1993 (4) TMI 79 - HC - Customs

Assessment - Exemption notification cannot be ignored - Classification of goods - Rate of duty - Refund (Customs) - Unjust enrichment - Writ jurisdiction

Summary

Issues Involved:

1. Rate of auxiliary duty when the Bill of Entry was presented.
2. Applicability of Section 15 of the Customs Act for the levy and computation of auxiliary duty under the Finance Act, 1990.
3. Constitutional validity of Section 15 of the Customs Act.

Issue-Wise Detailed Analysis:

1. Rate of Auxiliary Duty When the Bill of Entry was Presented:

The petitioners contended that the auxiliary duty was only 5% and that the Notification issued under Section 25 enhancing the duty was not operative on 15-12-1990. They argued that the gazette, although dated 15-12-1990, was not made available to the public until after the goods were cleared and the Bill of Entry was filed on 20-12-1990. The court noted that the respondents did not traverse the relevant basic facts pleaded in the writ petition. The court held that the Notifications dated 15-12-1990 were made available to the public only after the goods were released by payment of duty on 20-12-1990. Consequently, the auxiliary duty could only be 5% as the Notification enhancing the duty was not in force on 20-12-1990.

2. Applicability of Section 15 of the Customs Act for Levy and Computation of Auxiliary Duty:

The petitioners challenged the applicability of Section 15 of the Customs Act for the levy and computation of auxiliary duty under the Finance Act, 1990. However, the court did not find it necessary to delve into this issue in detail as the decision on the first issue was sufficient to resolve the matter at hand. The court left this question open for future consideration if the occasion arises.

3. Constitutional Validity of Section 15 of the Customs Act:

The petitioners also challenged the constitutional validity of Section 15 of the Customs Act. Again, the court did not find it necessary to address this issue in detail due to the resolution of the first issue. This question was also left open for future consideration if required.

Conclusion:

The court allowed the writ petition, directing the second respondent to dispose of the application filed by the petitioner under Section 27 of the Act, in light of the observations made regarding the effectiveness of the Notifications dated 15-12-1990. The second respondent was instructed to dispose of the application within three months. There was no order as to costs.