TMI Blog1993 (5) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed. - 2684(NM)/93, 2685(NM)/93, 2686/93, 2687/93 - - - Dated:- 11-5-1993 - B.P. Jeevan Reddy and N. Venkatachala, JJ. [Judgment per : B.P. Jeevan Reddy, J.]. - Leave granted. Heard counsel for the parties. 2. These appeals arise from the common judgment and order of the Bombay High Court in a batch of writ petitions. The question is whether the photographic machinery imported by the appellants falls under Customs Tariff Heading No. 98.01. If it falls under it, it is entitled to a concessional rate of duty. If not, it is chargeable to a higher duty. 3. The Customs Tariff Act, 1975 was enacted by Parliament with a view to consolidate and amend the law relating to customs duties. It repealed the Indian Tariff Act, 1934 and Indian Tariff (Amendment) Act, 1949. Section 2 says that the rates at which duties of customs shall be levied under the Customs Act, 1962 are those specified in the First and Second Schedules. Section 3 levies additional duty equal to excise duty. Chapter 98 was introduced in the Schedule with effect from February 28, 1986. It relates to Project Imports; Laboratory Chemicals; Passengers Baggage, Personal Importation by air or post; Ship St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he maintenance of the plant or project mentioned in I to 6 above. (emphasis added) 5. The expression industrial plant is not defined in the Customs Tariff Act, 1975 or, for that matter, in the Customs Act, 1962. Chapter Note (2) of Chapter 98, which it must be emphasised is a part of statute itself, says that the expressions used in Heading No. 98.01 shall have the meaning assigned to them by the regulations made under Section 157 of the Customs Act and further that Heading No. 98.01 shall apply to all goods which are imported in accordance with such regulations. 6. As contemplated by Chapter Note (2) of Chapter 98 of the Customs Tariff Act, the Central Government framed the Project Import Regulations under Section 157 of the Customs Act, contained in Notification No. 230/86-Cus., dated April 3,1986. They came into force on the same day. Regulation (1) of these Regulations says that they shall be called Project Imports Regulations, 1986 and shall come into force on April 3,1986. Regulation (2) says that the said Regulations shall apply for assessment and clearance of goods falling under Heading No. 98.01. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inery or equipment is to be excluded from the purview of the industrial plant , it can and should be done only by the Act itself but not by a subordinate legislation like regulations. It was submitted that the 1986 regulations are outside the purview of Section 157 and are incompetent. The contentions were negatived and writ petitions dismissed by the Division Bench. 9. In these appeals, S/Shri Harish Salve and Kantawala urged the following contentions: (1) A perusal of the Customs Tariff Act discloses its scheme. The Act specifies the articles and things subjected to duty as also the rate of duty. Specification of articles is not left to be done by a delegate. It is true that power of exemption is conferred upon the Central Government under Section 25 of the Customs Act, but it is relevant to notice that a notification of exemption issued under Section 25 is required to be laid on the floor of both the Houses of Parliament by Section 159 of the Act. This shows the close control which the Parliament intended to exercise over the specification of articles and the rate of duty thereon. The Regulations made under Section 157 are not subject to Parliament's scrutiny in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 157 of the Customs Act confers upon the Central Board of Excise and Customs (constituted under the Central Boards of Revenue Act, 1963) the power to make regulations consistent with this Act and Rules, generally to carry out the purposes of this Act . Sub-section (2) particularises certain matters with respect to which regulations can be made. The specification of certain matters in sub-section (2) is without prejudice to the generality of the power conferred by sub-section (1). This is consistent with the standard legislative practice. Section 157 reads: 157. General power to make regulations. - (1) Without prejudice to any power to make regulations contained elsewhere, in this Act, the Board may make regulations consistent with this Act and the rules, generally to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power such regulations may provide for all or any of the following matters, namely- (a) the form of a bill of entry, shipping bill, bill of export, import manifest, import report, export manifest, export report, bill of transhipment, boat note and bill of coastal goods; (b) the conditions sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eapons in the Government's armoury to regulate the economy. A certain industry may require encouragement while another may not. Yet another sector may require to be controlled - nay, discouraged on some occasions. In an under-developed country like ours, the emphasis is bound to be more on capital goods' industry rather than on consumer goods' industry. The domestic industry has also to be protected and encouraged in certain situations. In 1986, the Government -which expression in this discussion includes the Board - evidently thought that import of 'industrial systems' meant for 'establishments designed to offer services of any description such as hotels, hospitals, photographic studios, photographic film processing laboratories' etc. needs no encouragement in the shape of concessional customs tariff and they said so through the said Regulations made in April, 1986. It is not for the court to question the wisdom of the Government's or for that matter, of Board's policy. Board is a part of the Government. It is in direct charge of the administration of the Act along with the Government. Probably, it is for this reason that the Parliament has, thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting it to the needs of the situation. This calls for a good amount of discretion to be allowed to the delegate. As is often pointed out flexibility is essential (in law-making) and it is one of the advantages of rules and regulations that they can be altered much more quickly and easily than can Acts of Parliament. We have pointed out hereinbefore the necessity of constant and continuous monitoring of the nation's economy by the Government (and its various institutions) and the relevance of these enactments as a means of ensuring a proper and healthy growth. Looked at from this angle, we are unable to see any substance in tile argument that Chapter Note (2) amounts to excessive delegation of the Parliament's essential legislative function. Chapter 98 provides a concessional tariff inter alia to industrial plant. The expression industrial plant is a term of wide connotation. All kinds of industrial plants may not require to be encouraged. Some may; others may not. Decisions of this nature have to be made from time to time. Parliament cannot obviously do this. It has, therefore, left the function to the Board which, as emphasised hereinbefore, is in immediate direct char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive functions shall not be delegated but the inessentials, however, numerous and significant they be, may well be made over to appropriate agencies. Of course, every delegate is subject to the authority and control of the principal and exercise of delegated power can always be directed, corrected or cancelled by the principal. 18. Applying the principles aforesaid, we cannot say that the Parliament has, by empowering the Board to define the expression industrial plant occurring in Chapter 98, delegated its essential legislative function. Indeed, we see no self-abnegation on the part of the Parliament. The power conferred by ChapterNote (2) is undoubtedly different from the power of exemption conferred by Section 25. It makes little difference in principle that while an exemption notification is required to be laid on the floor of the Parliament, regulations made under Section 157 are not so required. Absence of such requirement does not mean absence of control by the Parliament over the acts of the delegate. Nor are we satisfied that by excluding the industrial systems meant for establishments designed to offer services of any description, the Board has travelled beyond its b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 1312, dated December 1,1977 involved a major change of policy, which was a legislative function and therefore beyond the competence of a subordinate legislating body. We do not agree with the submission. Whenever there is a switch over from 'private sector' to 'public sector' it does not necessarily follow that a change of policy requiring express legislative sanction is involved. It depends on the subject and the statute. For example, if a decision is taken to impose a general and complete ban on private mining of all minor . minerals, such a ban may involve the reversal of a major policy and so it may require Legislative sanction. But if a decision is taken to ban private mining of a single minor mineral for the purpose of conserving it, such a ban, if it is otherwise within the bounds of the authority given to the Government by the Statute, cannot be said to involve any change of policy. 19. The statement of law is clear - and we agree with it respectfully. We are, therefore, of the considered opinion that Chapter Note (2) cannot be faulted as an instance of excessive delegation of essential legislative function nor can the Project Imports Regulations b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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