TMI Blog2007 (6) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Board of Excise and Customs, the 2nd respondent herein as violative of the Articles 14, 19(1)(g) and 265 of the Constitution of India and Section 151A of the Customs Act, 1962. 3.The appellant-Madras Steel Re-rollers Association is the petitioner in W.P. No. 4963 of 2006. W.P. Nos. 4848 and 5678 of 2006 are filed by the members of the appellant-association. 4.The brief facts of the case are as follows : The 2nd respondent has issued a Circular Bearing No. 1 of 2005-Customs dated 11-1-2005 containing clarification on various tariff issues. One such clarification is relating to the subject "classification of used steel rails for re-rolling under CTH 72.04 or 73.02 and whether freely importable" and the clarification reads as follows : "The Board considered the alternative Headings of 72.04 and 73.02 for the item. The main point for discussion related to the policy restrictions on the import of used rails. Chapter 73 of the CTA, 1975 specifically covers articles such as rails. In the case under reference, even though the items in question were in the form of rails, these bore markings of use and therefore these could not be used again as rails. Hence, suitable classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of rails, all rails of the type normally used for railway or tramway track, irrespective of their intended use. There is no exclusion for 'used rails' from this CTH. 4.In view of the above and for the purpose of uniformity in classification, it is hereby clarified by the Board that the appropriate classification of used steel rails" shall be under CTH 7302, and not under CTH 72.04 as ferrous waste and scrap. The instructions contained in para 8 of Board's circular No. 1/2005 may be considered as modified accordingly." 6.According to the appellant, as per the impugned Circular "used rails" shall be classifiable under Chapter heading 73.02 of the Customs Tariff Act, 1975 which attracts 15% of the Basic Customs Duty, 16% of the Additional Customs Duty (CVD) and applicable Education Cess thereon. Further, the Chapter heading 73.02 also requires an import licence from the Director General of Foreign Trade as it is a restricted item of import and as such, the consignment of "used rails" being imported by the petitioners would be assessed to higher duty of customs. The appellant-association and its members filed the present writ petitions questioning the validity of the Circular on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sorts". The assessing officer following a directive of the Board held that all types of poster paper of whatever colour including white should not be treated as "printing and writing paper" but as a "packing and wrapping paper". Allowing the appeal, the Supreme Court held in Para 8 as follows : (AIR at page 51) "If the power exercised by the Collector was a quasi-judicial power - as we hold it to be - that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timate to assume that the legislature intended to respect the basic and elementary postulate of the rule of law, that in exercising their authority and in discharging their quasi-judicial function, the tribunals constituted under the Act must be left absolutely free to deal with the matter according to their best judgment. It is the essence of fair and objective administration of law that the decision of the Judge or the Tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi-judicial tribunal is controlled by any such direction, that forges fetters son the exercise of quasi-judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well accepted notion of judicial process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters the Tribunals constituted by it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. The scope of the jurisdiction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue of common parlance that was a matter of evidence and should have been left to the Department to establish before the adjudicating authorities. The Bombay Bench was also correct in its conclusion that the circular sought to impose a limitation on the exemption notification which the exemption notification itself did not provide. It was not open to the Board to whittle down the exemption notification in such a manner. The exemption notification merely reproduced the language of Entry 8525-20-17 and since the exemption notification merely reproduced the tariff entry, the limitation sought to be imposed by the Board would tantamount also to reading the limitation into the classification itself. Since the issue would be ultimately a question of evidence the onus was on the Department to prove by appropriate evidence that the goods were classifiable under 8525-20-19 being the residuary entry. This the Department could have done by negativing the claim of importers that the goods were classifiable under Tariff Entry 8525-20-17 and by establishing that the imported goods could not reasonably be classified under any other head. In this particular case the onus had not been discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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