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1989 (3) TMI 385 - Calcutta High Court

1989 (3) TMI 385 - Calcutta High Court - (1989) 2 CALLT 47 HC - Dated:- 17-3-1989 - M Mallick, J. JUDGMENT Monoranjan Mallick, J. 1. In this writ petition under Article 226 of the Constitution of India, Bourne and Shepherd, a partnership firm has prayed for a writ in the nature of Mandamus commanding the respondents to withdraw, cancel and/or rescind the purported Order, dated 16th October 1982 and the said purported Order, dated 2nd April 1983 passed by the Respondent No. 2, Assistant Collector .....

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d printing of Colour Films and is duly registered as a Small Industrial Unit with the Directorate of Industries, Government of West Bengal. The processing unit of your petitioner is situated at No. 141, Surendra Nath Banerjee Road, Calcutta and various items of machineries are required by its aforesaid activities. 3. The Joint Chief Controller of Imports & Exports, Government of India issued an Import License to the petitioner being Import License bearing No. P|C|2077276|C|XX|84|C|82 for imp .....

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tems of machinery instruments, apparatus and suppliances, auxiliary equipments, etc., which require for initial setting up of an unit or substantial expansion of an existing unit of a specified industrial plant or specified project shall be liable to Customs Duty at the rate of 60 per cent. The said Heading No. 84.66 would apply provided the said machinery instruments, etc., are imported against one or more specific contract which have been registered with the appropriate Customs House in the pr .....

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sed, as admissible, on the recommendations of the Sponsoring Authority concerned for availing concessional rate of duty. Before making recommendation, the Sponsoring Authority will satisfy itself that the case is covered under the relevant notification issued by the Ministry of Finance in this regard. The endorsement to be made on the licence will be as follows: "Project import for assessment under Heading No. 84-66 of Section XVI of the Customs Tariff Act, 1975 (51 of 1975)". 6. Para .....

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titioner the Sponsoring, Authority, namely Local C.C. Committee before recommending endorsement on the said licenses duly examined all the relevant facts and after being fully satisfied that the import of the said machineries by the' petitioner was covered by the provisions of Heading No. 84.66 of the Tariff Act recommended to the Joint Chief Controller of Imports & Exports for making necessary endorsement on the said Licences as stipulated in paragraph 177(1) of the Hand Book of Import .....

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the said letter it was mentioned, inter alia, that the said machineries/equipments would be eligible for assessment under Item No. 84.66 of the First Schedule to the Tariff Act. 8. The petitioner duly placed order for import of only one machine, namely Divomat Mini Film developing machine process: Kodak C-41, 1000 mm tankheight, including automatic replenishment and 5 hangers, 4 pieces reservoirs with 30 lit each and wall bracket, solenoid valve and water filter for nitrogen, economic nitrogen c .....

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. The said Assistant Collector of Customs vide its letter, dated 16th October, 1982 informed the petitioner that on scrutiny of the papers submitted by the petitioner it appears that the subject does not come under the purview of the Industrial Plant or any other project enumerated in the aforesaid heading of the Tariff Act, 1975. In view of this, the benefit of Project assessment cannot be extended to the goods required for initial setting up and/or substantial expansion of the aforesaid Projec .....

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ing No. 84.66 for Customs Tariff Act 1975. The petitioner through its Clearing Agents in the said letter further stated that they did not agree with the views expressed by the Assistant Collector of Customs vide his letter, dated 15th October, 1982 and further requested the said Assistant Collector of Customs to enable the petitioner to file necessary document for registration of Project Contract as the consignment is due at the Port of Calcutta shortly. A copy of the said letter, dated 19th Mar .....

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er was made permitting clearance for home consumption or depositing in Warehouse of the said machinery. The petitioner accordingly through its Clearing Agent submitted bill of entry and all relevant documents before the Respondent No. 2 for registration of the contract in question so as to enable the petitioner to get the machinery assessed under Heading No. 84.66. All necessary formalities in this connection were duly complied with by the petitioner. A copy of the said bill of entry is annexed .....

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case for registration was not allowed earlier vide letter No. F.N. S37/C (misc) 324/82A dated 16.10.82. So this Bill of Entry cannot be assessed under Project Import holding 84.66." 14. The petitioner states that the Respondent No. 2, by its two purported Orders, dated 16th of October, 1982 and 2nd of April, 1983 refused to register the said Contract and refused to permit clearance of the goods on payment of duty under Heading No. 84.66. 15. The petitioner states that even the Director of C .....

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ter, dated 14th June, 1982 is annexed hereto and marked with the letter "I". 16. The petitioner states that the Deputy Director (Chemical), Government of India, Ministry of Industry vide its letter, dated 19th March, 1983 has also informed the petitioner that the import of machinery under the policy of project import is regulated as per the provisions of paragraph 177(1) of the Hand Book of Import-Export Procedures, 1982-83 and that the Colour Film Laboratory is considered as an indust .....

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reunder and accordingly denied registration of the contract under the said head. 18. The petitioner states that the said purported Orders, dated 16th of October, 1982 and 2nd of April, 1983 and all purported proceedings relating thereto are wholly illegal, invalid and without jurisdiction. It is incumbent upon the respondents to assess the said machinery imported by the petitioner under Heading No. 84.66 of the Tariff Act. 19. As would be evident from the facts stated hereinbefore all the Approp .....

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all relevant facts and after being satisfied in the matter issued the said licences to the petitioner by making endorsements thereon to the effect that the said licences were being issued for import under the project import scheme for assessment under Heading No. 84.66 of the Tariff Act. The authorities concerned of the Government of India as well as the Government of West Bengal have repeatedly informed the respondent Customs Authorities that the said machineries imported by the petitioner wou .....

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ndia that the goods covered by the licences in question would be entitled for assessment under Heading No. 84.66 of the Tariff Act. The said decisions of the Government of India and/or Licencing Authorities and/or Sponsoring Authority are binding upon the Customs Authorities and the Customs Authorities have no right, authority or jurisdiction to take a different and inconsistent view or to go beyond the said decisions and/or Orders of the Licencing Authorities and/or Sponsoring Authority and/or .....

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er Heading No. 84.66 of the Tariff Act. The goods imported under such licences endorsed for project import have to be assessed only under the said Heading No. 84.66 and the Customs Authorities have no right, authority or jurisdiction to levy and/or demand duty in respect of such imports under any other item. 20. In the circumstances, the petitioner submits that all the conditions for assessment under Heading No. 84.66 of the Tariff Act are satisfied in respect of the said unit of the petitioner .....

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ities and they have no right, authority or jurisdiction to go back on the said promises and/or representations and to contend that the petitioner is not entitled to get the said machineries assessed under the said Heading No. 84.66. The Customs Authorities are bound by the doctrine of promissory estoppel in this regard and the interest of the petitioner would greatly suffer if the Customs Authorities were allowed to go back on the said representations and/or promises. The petitioner, therefore, .....

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ffidavit-in-opposition. However at the time of hearing none has appeared on behalf of the Respondent No. 3. It is their case that on the basis of the recommendation given by the Sponsoring Authority that Director of Cottage and Small Scale Industries, Government of West Bengal, the Joint Chief Controller of Imports and Exports made an endorsement on the Import Licence in terms of paragraph 174 (2) of the Hand Book of Import and Export Procedures AM 1983, that merely on the strength of the recomm .....

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ariff Act and that it is not correct that any independent enquiry was made by the Respondent No. 3 to decide whether the said machineries were eligible for assessment under the Heading No. 84.66 of the Tariff Act. 23. On behalf of the Respondent Nos. 1 and 2 no Affidavit-in-opposition has been submitted but the Learned Advocate for the Customs has appeared and has contested the writ petition contending that the machineries in question imported by the petitioner under the Import Licence in questi .....

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register the contract of such importation under 84.66 when such an application was made in 1982 and again in 1983 by Clearing Agent of the petitioner. 24. It is also contended that the charging of the duty under the relevant heading is a quasi Judicial function of the Customs Department, that in discharging such function the Assistant Collector of Customs is not to be guided even by any executive or other instructions by his superior officers and there is no question of any promissory estoppel .....

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ding. 26. On behalf of the petitioner it is submitted that when the Department of Industry of the Government of India and the Joint Chief Controller of Imports and Exports being the wings of the Government of India assured and represented to the present petitioner that their unit was an Industrial Plant and that the machineries imported were eligible for concessional duty under the heading No. 84.66 of the Customs Tariff Act and that when under the relevant paragraph of the Hand Book of Import a .....

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own position to his detriment and the Customs Department is thus estopped from claiming the higher rate of import duty and from refusing to register the contract under Heading No. 84.66. 27. The Hand Book of Import and Export Procedures A.M. 1983 which is the handbook relevant for the purpose of these imported machinery in paragraph 174 reads thus- "(1) Import Licences issued for Capital Goods and connected raw materials and components required for the initial setting up or for substantial .....

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Act 1975 (51 of 1975). (2) Where import of machinery is allowed under open general licence, the benefit of concessional rate of duty may be allowed by the Customs Officer on the recommendation of the Sponsoring Authority concerned". 28. The Import Licence Annexure 'B' contains the following endorsement as contemplated in paragraph 144(1) of the relevant Hand Book, namely, "project import for assessment under Heading No. 84.66 of Section XVI of the Customs Tariff Act 1975 (51 of .....

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of machineries is allowed under open general licence, the benefit of concessional rate of duty may be allowed by the Customs Officer on the recommendation of the Sponsoring Authority. 30. Therefore, this paragraph only indicates that the benefit of concessional rate of duty may be allowed by the Customs Officer on the recommendation of the Sponsoring Authority. The Sponsoring Authority in this case is the Director of Cottage and Small Scale Industries, Government of West Bengal. A copy of the r .....

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that the unit can get the faculties of concessional duty, if eligible." 31 (a). This letter of recommendation of the Sponsoring Authority clearly indicates that the petitioner would be entitled to get the concessional duty only if it is eligible for the same. 32. After the Import Licence has been obtained, the petitioner wrote the letter, dated August 20, 1982 vide Annexure 'E' to the writ petition to the Assistant Collector of Customs for the registration of the contract for the pu .....

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or concessional duty under Heading No. 84.66, the Customs Authority should register it under that heading so that it can get the concessional rate of duty under that heading. 33. In reply to that letter the Respondent No. 2 wrote back to the petitioner by the letter, dated 16.10.82 that as the subject project does not come under the purview of the Industrial Plant or any other project enumerated Heading No. 84.66 of the Customs Tariff Act 1975 the benefit of project assessment cannot be extended .....

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replied that that the project assessment under item No. 84.66 of the Customs Tariff Act could not be extended to the goods covered by the Import Licence and that the Respondent No. 2 might again reconsider the case and allow clearance at the concessional rate of the project contract under the Heading No. 84.66 under the Customs Tariff Act 1975. It is an admitted position that by the Order, dated 2nd April, 1963 the Assistant Collector of Customs being the Respondent No. 2 refused to reconsider .....

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Import and Exports, Calcutta held that the petitioner's case of import was eligible for the concessional rate of Duty, the Customs Authority being the another wing of the Government of India is also bound by such representation and/or promise. 36. My attention has also been drawn to a letter, dated 19th March 1983 issued by the Deputy Director of Chemicals of the Government of India, Ministry of Industry (Department of Industrial Development), Small Industry Service instituted. That letter h .....

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m Laboratory is considered as an industry by the Government. 37. This letter of the Government of India does not give any assurance or representation that as soon as the machineries under the said project is imported, the petitioner will be entitled from the Customs Department the necessary facilities of concessional rate of duty under Heading 84.66 of the Customs Tariff. 38. I have already indicated that the Hand Book of the import and export procedure itself has stated that the Customs Departm .....

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clusive jurisdiction of the Customs Department to decide as to whether it would register the contract in question under the Heading No. 84.66. It is for this purpose the petitioner on August 20, 1982 and again in March 1983 made a request to the Assistant Collector of Customs to register the contract under the above Heading. The same has been refused by the Respondent No. 2. Whether the said refusal is arbitrary or illegal and whether because of such arbitrary refusal the petitioner would be ent .....

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isions follow the principle laid down in the English Decision reported in 1948(2) All E.R. page 767. The Supreme Court has also in several decisions enunciated this principle and these decisions have also gone ever far to lay down the principle that if one wing of the Government holds out such promise the other wing of the Government would also been estopped from acting contrary to such promise. The main such decisions are reported in Union of India v. Anglo Afgan Agencies, AIR 1968 S.C. 718, M. .....

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t would be acted upon by other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be in equitable to allow him to do so having regard to the dealing which have taken place between the parties and these would be so irrespective of whether there is any pre-existing relationship between the parties or not. It has also been clearly held that the doctrine .....

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invoked for preventing the Government from discharging its functions under the law. (iii) When the Officer of the Government acts outside the scope of his authority, the plea of promissory estoppel is not available. (iv) The Officer would be justified in discharging the terms of the prejudice of the other party on special consideration, such as difficult foreign exchange position or other matters which have a bearing on. general interest of the State. 41. There are also several decisions of the .....

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sional rate of Duty under the Heading 84.66 of the Tariff Act and only when the Assistant Collector of Customs is so satisfied then he has the obligation to register it. Therefore no question of promissory estoppel arises in such a case. As to what is duty is chargeable under a particular Heading is a question of interpretation of the relevant Heading by the Customs Officer concerned. He has to exercise his jurisdiction fairly and not arbitrarily but even if the Sponsoring Authority recommends t .....

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estion arose before the Supreme Court as to whether the Government was estopped from enforcing the notification raising the Sales Tax and Collecting Sales Tax. High Court has held that when Section 3A and 4 of the U.P. Sales Tax 1948 clearly authorises the State Government to impose the Sales Tax, the fact that the sales of country liquor had been exempted from sales tax vide Notification, dated April 6,. 1959 could not operate as an estoppel against the State Government and preclude from subjec .....

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eading of the Central Excise Tariff was the exclusive jurisdiction of the Concerned Authority and it is well settled that there cannot be any estoppel against the statute and the Authorities deciding the application of the statute cannot be bound by any directions of trade notice issued by the Government and that the quasi-Judicial Authorities are not bound to classify a product on the basis of the trade notice nor the contents of trade notice can conclude the ambit of the Tariff item. 43. Thus .....

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writ petitioner that the Customs Department had illegally held that the project import does not come within the purview of the Heading 84.66. It is contended that the machinery imported is definitely in connection with an Industrial Plant, that the Central Government has recognised the Film Laboratory to be an Industry and consequently the machinery imported for the substantial expansion of the Film Laboratory of the petitioner is the importation of auxiliary machinery for an Industrial Plant a .....

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ustoms Tariff Act. Therefore, we shall have to rely upon the ordinary dictionary meaning of the expression "Industrial Plant". 'Plant' has been defined in law lexican is as follows :- In Webstor's dictionary the meaning of the word Plant as given therein is as follows : "The machinery, apparatus, fixtures, etc., employed in carrying on a trade or a mechanical or other industrial business; as an electric light-plant, a fishing plant, etc. In the commercial sense, a plan .....

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g of the word it seems that it would only cover an asset representing capital investment in a manufacturing trade or business, because according, to the said extended meaning, it must be something, which represents capital invested in the means of carrying on business exclusive of its raw materials or the manufactured product." 47. The machinery imported by the petitioner would come within the definition of "plant". That the laboratory of the petitioner is an industrial plant has .....

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try within the meaning of that term. It is therefore urged that when the laboratory of the petitioner is engaged in processing the Film and not in manufacturing any product, it is not an industry. My attention has been drawn to a decision of the Customs Tribunal reported in 1982 (17) ELT 443 Photo Visual, Calcutta v. Collector of Customs, Calcutta in which the Tribunal has also rejected the contention of a similar photographic establishment and a laboratory of Calcutta to come under the Heading .....

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0th Century Dictionary page 669 as "any branch of trade or manufacture". I am of the view that it would be a very taking a very narrow view if it is held that the Industrial Plant envisages only the manufacture and production of goods from raw materials. The Government of India has also indicated in its letter annexed that a film processing laboratory is considered by the Central Government to be an industry. A Film processing industry is engaged as processing of Film the mechanical pr .....

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ssing laboratory would not come within the purview of an industrial plant. Thus I am of the view machinery imported for the expansion of the laboratory of the petition is importation of machinery for an industrial plant. 50. However, there is a very important aspect for Heading 84.66 to be attracted and that has been indicated in the judgment of the Tribunal referred to above. The Tribunal has also observed that in the above decision Heading No. 84.66 envisages the Government specifying the indu .....

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ms and their components, required for the initial setting up of a unit, or substantial expansion of an existing unit, of a specified : (1) Industrial Plant, (2) Irrigation Project, (3) Power Project, (4) Mining Project, (5) Project for the exploration for oil or other minerals, and (6) Such other projects as the Central Government may, having regard to the economic development of the country, notify in the Official Gazette in this behalf: Provided these are imported (where is one or in more than .....

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