2002 (10) TMI 103 - HC - Customs

Summary

Issues Involved:
1. Validity of proviso (ii) to Rule 9(2) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, as amended by Notification No. 39/90.
2. Allegation of arbitrariness and violation of Articles 14 and 19(1)(g) of the Constitution of India.
3. Ultra vires to Sections 14(1) and 14(1A) of the Customs Act, 1962.
4. Rationality of fixing handling charges at one percent of the FOB value.

Issue-Wise Detailed Analysis:

1. Validity of Proviso (ii) to Rule 9(2):
The petitioner challenged the proviso (ii) to Rule 9(2) inserted by Notification No. 39/90, dated 5-7-1990, claiming it was invalid, arbitrary, and ultra vires Sections 14(1) and 14(1A) of the Customs Act, 1962. The rule mandated that handling charges be fixed at one percent of the FOB value of the goods, irrespective of the actual handling charges incurred. The petitioner argued that this notional fixation disregarded the actual handling charges, which could be ascertained and were often significantly lower.

2. Allegation of Arbitrariness and Violation of Articles 14 and 19(1)(g):
The petitioner contended that the notional fixation of handling charges was irrational and arbitrary, thus violating Article 14 (right to equality) and Article 19(1)(g) (right to practice any profession or to carry on any occupation, trade, or business) of the Constitution of India. They argued that the rule treated high-value items with minimal handling costs the same as low-value, heavy items with substantial handling costs, thereby creating an unreasonable classification.

3. Ultra Vires to Sections 14(1) and 14(1A) of the Customs Act:
The petitioner argued that the rule was ultra vires to Sections 14(1) and 14(1A) of the Customs Act, which deal with the determination of the value of imported goods. They claimed that the rule exceeded the scope of the Act by imposing a notional percentage rather than actual costs.

4. Rationality of Fixing Handling Charges at One Percent of the FOB Value:
The respondents defended the rule, stating that prior to the Customs Valuation Rules, 1988, importers included 3/4th percent of the CIF value as handling charges based on established practice. The Central Board of Excise and Customs fixed the one percent rate after collecting data and considering the difficulty in ascertaining actual handling charges, which varied widely. The rule aimed to achieve certainty and uniformity in valuation.

The court noted that Section 156(2)(a) of the Customs Act empowers the Central Government to make rules for determining the price of imported goods, including additional components like transportation and handling charges. The court found that the rule-making authority acted within its powers under Section 14(1A) and Section 156(2)(a) of the Act. The court also referenced the Supreme Court's decision in Garden Silk Mills Ltd. v. Union of India, which upheld the inclusion of landing charges in the valuation for assessment.

The court rejected the petitioner's reliance on cases like Sales Tax Officer, Ponkunnam v. K.I. Abraham and Utah Construction & Engineering Pty. Ltd. v. Pataky, stating that those cases were not applicable to the present context. The court emphasized that the rule was based on objective and quantifiable data, taking into account the difficulties experienced in the past.

The court concluded that the method of fixing handling charges at one percent of the FOB value was not arbitrary or discriminatory. The rule aimed to provide a uniform and predictable method for determining assessable value, which was within the legislative intent and the powers conferred by the Customs Act.

Conclusion:
The court held that the impugned rule was neither arbitrary nor repugnant to Section 14(1) of the Customs Act. The writ petitions and writ appeals were dismissed, with no order as to costs.