1994 (7) TMI 89 - SC - Customs

Whether the higher rates indicated by the impugned Notification No. 142/86-Cus., dated 13th February, 1986 were attracted? Held that - no substance in the contention that notwithstanding the publication in the Official Gazette there was yet a failure to make the law known and that, therefore, the notification did not acquire the elements of operativeness and enforceability. This contention of Sri Ganesh is unacceptable. The notes which are part of the Tariff provisions read with the Tariff indicate that the parts and components of Ball and Roller Bearings are not excluded as contended. This contention has no substance. As indicated earlier the rates prescribed in the impugned notification do not also exceed the rates of statutory duty. The second contention of Sri Ganesh is not substantial either. A tax, in particular, in the nature of duties of customs is not per se violative of Article 19(1)(g). Mere excessiveness of a tax is not, by iteself, violative of Article 19(1)(g). This question cannot be divorced from the nature of the right to import. There is no absolute right much less a fundamental right to import.That apart, no factual foundations are laid to demonstrate how this impost has had the effect of destroying the petitioner s right to carry on a trade or business. This contention also has no merit. Appeal dismissed.

Issues Involved:
1. Validity and applicability of Notification No. 142/86-Cus., dated 13-2-1986.
2. Whether the impugned notification was ultra vires the powers of the Central Government under Section 25(1) of the Customs Act, 1962.
3. Whether the duty imposed by the notification constituted an unreasonable restriction on the petitioner's fundamental rights under Article 19(1)(g) of the Constitution.

Detailed Analysis:

1. Validity and Applicability of Notification No. 142/86-Cus., dated 13-2-1986:

The petitioner, M/s. Pankaj Jain Agencies, challenged the vires of Notification No. 142/86-Cus., dated 13-2-1986, which amended the earlier Notification No. 70/85, dated 17-3-1985, concerning rates of customs duty on parts, components, and sub-assemblies of Ball Bearings and Roller Bearings. The petitioner argued that the higher rates of duty indicated in the impugned notification could not be applied to two consignments as the notification was not duly promulgated or brought into force on the day the import occurred. The Court held that the relevant date for determining the rate of duty was the date of the Bill of Entry, which was 19th February 1986, and the notification dated 13th February 1986, published in the Gazette on the same day, was valid and enforceable.

2. Whether the Impugned Notification was Ultra Vires the Powers of the Central Government Under Section 25(1) of the Customs Act, 1962:

The petitioner contended that the impugned notification, in so far as it prescribed import duty on parts of Ball Bearings, was ultra vires the powers of the Central Government under Section 25(1) of the Customs Act, 1962, as no duty was contemplated for spare-parts or components of Ball Bearings under the Customs Tariff Act, 1975. The Court found that the impugned notification did not impose a new duty but merely reduced the extent of the earlier exemption. The notification did not prescribe a rate higher than the statutory duty, and the parts and components of Ball and Roller Bearings were not excluded under the Tariff provisions. Therefore, the contention that the notification was ultra vires was devoid of force.

3. Whether the Duty Imposed Constituted an Unreasonable Restriction on the Petitioner's Fundamental Rights Under Article 19(1)(g) of the Constitution:

The petitioner argued that the enhancement of duty brought about by the impugned notification constituted an unreasonable restriction on their fundamental rights under Article 19(1)(g) of the Constitution. The Court held that a tax, particularly customs duties, is not per se violative of Article 19(1)(g). Mere excessiveness of a tax does not violate Article 19(1)(g), and there is no absolute right to import, much less a fundamental right. The petitioner failed to demonstrate how the impost destroyed their right to carry on trade or business. This contention was also found to be without merit.

Conclusion:

The Court dismissed the writ petition with costs, holding that none of the contentions urged by the petitioner deserved to succeed. The impugned notification was valid, within the powers of the Central Government, and did not constitute an unreasonable restriction on the petitioner's fundamental rights.

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