TMI Blog1999 (5) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... 999. The release of the gold shall be effected within one week from the date the aforesaid amount is paid, the Bank guarantee and the Bond are furnished. The adjudication proceedings in all respects shall be completed within three months from today and final order passed during this period. If the respondents do not complete the adjudication proceedings and pass the final order within three months from today, the petitioner shall become entitied to the refund of the aforesaid amount of Rs. 3,26,560/- with interest at the rate of 18% per annum. The Bank guarantee and the bond furnished by the petitioner shall also immediately stand discharged at the expiry of the three months' period. The petitioner shall fully cooperate with the respondent in4. the adjudication proceedings. If the petitioner fails to cooperate in such proceedings, after giving one notice of their intention to do so, the respondents shall also be at liberty to seek appropriate directions from this court, if any necessity so arises." 2. Mr. Roychowdhury, learned Counsel, appealing on behalf of the appellant has principally raised two questions of law in this appeal :- (a) Whether the gold is a prohibite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he export and import policy and may also in like manner amend that policy. Pursuant to and in furtherance of the said provisions Export Import Policy for the year 1997-2000 had been taken, Clause 4.1 whereof reads thus - "4.1 Exports and Imports shall be free except to the extent they are regulated by the provisions of this Policy or any other law for the time being in force. The itemwise export and import policy shall be, as stated in columns 3 to 5 of the book, titled "ITC (HS) Classifications of Exports and Import Items" published and notified by the Director General of Foreign Trade and as amended from time to time." Item 2 provides for ITC (HS) Classification of Import and Export which contained as under - 710812 00 Other Unwrought forms Restricted Not permitted to be imported except against a licence or in accordance with a Public Notice issued in this behalf Import permitted against Special Import Licence (SIL) 7.Section 11 of the Customs Act, 1962 empowers the Central Government to prohibit importation and exportation of goods. 8.Section 111 which deals with the power of the Commissioner to confiscate the goods inter alia provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy 1997-2002 read with Col. 4 of the ITC (HS) Classification in Chapter 71, the Director General of Foreign Trade hereby notifies that these disignated agencies as mentioned in the Notification 80/97 referred above may import gold and silver for sale in the domestic market also without a licence or without surrender of SIL in respect of following entries of ITC (HS) Classifications of Export and Import Items 1997-2002 :- Gold : 710812 00 Other unwrought forms." 12.The same was further amended by a Public Notice No. 54 dated 4th November, 1997 which is to the following effect :- "Attention is invited to Public Notice No. 51/(PN)/97-02 dated 27th October, 1997 on the above subject. In partial modification of the above Public Notice, it is hereby notified that the imprt of gold and silver shall be permitted to the nominated and authorised agencies by the Reserve Bank of India (RBI)/Ministry of Finance. It is further notified that payment of Customs duty for import of gold and silver by such agencies without surrender of Special Import Licence (SIL) and by other importers against surrender of SIL shall also be made in Indian Rupees on payment of such Customs duties as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chinery or building is treated as deemed income and the same is brought to tax; in other words, the legal fiction enables the Revenue to take back what it had given by way of depreciation allowance in the preceding years since what was given in the preceding years was in excess of that which ought to have been given. This shows that the fiction has been created for the purpose of computation of the assessable income of the assessee under the head 'Business Income'. It was rightly pointed out by the learned Solicitor General that legal fictions are created only for a definite purpose and they should be limited to the purpose for which they are created and should not be extended beyond their legitimate field. But, as indicated earlier, the fiction under Section 41(2) is created for the purpose of computation of assessable income of the assessee under the head 'Business Income' and under Section 80-E(1), in order to compute and allow the permissible special deduction, computation of total income in accordance with the other provisions of the Act is required to be done and after allowing such deduction the net assessable income chargeable to tax is to be determined; in other words, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. This aspect of the matter, in our considered opinion, must be held to be fortified in view of the provisions contained in Section 3(3) of the 1992 Act. 22.However, the question remains as to whether in the facts and circumstances of the case this Court should interfere with the impugned order. It has not been the case of the appellant that the discretion which can be exercised by the statutory authority can in no circumstances be exercised by the Court. It is true that normally the Court may not exercise the discretion which can be exercised by a statutory authority but in the instant case the impugned order has been passed in a peculiar situation. The matter was heard by the learned Trial Judge on various dates. The case had been adjourned from time to time with a view to give opportunity to the appellant herein to state before the court as to how its interest can be best protected. 23.It is only on the suggestion of the learned Counsel appearing on behalf of the appellant that the learned Trial Judge passed the said order although no affidavit-in-opposition had been filed by them. In fact the writ application was disposed of with the consent of the parties. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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