duty levied under section 8C on Carbon Black imported by it from the People s Republic of China, no prejudice would be caused to the Petitioner because the Petitioner could always claim a drawback of the same on establishing that the very same product imported on payment of Safeguard Duty was ultimately used in the manufacture of final products that were exported out of India. In fact, to be fair to the Res .....

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y be imported from any country. On the other hand, the Transitional Product Specific Safeguard Duty under section 8C is not only article specific but also country specific. In other words, the Safeguard Duty imposed under section 8C is on a particular article specifically imported only from the People s Republic of China. There is therefore a clear distinction between the Safeguard Duty imposed under section 8B and under section 8C. The two sections operate in a totally different fields and are .....

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s of the same genus. - It is not as if the payment of Transitional Product Specific Safeguard Duty imposed under Section 8C was exempted under the Notification No.96/2009-Cus. dated 11st September, 2009 and the same was thereafter retracted without any justification. As stated earlier, this exemption was never granted by the Government. In fact, it is the case of the Petitioner that by not granting this exemption the Government has committed an error or mistake. A party can never have a ves .....

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y and another for the purpose of imposing or not imposing the tax. As stated earlier, in the present case, any Transitional Product Specific Safeguard Duty imposed under section 8C of the CTA, 1975 was never exempted under Notification No.96/2009- Cus. dated 11th September, 2009. It is not as if the exemption was initially granted and was thereafter withdrawn without any justification. In the case before us, the Petitioner seeks a mandamus, which in effect, would be to direct the Government to g .....

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d were used in the manufacture of final products that were exported out of India. Keeping in tune with this Foreign Trade Policy, a Notification was issued on 1st April, 2015 whereby apart from the Safeguard Duty imposed under section 8B, Transitional Product Specific Safeguard Duty imposed under section 8C was also exempted. It is in this light that we have come to the conclusion that there was no conflict between the Foreign Trade Policies framed by the Government of India from time to time an .....

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e Foreign Trade Policy 2015-2020. - no merit in this Writ Petition - Decided against assessee. - Writ Petition No. 37 of 2014 - 2016 (334) E.L.T. 440 (Bom.) - Dated:- 23-12-2015 - S. C. Dharmadhikari And B. P. Colabawalla, JJ. For the Appellant : Mr V. Sridharan, Sr. Counsel with Mr Prakash Shah, Mr Jas Sanghavi, Ms Sarah Maay Mathew and Ms Shilpi For the Respondent : Mr Pradeep S. Jetly JUDGMENT [ Per B. P. Colabawalla J. ] 1. Rule. Respondents waive service. By consent of parties, rule made re .....

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e opening portion of the said Notification. As a consequence, relief is also sought to quash and set aside the Show Cause Notice dated 3rd October, 2013 issued by Respondent No.3 herein. 3. In a nutshell, it is the case of the Petitioner that vide Notification No.96/2009-Cus. dated 11th September 2009, goods imported into India against Advanced Authorization issued in terms of paragraph 4.1.3 of the Foreign Trade Policy, are exempted from (1) whole of the Customs Duty leviable thereon; (2) whole .....

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of the Safeguard Duty imposed under section 8B as well as under section 8C is one and the same and there is no intelligible differentia for granting exemption from one and denying exemption from the other. It is in these circumstances that the reliefs and in the nature set out above, have been sought in this Writ Petition. 4. The brief facts to decide the present controversy are that the Petitioner is a Public Limited Company engaged in manufacturing Pneumatic Tyres mainly used for special appl .....

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cific Safeguard Duty under section 8C of the CTA, 1975. Respondent No.1 is the Union of India through the Ministry of Law and Justice. Respondent No.2 is the Union of India through the Ministry of Finance, Department of Revenue. Respondent No.3 is the Officer of Respondent No.2 discharging his duties under the Customs Act, 1962 and is the officer who has issued the impugned Show Cause Notice dated 3rd October, 2013. 5. It is the case of the Petitioner that it has been importing Carbon Black into .....

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ation No.96/2009-Cus. did not specifically exempt import of goods from payment of Transitional Product Specific Safeguard Duty levied under section 8C of the CTA 1975, Carbon Black imported by the Petitioner from the People s Republic of China was allowed to be cleared by the authorities under the said Notification without the payment of any Safeguard Duty. Accordingly, the Petitioner was importing Carbon Black from the People s Republic of China without payment of customs duties including Anti- .....

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roduct Specific Safeguard Duty levied under section 8C of the CTA 1975, it appears that the Revenue is now taking a stand that the exemption in terms of Notification No.96/2009-Cus. is not available for Safeguard Duty imposed under section 8C of the said Act. According to the Revenue, exemption in terms of the said Notification is available only to Basic Customs Duty, Additional Duties of Customs, Special Additional Duties of Customs, Anti-dumping Duty levied under section 9A and Safeguard Duty .....

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e said Notification in respect of imports of Carbon Black made in the past from the People s Republic of China. 8. Being aggrieved by the aforesaid stand of the Revenue, the Petitioner is before us in our writ jurisdiction under Article 226 of the Constitution of India seeking the reliefs, and in the nature as set out earlier in the judgment. 9. In this factual background, Mr Sridharan, learned Senior Counsel appearing on behalf of the Petitioner, submitted that Safeguard Duty levied under secti .....

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ke Anti-dumping Duty which is country specific. He submitted that initially based on the WTO agreement on safeguards, India, w.e.f. 14th May, 1997, enacted the provisions relating to Safeguard Duty on products imported into India in terms of section 8B of the CTA, 1975. It was the submission of Mr Sridharan that section 8B is the general provision in terms of which the Central Government has the power to impose Safeguard Duty on any article, as specified, imported into India, if the import of th .....

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ds imported from any country across the world including China. Under section 8C, Safeguard Duty is imposable only on those specified goods imported from China. The logic behind levying Safeguard Duty is to give time to the domestic producers to adjust to international competition, particularly when there is an increase in the quantity of imports into India of a particular product. Mr Sridharan submitted that the amount of Safeguard Duty that is imposed on any specified product does not exceed th .....

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r Sridharan submitted that imposing duties under sections 8B, 8C and/or 9A of the CTA, 1975 ensures that the domestic industry in India is protected. However, such imposition has the effect of prejudicially affecting the user industry. For example, manufacturers of pistons in India would be the domestic industry and manufacturers of engines using those pistons would be the user industry. If Safeguard Duties are imposed on imports of pistons, it protects the piston manufacturers in India but prej .....

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would submit that however when it comes to export of goods manufactured in India, the Government of India has carved out an exception to the aforesaid principle and prefers the user industry over the domestic industry. It is in this light that exemptions are granted, and in the nature set out in the Notification No.96/2009-Cus. This Notification grants exemption to goods imported into India against Advance Authorisation from payment of Anti-dumping Duty and Safeguard Duty, amongst others, under .....

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ed into India, when used in the manufacture of final products exported out of India, are exempted from payment of customs duties including Safeguard Duty as well as Anti-dumping Duty. In this regard, Mr Sridharan placed reliance on the Export Import Policy 1997-2002, Export Import Policy 2002-2007, Foreign Trade Policy 2004-2009, Foreign Trade Policy 2009-2014 and Foreign Trade Policy 2015-2020. Mr Sridharan, relying upon the aforesaid Policies submitted that it was clearly the intention of the .....

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try of Finance issued Notifications from time to time. Notification No.96/2009-Cus. dated 11th September, 2009 was one such Notification that was issued to implement this Policy. Mr Sridharan would submit that despite the Foreign Trade Policy taking within its sweep exemption of Safeguard Duty, the Notification issued to implement the said Policy only exempted Safeguard Duty imposed under section 8B of the CTA, 1975. Looking to the Foreign Trade Policies of the Government and the object sought t .....

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e CTA, 1975. If this be the case and Notification No.96/2009-Cus. being issued to give effect to the said Policy, the same was clearly at variance with the Foreign Trade Policy as it sought to grant exemption from payment of Safeguard Duty imposed under section 8B whereas it sought to deny the exemption from payment of Safeguard Duty imposed under section 8C of the CTA, 1975. 14. Mr Sridharan would additionally submit that the Government, under Notification No.96/2009-Cus. dated 11th September 2 .....

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d under sections 8B and 8C) was one and the same and that is to ensure that Safeguard Duty is imposed when any article is imported into India in such increased quantities and under such conditions so as to cause or threaten to cause serious injury to the domestic industry. The only difference was that whilst Safeguard Duty imposed under section 8B was on any article imported from any country in the world, Safeguard Duty imposed under section 8C was on any article that was specifically imported f .....

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am and Sons, 2015 (322) E.L.T. 353 (S.C.) (ii) Budhan Choudhry v. State of Bihar; AIR 1955 SC 191 : (1955) 1 SCR 1045 (iii) Ram Krishna Dalmia v. Justice S.R. Tendolkar; AIR 1958 SC 538 : 1959 SCR 279 (iv) Indian Express Newspapers v. Union of India; (1985) 1 SCC 641 (v) State of U.P. v. Deepak Fertilizers & Petrochemical Corpn. Ltd.; (2007) 10 SCC 242 (vi) State of Bihar v. Suprabhat Steel Ltd.; (1999) 1 SCC 31 : 1999 (112) STC 258 and (vii) State of U.P. v. Renusagar Power Co. (1988) 4 SCC .....

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is also exempted / covered by Notification No.96/2009-Cus. dated 11th September, 2009. 16. On the other hand, Mr Jetly, learned counsel appearing on behalf of the Revenue, submitted that Carbon Black imported by the Petitioner from China are admittedly subjected to a Safeguard Duty under section 8C of the CTA, 1975. In this regard, Mr Jetly brought to our attention Notification No.4/2012-Cus.(S.G.) dated 5th October, 2012 in which it is stated that in the matter of import of Carbon Black (for ru .....

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Carbon Black as more particularly set out in the said Notification. Mr Jetly would submit that there is a distinction between the provisions of sections 8B and 8C inasmuch as section 8B applies to imports of specified products from any country whereas section 8C only deals with imports of specified products from the People s Republic of China. In fact, section 8C starts with a non-obstante clause and stipulates that notwithstanding anything contained in section 8B, if the Central Government, af .....

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granted from payment of duty imposed under section 8B, will not automatically also mean that an exemption ought to be granted from payment of duty imposed under section 8C. In the present case, Mr Jetly would submit that admittedly Notification No.96/2009-Cus. does not exempt goods imported under Advance Authorisation from payment of Safeguard Duty levied under section 8C. He would submit that section 8C was introduced on the statutebook with effect from 11th May, 2002. The Legislature, in its w .....

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rbitrary or capricious, no interference is called for in writ jurisdiction. 17. In addition thereto, Mr Jetly submitted that it is now settled law that whether to grant an exemption or not is entirely at the discretion of the Government and there is no vested right in any citizen to claim an exemption. If the Legislature in its wisdom and after taking into consideration all the relevant factors, chose to exempt a particular product from the imposition of duties whilst deciding not to grant an ex .....

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came for the first time in the Foreign Trade Policy 2015-2020. Mr Jetly was at pains to point out the difference in the language used in the Foreign Trade Policy 2009-2014 and the Foreign Trade Policy 2015-2020. Mr Jetly would therefore submit that for the first time in the Foreign Trade Policy 2015-2020, the Government decided to exempt imposition of Safeguard Duty against Advance Authorisation on goods imported into India under section 8C. To implement this Policy, the Government has issued No .....

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ct to the terms and conditions set out in the said Notification. Mr Jetly submitted that looking to the Foreign Trade Policy 2015-2020 alongwith the aforesaid Notification No.21/2015-Cus., it was clear that there was a shift in policy of the Government to even exempt goods imported into India from Safeguard Duty imposed under section 8C. There was no mistake or omission on the part of the Government not to include section 8C in Notification No. 96/2009-Cus. and this was a deliberate act of the G .....

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under the provisions of sections 74 and/or 75 of the Customs Act, 1962. In other words, Mr Jetly submitted that no prejudice is caused to the Petitioner inasmuch as the Petitioner would be entitled to a refund / drawback to the extent of Safeguard Duty paid under section 8C provided they are able to establish that the goods imported by them were used in the manufacture of final products that were eventually exported. Looking to all these factors, Mr Jetly would submit that there is no merit in .....

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for granting exemption from payment of Safeguard Duty imposed under section 8B whilst denying the exemption from payment of Safeguard Duty imposed under section 8C of the CTA, 1975. It is common ground before us that it has been the policy of the Government of India that as far as goods which are exported out of India are concerned, it is only the goods that are to be exported and not the taxes on the said goods. This is done in order to provide a level playing field to the goods manufactured in .....

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enable registered exporters to obtain inputs at international competitive prices and to ensure that the exported products are free from the incidence of taxation. Thus, under the said Scheme and subject to its terms and conditions, it is possible for a manufacturer to procure inputs without the payment of customs duty provided the said inputs are used in the manufacture of the product exported out of India. Alternatively, it is also open to the manufacturers to import raw materials upon payment .....

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Basic Customs Duty (BCD) in terms of section 12 of the Customs Act, 1962 at such rates as may be specified under the first schedule to the Customs Tariff Act, 1975 or any other law for the time being in force; (b) Additional Duties of Customs (otherwise referred to as CVD) in terms of section 3(1) of the Customs Tariff Act, 1975 which is equal to the duty of excise leviable on like goods manufactured in India; (c) Special Additional Duty of Customs (otherwise referred to as SAD) in terms of Sect .....

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d Duty leviable on goods imported into India in terms of Section 8B of the Customs Tariff Act, 1975; (c) Transitional Product Specific Safeguard Duty leviable on goods imported into India in terms of section 8C of the Customs Tariff Act, 1975. 22. Anti-dumping Duty is leviable on goods imported into India in terms of section 9A upon a conclusion of the investigation that the specified product imported into India from the specified country is being dumped into India. Anti-dumping duty is a measur .....

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form of temporary relief used when imports of a particular product, as a result of tariff concessions or other WTO obligations undertaken by the importing country, increase unexpectedly to a point that they cause or threaten to cause serious injury to domestic producers of the like or directly competitive products. The objective behind safeguards is to give domestic producers a period of grace to become more competitive vis-a-vis the imports. In India, Safeguard Duty is imposable on specified p .....

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8B is article specific. Section 8B was brought into effect from 14th May, 1997 vide section 79 of the Finance Act, 1997 and reads as under:- "Section 8B. Power of Central Government to impose safeguard duty - (1) If the Central Government, after conducting such enquiry as it deems fit, is satisfied that any article is imported into India in such increased quantities and under such conditions so as to cause or threatening to cause serious injury to domestic industry, then, it may, by notifi .....

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ne per cent of the total imports of that article into India; Provided further that the Central Government may, by notification in the Official Gazette, exempt such quantity of any article as it may specify in the notification, when imported from any country or territory into India, from payment of the whole or part of the safeguard duty leviable thereon; (2) The Central Government may, pending the determination under sub-section (1), impose a provisional safeguard duty under this sub-section on .....

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was imposed. (2A) Notwithstanding anything contained in sub-section (1) and sub-section (2), a notification issued under sub-section (1) or any safeguard duty imposed under sub-section (2), unless specifically made applicable in such notification or such imposition, as the case may be, shall not apply to articles imported by a hundred per cent export-oriented undertaking or a unit in a free trade zone or in a special economic zone. Explanation - For the purposes of this section, the expressions .....

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ct on the expiry of four years from the date of such imposition; Provided that if the Central Government is of the opinion that the domestic industry has taken measures to adjust to such injury or threat thereof and it is necessary that the safeguard duty should continue to be imposed, it may extend the period of such imposition; Provided further that in no case the safeguard duty shall continue to be imposed beyond a period of ten years from the date on which such duty was first imposed. (4A) T .....

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without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for safeguard duty may be identified and for the manner in which the causes of serious injury or causes of threat of serious injury in relation to such articles may be determined and for the assessment and collection of such safeguard duty. (6) For the purposes of this section - (a) "developing country" means a country notified by the Central Government in the Official G .....

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ious injury" means a clear and imminent danger of serious injury. (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament." 23. On a plain reading of section 8B, it is clear that if the Central Government, after conducting such inquiry as it deems fit is satisfied that any article imported into India in such increased quantities so as to cause or threaten to cause serious injury to the domestic industry, then .....

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ol was approved by the members of the WTO marking its entry into the Organisation. Section 16 of the Chinese Accession Protocol provided for the imposition of Transitional Product Specific Safeguard Duty on specified goods of Chinese origin imported from the People s Republic of China. It was pursuant to the said Accession of China into the WTO that India inserted section 8C in the CTA, 1975 in the year 2002. Section 8C of the CTA, 1975 reads thus:- "Section 8C. Power of Central Government .....

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e Official Gazette, impose a safeguard duty on that article; Provided that the Central Government may, by notification in the Official Gazette, exempt such quantity of any article as it may specify in the notification, when imported from the People's Republic of China into India, from payment of the whole or part of the safeguard duty leviable thereon. (2) The Central Government may, pending the determination under sub-section (1), impose a provisional safeguard duty under the sub-section on .....

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ich it was imposed. (3) Notwithstanding anything contained in sub-sections (1) and (2), a notification issued under sub-section (1) or any safeguard duty imposed under sub-section (2), unless specifically made applicable in such notification or such imposition, as the case may be, shall not apply to articles imported by a hundred per cent exportoriented undertaking or a unit in a free trade zone or in a special economic zone. Explanation - For the purposes of this section, the expressions " .....

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to have effect on the expiry of four years from the date of such imposition; Provided that if the Central Government is of the opinion that such article continues to be imported into India from the People's Republic of China so as to cause or threatening to cause market disruption to domestic industry, the Central Government may, notwithstanding the measures taken by the domestic industry towards adjustment to such market disruption or any threat arising thereof, if considers necessary that .....

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able under this section as they apply in relation to duties leviable under that Act; (6) The Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for safeguard duty may be identified and for the manner in which the causes of market disruption or causes of threat of market disruption in relation to such articles may be de .....

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or a directly competitive article produced by the domestic industry, increase rapidly, either absolutely or relatively, so as to be a significant cause of material injury, or threat of material injury to the domestic industry; (c) "threat of market disruption" means a clear and imminent danger of market disruption. (8) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament)." 25. Section 8C on the other ha .....

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er section 8C therefore is the Safeguard Duty imposed on any article that is imported specifically from the People s Republic of China. As the section itself suggests, the duty imposed under section 8C is a Transitional Product Specific Safeguard Duty on imports from the People s Republic of China. In other words, the Safeguard Duty imposed under section 8C is only with reference to articles that are imported into India from the People s Republic of China. For imposing Safeguard Duty on any arti .....

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es and under such conditions so as to cause or threatening to cause a market disruption to domestic industry. This would clearly show that different parameters are applied whilst imposing Safeguard Duty under the two sections. 26. Having noted these distinctions, we shall now deal with the arguments advanced by Mr Sridharan, learned Senior Counsel appearing on behalf of the Petitioner. It was the submission of Mr Sridharan that it was the consistent Foreign Trade Policy of the Government of Indi .....

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tered with excise authorities, except for products which are not excisable for which no such registration is required, shall be entitled for Annual Advance Licence Export House, Trading House, Star Trading Houses and Super Star Trading Houses holding the certificate as merchant exporter where they agree to the endorsement of the name(s) of the supporting manufacturer(s) on the relevant annual advance licence shall also be entitled for the annual advance licence. The Annual Advance Licence and/or .....

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umping Duty, safeguard duty, if any, in addition to basic customs duty and surcharge thereon. The above scheme shall come into operation from 1st July 1999." 27. Paragraph 7.4A inter alia stipulates that imports against Annual Advance Licence shall be exempted from payment of Additional Customs Duty, Special Additional Duty, Anti-dumping Duty, Safeguard Duty, if any, in addition to the Basic Customs Duty and surcharge thereon. This was brought into operation with effect from 1st July 1999. .....

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to actual user condition. Such licences (other than Advance Licence for deemed exports) are exempted from payment of basic customs duty, additional customs duty, anti dumping duty and safeguard duty, if any. However, Advance Licence for deemed export shall be exempted from basic customs duty and additional customs duty only." 29. The Foreign Trade Policy 2004-2009 also exempts payment of Basic Customs Duty, Additional Customs Duty, Antidumping Duty and Safeguard Duty, if any, for import of .....

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y, if any. Advance Licence for deemed export shall be exempted from basic customs duty, additional customs duty and education cess only. However in case of supplies to EOU/EHTP/STP/BTP under such licences, anti-dumping duty and safeguard duty shall also be exempted." 30. Similar is the provison in Foreign Trade Policy 2009- 2014 (September 2009 Edition). Paragraph 4.1.4 thereof reads thus:- "4.1.4. Advance Authorisations are exempted from payment of basic customs duty, additional custo .....

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yment of Basic Customs Duty, Additional Customs Duty, Education Cess, Anti-dumping Duty, Safeguard Duty and Transition Product Specific Safeguard Duty, wherever applicable. However, Import against supplies covered under paragraph 7.02(c), (d) and (g) of FTP will not be exempted from payment of applicable Antidumping Duty, Safeguard Duty and Transition Product Specific Safeguard Duty, if any." (emphasis supplied) 32. As can be seen from the said reproduction, in the Foreign Trade Policy 2015 .....

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nder Advance Authorisation would be exempted from payment of Basic Customs Duty, Additional Customs Duty, Education Cess, Anti-dumping Duty under section 9A of the CTA 1975, Safeguard Duty under section 8B of the CTA, 1975 and Transitional Product Specific Safeguard Duty imposed under section 8C of the CTA, 1975. 33. It is pertinent to note that section 8C was brought on the statute-book with effect from 11th May 2002, and yet all the Notifications issued by the Government thereafter only exempt .....

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from payment of Safeguard Duty imposed under section 8C. We have come to this conclusion because we are clear that even the Foreign Trade Policies upto and including the Foreign Trade Policy 2009-2014 did not contemplate exemption from payment of Transitional Product Specific Safeguard Duty under section 8C of the CTA, 1975. That exemption came for the first time in the Foreign Trade Policy 2015- 2020. In fact, keeping in line with this new Policy, the Government issued Notification No.21/2015-C .....

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ure 'G' to the Petition) issued by the Tax Research Unit (TRU) [a wing of the Ministry of Finance, Department of Revenue], to contend that even the Government was of the view that all Safeguard Duties ought to be exempted for imports cleared under Advance Authorisation, irrespective of whether the Safeguard Duties were imposed / levied under sections 8B or 8C of the CTA, 1975. It is true that the aforesaid Office Memorandum would suggest that the TRU was of the opinion that when goods we .....

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istinction between the Foreign Trade Policies upto and including the Foreign Trade Policy 2009-2014 on the one hand and the Foreign Trade Policy 2015-2020 on the other. Despite the fact that section 8C (which empowers the Government to impose a Transitional Product Specific Safeguard Duty on imports from the People s Republic of China) was brought into effect from 11th May 2002, we do not find a reference being made to the same in any of the Foreign Trade Policies prior to the Foreign Trade Poli .....

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mported from the People s Republic of China. Despite the aforesaid representation, the Government in its wisdom chose not to issue any corrigendum or amend the aforesaid Notification. This clearly spells out the intention of the Government in not exempting the Transitional Product Specific Safeguard Duty imposed under section 8C on import of goods from the People s Republic of China. We must mention here that it is well settled that though Legislative measures dealing with economic regulations a .....

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on is given to the Legislature in the matter of its preferences of economic and social policies and to effectuate the chosen system in all possible and reasonable ways. This settled position has been very succinctly set out by the Supreme Court in the case of P.H. Ashwathanarayana Setty v/s State of Karnataka. 1989 Supp (1) SCC 696 The Supreme Court, speaking through M.N. VENKATACHALIAH J, summarized as under:- "79. The problem is, indeed, a complex one not free from its own peculiar diffic .....

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licy it should pursue and what discriminations advance those social and economic policies. In view of the inherent complexity of these fiscal adjustments, courts give a larger discretion to the legislature in the matter of its preferences of economic and social policies and effectuate the chosen system in all possible and reasonable ways. If two or more methods of adjustments of an economic measure are available, the legislative preference in favour of one of them cannot be questioned on the gro .....

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The complexity of economic matters and the pragmatic solutions to be found for them defy and go beyond conceptual mental models. Social and economic problems of a policy do not accord with preconceived stereotypes so as to be amenable to predetermined solutions. In State of Gujarat v. Ambica Mills Ltd. [(1974) 4 SCC 656 : 1974 SCC (L&S) 381 : (1974) 3 SCR 760] this Court observed: (SCC pp. 679, 680, 677, 678 paras 71, 72, 65, 67 and 64 respectively) "...The court must be aware of its ow .....

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, a classification is reasonable or unreasonable must, in the ultimate analysis depend upon the judicial approach to the problem.... The more complicated society becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversities.... In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not official deference to legislative judgment. The courts have only the power to destroy but not to reconstruct. .....

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cedure, etc... judicial deference to legislative judgment in instances of economic regulation is explained by the argument that rationality of a classification depends upon local conditions about which local legislative or administrative bodies would be better informed than a court." 82. The lack of perfection in a legislative measure does not necessarily imply its unconstitutionality. It is rightly said that no economic measure has yet been devised which is free from all discriminatory imp .....

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ra 38) "No scheme of taxation, whether the tax is imposed on property, income or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection clause." and also to the dissent of Marshall, J. who summed up his conclusion thus: (SCC p. .....

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o which the court has gone in dreaming up rational bases for State regulation in that area may in many instances be ascribed to a healthy revulsion from the court's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls [Darbridge v. Williams, 397 US 471, 520 : 25 Law Ed 2d 491] ." 83. The observations of this Court in ITO v. K.N. Takim Roy Rymbai [(1976) 1 SCC 916 : 1976 SCC (Tax) 143 : (1976) 3 SC .....

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ught in this Writ Petition can be granted in favour of the Petitioner. In the present case, it is common ground before us that up until 2015 no exemption was ever granted from payment of Safeguard Duty levied under section 8C of the CTA, 1975. Notification No.96/2009-Cus. dated 11th September, 2009 only granted exemption from payment of Safeguard Duty imposed under section 8B. This being the case, we, in our jurisdiction under Article 226 of the Constitution of India, cannot direct the Governmen .....

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y were otherwise liable to pay under such statute. The recipient of the concession has no legally enforceable right against the Government to grant of such a concession, save and except to enjoy the benefits thereof during the period of its grant. In other words, this right to enjoy the concession is a defeasible one, in the sense that it may be taken away in exercise of the very power under which the exemption was granted. This principle has been very succinctly set out by the Supreme Court in .....

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t required to pay the tax or duty they are otherwise liable to pay under such statute. The recipient of a concession has no legally enforceable right against the Government to grant of a concession except to enjoy the benefits of the concession during the period of its grant. This right to enjoy is a defeasible one in the sense that it may be taken away in exercise of the very power under which the exemption was granted. (See Shri Bakul Oil Industries v. State of Gujarat [(1987) 1 SCC 31 : 1987 .....

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. dated 11th September 2009, admittedly no exemption was ever granted from payment of Safeguard Duty imposed under section 8C of the CTA, 1975. It is for this very reason that the Automotive Tyre Manufacturers Association made a representation for issuing a corrigendum and/or amendment to the aforesaid Notification seeking exemption from payment of Safeguard Duty imposed under section 8C. This corrigendum obviously was never issued. This being the case and applying the principles laid down by th .....

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hallenge is laid to the Show Cause Notice dated 3rd October, 2013 issued by Respondent No.3. The said Show Cause Notice has yet not been adjudicated. It is really to circumvent or prejudge the adjudication of the aforesaid Notice that these arguments have been advanced on behalf of the Petitioner. As stated earlier, the Show Cause Notice is yet to be adjudicated and thereafter the Petitioner has several other remedies under the Act to challenge the adjudication order, if it is aggrieved by it. W .....

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case, even assuming for the sake of argument that the Show Cause Notice is adjudicated against the Petitioner and they are called upon to pay the Safeguard Duty imposed under section 8C on imports of Carbon Black from the People s Republic of China, the Petitioner, under sections 74 or 75 of the Customs Act, 1962 would be entitled to a drawback of the said duty, on them establishing that the Carbon Black imported by them and on which Safeguard Duty under section 8C was levied, was used in the m .....

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were exported out of India. In fact, to be fair to the Respondents, this is also the stand taken by them in their affidavit in reply to this Writ Petition. We therefore do not think that in these circumstances, this is a fit case where we ought to exercise our equitable, extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India in favour of the Petitioner. 39. Having said this, now we shall deal with the judgments relied upon by Mr Sridharan. The first judgment .....

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f Customs, Cochin, assessed the customs duty and additional duty payable under section 3 of the CTA, 1975 on this ship on an ad valorem basis and customs duty in the sum of ₹ 62,16,796.55 was levied on the movable articles in the ship. The body of the ship was assessed at 30% and 50% ad valorem and additional customs duty i.e. countervailing duty at 12% ad valorem. The Respondent paid a sum of ₹ 5,68,660/- as sales tax. After the import of the ship, the same was dismantled and broken .....

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ain other Notifications that were issued. The Notification dated 01-03- 1986, as referred to above, was superseded by another Notification dated 20-08-1986. A few months thereafter, another Notification dated 27-03-1987 was issued which superseded the Notification dated 20-08-1986 as well. In this Notification, again partial exemption was provided. On the very same day (i.e. 27-03-1987) the Government issued another Notification under which goods were exempted from the whole of the duty of excis .....

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nnage (LDT) were exempted from whole of the duty of excise leviable thereon. The Supreme Court opined that the two Notifications both dated 27-03-1987 pertained to the same goods viz. those falling under Heading Nos.72.15 and 73.09 of the Schedule to the Act. However, vide the first Notification, if the customs duty leviable on import of the ship for the purpose of breaking was paid at the rate of 1,035/- per LDT alongwith additional duty leviable thereon under section 3 of the CTA 1975, the exc .....

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then the benefit thereof is to be extended to all similarly situated persons. The Notification has to apply to the entire class and the Government cannot create sub-classification thereby excluding one sub-category, even when both the sub-categories are of the same genus. If that is done, it would be considered as violating the equality clause enshrined in Article 14 of the Constitution of India. It is in this light that the Supreme Court at paragraph 15 held thus:- "15. The judgment of thi .....

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particular class of persons or products etc. is entirely within the discretion of the Government. This discretion rests on various factors which are to be considered by the Government as these are policy decisions. In the present case, however, the issue is not of granting or not granting the exemption. When the exemption is granted to a particular class of persons, then the benefit thereof is to be extended to all similarly situated person. The notification has to apply to the entire class and .....

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under section 8B is on a specific article that may be imported from any country. On the other hand, the Transitional Product Specific Safeguard Duty under section 8C is not only article specific but also country specific. In other words, the Safeguard Duty imposed under section 8C is on a particular article specifically imported only from the People s Republic of China. There is therefore a clear distinction between the Safeguard Duty imposed under section 8B and under section 8C. The two secti .....

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elves and can never be classified as sub-categories of the same genus. In this view of the matter, we find that the reliance placed on the aforesaid decision is wholly misplaced. In fact, as set out in paragraph 15 of the said decision, the Supreme Court has noted its earlier decision in Kasinka Trading's case and held that there is a wide discretion available to the Government in the matter of granting, curtailing, withholding, modifying or repealing the exemption granted by earlier notific .....

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g or not granting exemption. The facts before us clearly show that despite the fact that section 8C was brought on the statute-book with effect from 11-05-2002, the Government in its wisdom and as a policy decision chose not to exempt the payment of Transitional Product Specific Safeguard Duty under section 8C. This, to our mind, was also keeping in tune with the foreign trade policies of India upto and including the Foreign Trade Policy 2009- 2014. It is only in the Foreign Trade Policy 2015-20 .....

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vance authorisation from the payment of Transitional Product Specific Safeguard Duty imposed under section 8C of the CTA, 1975. In these facts, we find that the decision of the Supreme Court in the case of Union of India v/s N.S. Rathnam and Sons. 2015 (322) E.L.T. 353 (S.C.) is wholly inapplicable to the factual matrix before us. 41. The next judgment relied upon by Mr Sridharan was in the case of Budhan Choudhry AIR 1955 SC 191 : (1955) 1 SCR 1045 and more particularly, paragraph 7 thereof. Th .....

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the object sought to be achieved by the statute in question. What is necessary is that there must be a nexus between the basis of the classification and the object of the Act under consideration. There is no dispute with the aforesaid proposition but we fail to see how the same would apply to the facts of the present case. Firstly, as stated earlier, no party has a vested right in claiming an exemption. Secondly, as held earlier, the Foreign Trade Policies upto and including 2009-2014 did not e .....

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Transitional Product Specific Safeguard Duty under section 8C. As noted earlier, the two sections clearly operate in two different fields. Whilst section 8B is article specific, section 8C is article specific and country specific inasmuch as imposition of Transitional Product Specific Safeguard Duty under section 8C comes into play only with reference to a specific article that is imported from the People s Republic of China. Furthermore, as noted earlier, different parameters are applied whils .....

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8 SC 538 : 1959 SCR 279 and more particularly paragraph 11 thereof. After relying upon its earlier judgment in Budhan Choudhry's case, AIR 1955 SC 191 : (1955) 1 SCR 1045 at paragraph 11 the Supreme Court very succinctly set out the principles that would have to be borne in mind by the Court when it is called upon to judge the constitutionality of any particular law attacked as discriminatory and violative of equal protection of the laws. The principles set out by the Supreme Court at paragr .....

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namely, Chiranjit Lal Choudhuri v. Union of India [(1950) SCR 869], State of Bombay v. F.N. Balsara [ (1951) SCR 682] , State of West Bengal v. Anwar Ali Sarkar [(1952) SCR 284] , Kathi Raning Rawat v. State of Saurashtra [ (1952) SCR 435], Lachmandas Kewalram Ahuja v. State of Bombay [ (1952) SCR 710], Qasim Razvi v. State of Hyderabad [ (1953) SCR 581] and Habeeb Mohamad v. State of Hyderabad [ (1953) SCR 661]. It is, therefore, not necessary to enter upon any lengthy discussion as to the mean .....

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that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law b .....

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of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases wher .....

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ng circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and un-known reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. The above principles will have to be constantly borne in mind by the court when it is called upon to adjudge the constitutionality of any particul .....

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ms made manifest by experience and that its discriminations are based on adequate grounds; the Legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of .....

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tile or discriminating Legislation. Again, we fail to see how this judgment would carry the case of the Petitioner any further. In fact, the aforesaid judgment clearly lays down that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon the person who attacks it to show that there has been a clear transgression of the constitutional principles. In fact, the said judgment clearly lays down that in order to sustain the presumption of constitutional .....

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ridharan is wholly misplaced. 44. The next judgment relied upon by Mr Sridharan is a decision of the Supreme Court in the case of Indian Express Newspaper (1985) 1 SCC 641 and more particularly paragraphs 77 to 83 thereof. The facts of this case would reveal that the Petitioners being publishers of daily newspapers and periodicals had challenged the imposition of import duty and auxiliary duty on newsprint on the ground of infringement of the freedom of the press by imposing a burden beyond the .....

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Supreme Court opined that such Notifications had to be issued by the Government after taking into consideration all relevant factors which have a bearing on the reasonableness of the levy on newsprint. The Supreme Court opined that the Government should strike a just and reasonable balance between the need for ensuring the right to freedom of speech and expression on the one hand, and the need to impose social control on the business of publication of a newspaper, on the other. In deciding the r .....

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the Supreme Court, initially, the Notifications were issued granting a total exemption on the import of newsprint. Subsequently, those Notifications were substituted by the Notifications dated 1st March, 1981 and 28th February, 1982 granting the exemption from payment of certain duty beyond what was mentioned therein. It is in light of this withdrawal of exemption and considering the fact that the freedom of the press was very much involved in the facts of that case that the Supreme Court sough .....

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Supreme Court gave the directions contained in paragraph 111. To our mind, the aforesaid decision is clearly distinguishable on facts and has no application to the factual matrix before us. In the present case, it is not as if the payment of Transitional Product Specific Safeguard Duty imposed under Section 8C was exempted under the Notification No.96/2009-Cus. dated 11st September, 2009 and the same was thereafter retracted without any justification. As stated earlier, this exemption was never .....

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641 is of no assistance to the Petitioner. 45. Equally, we find that the reliance placed by Mr Sridharan on a decision of the Supreme Court in the case of Deepak Fertilizers (2007) 10 SCC 342 is also wholly misplaced. In the facts before the Supreme Court, a Notification issued on 2nd November, 1994 provided for exemption from payment of tax on the sale of all potassium phosphatic fertilisers including NPK (20:20:0) and NPK (23:23:0), for a specified period. However, this Notification was super .....

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9- Cus. dated 11th September, 2009. It is not as if the exemption was initially granted and was thereafter withdrawn without any justification. In the case before us, the Petitioner seeks a mandamus, which in effect, would be to direct the Government to grant an exemption which was never granted earlier. In these facts, we find that the judgment of the Supreme Court in the case of Deepak Fertilizers (2007) 10 SCC 342 has no application to the facts of the present case and the reliance placed the .....

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n the present case, after perusing and interpreting the Foreign Trade Policies from 1997- 2002 to 2015-2020, we have come to the conclusion that there is no conflict between the Foreign Trade Policies issued by the Government of India from time to time and the corresponding Notifications issued to implement the said Policies. As mentioned earlier, it was only in the Foreign Trade Policy 2015-2020 that Transitional Product Specific Safeguard Duty imposed under section 8C of CTA, 1975 was sought t .....

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e Government of India from time to time and the corresponding Notifications issued to implement the said Policies. Therefore, we find that the decision of the Supreme Court in the case of Suprabhat Steel Ltd. (1999) 1 SCC 31 : 1999 (112) STC 258 would not carry the case of the Petitioner any further. 47. The last judgment relied upon by Mr Sridharan was in the case of Renusagar Power Co.(1988) 4 SCC 59 : AIR 1988 SC 1737 and more particularly paragraph 84 which reads as under:- "84. In this .....

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