TMI Blog2003 (10) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... payable on Metallurgical Coke when imported by manufacturers of pig iron or steel. This notification seeks to exclude from the ambit of the notification manufacturers of pig iron or steel using Corex Furnace and the exclusion in terms of the notification according to the petitioner is arbitrary and not based on any intelligible differentia and is discriminatory and is in violation of Articles 14 and 19(1)(g) of the Constitution of India. 2.1Petitioner-company has set up an integrated steel plant of capacity 1.57 MTP at Toranagallu in Bellary District. It is not disputed that the petitioners adopted the Corex - Basic Oxygen Furnace - Continuous Casting Process - Hot Strip Mills Route. Apart from this, the petitioners have also set up a Pellet Plant of Capacity 3 MTPA in the premises for manufacturing iron oxide pellets which is an essential input for pig iron making in the Corex Furnace, Petitioners are adopting a state-of-the-art technology for iron making i.e., Corex Furnace which is imported. Such a plant has been set up for the first time in India keeping in view the imports and benefits for production of pig iron. It has several advantages like, it is possible to use non-coo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has stated that the customs duty on Metcoke is proposed to be reduced to 5% on actual user basis to steel plants to help improve their viability. According to petitioner, the actual user, steel plant, includes blast furnace as well as Corex Furnace. Notification dtd. 19-5-2000 was issued by the first respondent for Anti-dumping duty was sought to be levied on the goods imported from China. The notification however, granted exemption only to manufacturers of pig iron or steel using blast furnace. Petitioner is challenging the discrimination in the matter of exemption. The matter is now pending in Supreme Court. The Government of India amended the notification on 19-5-2000 and exempted Metcoke from Anti-dumping duty if imported by manufacturers of pig iron or steel using blast furnace. Writ petition was filed in this Court. This Court granted interim reliefs to the petitioners permitting the company to clear the said goods on the payment of admitted duty and on the payment of 50% of disputed duty in cash and furnishing a Bank Guarantee for the remaining amount. The goods were imported in terms of the interim orders of this Court. Annexure-K is the interim order. Respondents thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould say that grant of 15% concessional rate to manufacturers of steel using blast furnace is arbitrary and discriminatory. Learned Counsel invited my attention to the certificates to contend that the Corex Technology and Blast Furnace Technology are one and the same. The older technology is the blast furnace technology and the modern technology is the Corex Technology. There is no difference between the two and that therefore benefits cannot be denied to the petitioner. Learned Counsel refers to the writ petition to contend that the respondents contrary to the direction of this Court have chosen to reject the representation thereby injustice has been done to his client. Learned Counsel says that the subsequent notification provides for a benefit in favour of the petitioner. In conclusion learned Counsel strongly contends that this Court has to interfere in the given set of circumstances. He also attacks the endorsement on the basis of the material already available on record in the light of the two certificates issued by the Central Government. Learned Counsel relies on several judgments in support of his contention. Per contra, learned Counsel for the respondent argues that no ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the name of the two processes are different but these two processes are equivalent and similar." (underlining is mine). 6.1Annexure-B is again a certificate issued by the Department of Metallurgy after remand by this Court. They refer to various factors and ultimately say that in spite of all these apparent differences, both old and new blast furnaces are basically the same. They further say as under; "Two process are considered similar, if the type of reactor, phenomena taking place in the processes, basic ingredients and nature of raw materials and final products are same. These similarity exist between both corex and blast furnace. So Technically speaking, both blast furnace and Corex processes are similar." 6.2The petitioner had also approached Mecon Ltd., a Government of India Enterprises in the matter of similarity between Corex Technology and Blast Furnace Technology. They had given their opinion as under; "We like to clarify that COREX technology as an alternate route for production of pig iron, the conventional one being the blast furnace technology. The basic difference between the two is that in case of corex the plant has been designed into 2 vessels, namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Chamber method. 3. Gases released during the process can be taped or controlled and utilized. 3. Gases released during the process cannot be tapped or utilised. 4. Gas generated during the process is of high calorific value and the same can be utilised in generation of power as fuel. 4. Gas generated during the process is of less calorific value and cannot be utilised for genera tion of power. 5. Ordinary coke of any quality can be used for manufacture or Pig Iron. Also the quantity of coke required is less when compared to Blast Furnace. 5. High grade Metallurgical Coke only can be used in case of Blast Furnace method. Huge quantity of Coke is required. 6. Release of hazardous Chemicals is minimum. 6. Release of chemicals is more. 7. Stoppage and restart very easy. 7. Stoppage and restart is time consuming and wastage is more. 5.6A mere reading of the difference between the two would show that Corex Technology is nothing but a modern technology. This Court can take judicial notice that the technological developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently. Only for a limited impugned period an amendment has been issued thereby providing for a concessional duty only for blast furnace technology by the respondent. Therefore in the light of my earlier finding that there exists similarities, an inference has to be drawn against the Central Government in the matter of custom duty reduction. 6.Petitioners' strong case is one of Article 14 an equal treatment clause. Article 14 provides that State shall not deny to any person equality before law. There are any number of cases on Art. 14. The Supreme Court in the case of 79 SC 1628 ruled at 1637 ruled as under; "It must, therefore be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious policy decision to grant concessional duty to manufacturers of pig iron and steel using blast furnace technology. It is not stated as to why a similar corex technology is omitted while granting concession. No acceptable reasons are forthcoming in the affidavit. In these circumstances, in terms of the judgment of the Supreme Court, reported in AIR 1996 SC 1, burden is not discharged by the Union of India. The affidavit is also silent as to whether the policy would help the object of viability or not. The consideration of object is more important in these cases. It is also not clear as to why this mini classification is made in the given set of circumstances in the light of Art. 14 of the Constitution. The Government has committed a serious error on the facts of this case in denying the concession to the petitioners. Petitioner strongly relies on the speech of the Minister with regard to grant of exemption. Object pointed out by the Hon'ble Minister is one of viability. The Supreme Court in AIR 1981 SC 1922 has noticed that the speech of the Minister can be considered for the purpose of proper ascertainment of the intention of the Government in reduction of customs duty. In fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no indication as to why the petitioners have been treated differently from the mills. Where power under Sec. 25(2) is exercised to grant a special exemption from payment of duty, under circumstances of an exceptional nature stated in such order, we would have expected the respondents to state on affidavit what it was that moved them in the public interest to grant such exemption and what was the exceptional nature of the circumstances attached to the imports made by the said mills. Having regard to the combined stand of the respondents not to state their case on paper we must assume that there was neither any public interest nor any exceptional matter involved and that others placed in circumstances similar to that in which said mills were placed must have the same benefit as was advanced to the said mills. Accordingly, we must direct the respondents to grant to the petitioner the same benefit that was granted to the said mills by the letter dated 19th March, 1977 written by M. Jayaraman, Under Secretary to the Government of India, Department of Revenue and Banking to the Collector of Customs, Bombay on 19th March, 1977 on the subject of "Exemption from payment of customs duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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