1999 (8) TMI 69 - SC - Customs

What is the nature of power exercised by the Central Government while issuing the amendment? notification; Whether the Central Government have artificially carved out two classes of power plants though in substance they are one? Whether there is no nexus with the object sought to be achieved by treating the power projects generating electricity for distribution differently from the power plants generating electricity for captive consumption only by such units whose end product is not electricity or power? Whether the Assistant Collector was justified in refusing to register the respondent s contract with M/s. Asea Stal in view of the amendment notification? Whether the action of the Assistant Collector of Customs in recalling/cancelling the registration of the respondent s contract with M/s. Gotaverken Energy Systems is sustainable in law? Held that - We agree with the learned Senior Counsel for the appellants in his submission that the exemption granted by the Notification No. 133/85 related to the goods falling under the Heading No. 84.66 of the First Schedule to the Customs Tariff Act, 1975 imported into India for power projects (including gas turbine power projects) the end product whereof was electricity meant for public distribution and therefore the amendment Notification No. 306/86 dated 1-5-1986 was only clarificatory in nature. he learned Senior Counsel for the appellants is right in submitting that power project could not have meant power plant also and the scope for confusion or doubts, if any, was done away with by inserting a clarification. Thus the amendment notification was clarificatory merely. Though the refusal to register the respondent s contract with M/s. Asea Stal as contained in the letter of Assistant Collector of Customs, Paradeep dated 17-8-1987 is being upheld, we would like to make it clear that this refusal has to be read in the light of the averments made in the application dated 28-1-1986 of the respondent wherein it was stated that the registration of the contract was sought for securing the benefit of the Exemption Notification No. 71/85-Cus. of 17-3-1985 and thereby treating the respondent s imports for power project assessable at nil duty. If the respondent s contract is entitled for registration for any purpose other than the one mentioned in the application, i.e., seeking exemption from payment of customs duty on the plea of the imports being referable to power project, the rejection would not come in the way of the respondent pressing its prayer for registration of the contract for such other purpose. Such an application, if made, shall be dealt with and disposed of by the authority concerned in accordance with law. The appellants contract with Gotaverken Engrey Systems was registered under the Import (Registration of Contract) Regulations, 1965 promulgated under the Custom Tariff Act, 1975. Admittedly, no opportunity of hearing was given to the respondent before cancelling the registration of contract. In our opinion the new Regulations having specifically saved things done or omitted to be done under the superseded Regulations the authority empowered to register the contract could not have cancelled the registration already done, more so without affording the respondent any opportunity of hearing. The High Court was therefore justified in setting aside the communication by the Assistant Collector of Customs cancelling the registration of the contract. We may however make it clear that what will be the effect of such registration on the dutiability or exemption from payment of duty on the goods imported pursuant to the contract is not an issue before us and therefore we have not expressed any opinion thereon leaving it to be adjudicated upon as and when an occasion may arise for the purpose. Appeal partly allowed. The judgment of the High Court to the extent to which it strikes down the communication dated 17-8-1987 cancelling the registration of respondent s contract with M/s. Gotaverken Energy Systems is maintained. Rest of the judgment of the High Court is set aside.

Summary

Issues Involved:
1. Nature of power exercised by the Central Government while issuing the amendment notification.
2. Whether the Central Government artificially carved out two classes of power plants.
3. Nexus with the object sought to be achieved by treating power projects generating electricity for distribution differently from power plants generating electricity for captive consumption.
4. Justification of the Assistant Collector in refusing to register the respondent's contract with M/s. Asea Stal.
5. Legality of the Assistant Collector of Customs' action in recalling/cancelling the registration of the respondent's contract with M/s. Gotaverken Energy Systems.

Detailed Analysis:

1. Nature of Power Exercised by the Central Government:
The Central Government's power to issue exemption notifications under Section 25 of the Customs Act, 1962 includes the power to amend, vary, or rescind such notifications. This is supported by the General Clauses Act, 1897, which allows the authority to modify or withdraw notifications. The Supreme Court in Kasinka Trading and Anr. v. Union of India & Anr. affirmed that the power to grant exemptions inherently includes the power to modify or withdraw them, emphasizing that such actions are in public interest.

2. Classification of Power Plants:
The amendment notification dated 1-5-1986 was argued to be clarificatory, distinguishing between power projects for public distribution and captive power plants for internal consumption. The Industrial Policy Resolution of 1956 and the Industries (Development and Regulation) Act, 1951, support this distinction. The Supreme Court found that the two classes-public power projects and captive power plants-are well-defined and distinct, with the former aimed at public distribution and the latter for internal use by industrial units.

3. Nexus with the Object Sought:
Article 14 of the Constitution prohibits class legislation but allows reasonable classification based on intelligible differentia with a rational relation to the objective. The Court held that the differentiation between public power projects and captive power plants is rational and justified. The exemption was intended for projects generating power for public distribution, not for captive consumption by industrial units.

4. Refusal to Register the Contract with M/s. Asea Stal:
The refusal to register the contract was upheld. The application for registration does not confer a vested right and must be decided based on the law at the time of consideration. The exemption notification had been clarified, and the Project Imports (Registration of Contract) Regulations, 1965, had been superseded by the 1986 Regulations. The refusal was deemed lawful, and the respondent's argument that both contracts should be treated similarly was rejected.

5. Cancellation of Registration with M/s. Gotaverken Energy Systems:
The cancellation of the registration was found unlawful. The new Project Imports Regulations, 1986, which superseded the 1965 Regulations, did not provide for cancelling existing registrations. Additionally, the respondent was not given an opportunity to be heard before the cancellation. The High Court's decision to set aside the cancellation was upheld. However, the judgment did not address the impact of registration on the dutiability or exemption of the imported goods, leaving it for future adjudication.

Conclusion:
The Supreme Court partly allowed the appeal. The High Court's decision to strike down the cancellation of the registration of the respondent's contract with M/s. Gotaverken Energy Systems was maintained. However, the rest of the High Court's judgment was set aside. Each party was ordered to bear its own costs.