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2019 (6) TMI 976 - HC - CustomsValidity of the notice issued under Section 28(1) of the Customs Act, 1962 - collection of duty on loading, unloading and handling charges - Rule 9(2)(b) of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988 - HELD THAT - Issue decided by Supreme Court in the case of WIPRO LTD. VERSUS ASSISTANT COLLECTOR OF CUSTOMS OTHERS 2015 (4) TMI 643 - SUPREME COURT where it was held that proviso (ii) to sub-rule (2) of Rule 9 introduced vide Notification dated 05.07.1990 is unsustainable and bad in law as it exists in the present form and it has to be read down to mean that this clause would apply only when actual charges referred to in Clause (b) are not ascertainable - the writ appeal is allowed in terms of the order of the Hon ble Supreme Court.
Issues:
Challenge to the validity of notice under Section 28(1) of the Customs Act, 1962 regarding duty on loading, unloading, and handling charges. Violation of Rule 9(2)(b) of the Customs Valuation Rules, 1988 under Article 265 of the Constitution of India. Analysis: The appeal in question was filed against the order passed in Writ Petition No. 4150 of 1991 by the Learned Single Judge. The challenge before the Single Judge pertained to the validity of a notice issued under Section 28(1) of the Customs Act, 1962 concerning the imposition of duty on loading, unloading, and handling charges. It was contended that Rule 9(2)(b) of the Customs Valuation Rules, 1988 was in violation of Article 265 of the Constitution of India. The matter raised in the appeal was previously considered by the Hon'ble Supreme Court in the case of Wipro Ltd. v. Assistant Collector of Customs and Others. The Supreme Court, in its order dated 16-4-2015, held that a specific amendment introduced in Rule 9 was unsustainable and bad in law. The Court directed that the clause in question should only apply when actual charges mentioned in the rule are not ascertainable. Consequently, the High Court's judgment was set aside, and the appeals were allowed as per the terms specified, with no order as to costs. Based on the submissions made and the precedent set by the Supreme Court, the writ appeal was allowed in accordance with the order of the Supreme Court. The order of the Learned Single Judge dated 25-3-1998 passed in Writ Petition No. 4150 of 1991 was consequently set aside.
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