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TMI Blog2023 (6) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ or order or direction under Article 226 of the Constitution of India ordering and directing the Respondents themselves, their officers and subordinates (i) to withdraw and/or cancel the impugned Customs Notification No. 26/2009 dated 23.03.2009 and Preliminary Findings dated 02.02.2009 (Exhibit "A" & "B" hereto); (c) That pending the hearing and final disposal of this Petition, the Respondents by themselves, their officers, subordinates, servants and agents be restrained by an interim order and injunction of this Hon'ble Court from taking any steps or proceedings in pursuance of and/or in furtherance of and/or in implementation of impugned Customs Notification No. 26/2009 dated 23.03.2009 and Preliminary Findings dated 02.02.2009 (Exhibit "A" & "B" hereto);" 2. Relevant facts: On 27th January 2009, on the backdrop of an application filed by the domestic industry, Respondent No. 1 initiated safeguard investigation on the imports of Aluminum Foil vide Notification No. D-22011/46/2008 dated 27th January 2009. By such application, the domestic industry had requested for imposition of safeguard dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of figures showing the cost at the time of export and the price in the domestic market it will not be possible to consider the contention. The fact, however, remains that the petitioner is an importer of aluminum Flat Rolled Products and as also aluminum foil. The petitioner used to import through Nava Seva. The petitioner has, however, contended that though safeguard duty may be imposed nonetheless there are no provisions or rules made for assessment and collection of duty. It is, therefore, submitted that in the absence of that mechanism it is not open to the Respondents to collect safeguard duties. The Notification under Section 8C was issued on 23rd March, 2009. The duty is effective upto and include 8th October, 2009. It is not necessary for us to deal with the several contentions as advanced at the bar.. 2. Under the provisions of Section 8C(6) of the Customs Tariff Act, 1975 it is provided as under: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion that the Notification prima facie is not illegal, nevertheless in the absence of powers to assess and for collection of duty the authorities under the Customs Act have no jurisdiction. 5. On the other hand on behalf of the private respondent namely respondent No. 5 it is sought to be contended that the provisions making applicable the provisions of the Customs Act to the Customs Tariff Act, are more of a clarificatory nature and only for the purpose of making applicable the Rules and Regulations. It is submitted that in fact all customs duties are chargeable to duty under Section 12 of the Act and consequently the provisions of the Act, Rules and Regulations will be applicable without the need for any further rules for assessment of collection or safeguard duty. On behalf of the Union of India learned Counsel also partly concurs with the argument advanced on behalf of the private Respondent. 6. The argument on behalf of the respondents perhaps could have been considered if Section 12 of the Customs Act was the only charging Section in respect of duties imposed on import of goods. Considering, however, the decided case law in our opinion it is not possible to accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no provision should be rendered as otiose. Secondly, there is a clear indication in the Act itself that if the Parliament intended that the provisions of the Customs Act ought to be applied they would have so done it. Section, 3, Section 9 and Section 9A are illustrative instances. We are, therefore, clearly of the opinion that there is no machinery provided for assessment and collection of safeguard duty, even though prima facie we are of the opinion that exercise of power under Section 8C to impose transitional duty exists. 6. In Rapti Commission Agency vs. State of U.P. & Others, (2006) 6 S.C.C. 522 the Court was pleased to observe that if a person is not liable to payment of tax at all, at any time, the collection of a tax from him, with a possible contingency of refund at a later stage, will not make the original levy valid, because if sales or purchases are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax. We have referred to this judgment as a submission was made on behalf of the petitioners in answer to the contention raised on behalf of the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the interim order, that the Petitioners be directed to discharge the duty liability in terms of what was observed by the Court in the interim order dated 8th May 2009. This Court disposed of the said Civil Application by an order dated 11th June 2010, whereby the Petitioner was directed to furnish a Bank Guarantee to the extent of 50% of the amount covered by the bond, in addition to the bond executed by the Petitioner. Such order was to operate during the pendency of the petition, and accordingly, the interim order dated 8th May 2009 came to be modified. The relevant extract of the order dated 11th June 2010, reads thus:- "(7) Having heard both parties, it is clear that vide interim orders dated 8th May 2009 the Petitioners were directed to execute bonds, which the Petitioners have admittedly executed. The Petitioners after execution of the bonds have not imported any goods. The Revenue is sufficiently protected in view of the bonds executed by the Petitioners. (8) On this backdrop, considering the parameters for the grant of interim relief, we find that the issue sought to be raised in the petitions needs consideration. The Petitioners have made out prima-facie case. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner (H) dated 28th March 2017, addressed to the Petitioner a copy of which has been placed on record. 12. Learned counsel for the Petitioner has fairly stated that in the peculiar circumstances, the Petitioner having already deposited duty of Rs. 97,44,034/- under self-assessment, the issue in regard to the validity of the Notification is not being pressed by the Petitioner. Thus several contentions as raised by the petitioner in the petition which would have otherwise fallen for our adjudication in the present proceedings inter alia whether the action of respondents in issuing the Notification at the relevant time was at all legal and valid, are not required to be gone into. 13. In the above circumstances and peculiarly in the fair position as taken by the Petitioner, in our opinion, this is certainly not a case where the Petitioner ought to be foisted with interest under Section 28AA of the Customs Act as made applicable by Sub-section 5A of Section 8C of the Customs Tariff Act. It may be observed that the Respondents also, were in no manner aggrieved by the self-assessment as undertaken by the Petitioner under which duty was paid. Moreover, a final assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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