9911796707
TMI Blog2003 (2) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... on Rules, 1988, by issue of a writ of certiorarified mandamus. 3. Heard Mr. Arvind P. Datar, learned Senior Counsel appearing for the writ petitioner in both the writ petitions, Mr. R. Krishnamurthy, learned Senior Counsel appearing for M/s. Rangarajan and Prabhakaran for the 2nd respondent and Mr. K. Veeraraghavan, learned Additional Central Government Standing Counsel appearing for the 3rd respondent. With the consent of Counsel for either side, the writ petition itself is taken up for final disposal. 4. According to the petitioner, a joint venture company, imported 3,030.280 MT of Soda Ash of Chinese origin at CIF price of USD 119.00 per MT and the exporter being a Singapore based company. The price of soda ash was reduced over the last six years. The import price as on 18-3-99 was USD 119 per MT. The consignment arrived at Tuticorin Port as per the Bill of Entry presented on 7-8-99 and the vessel actually arrived on 18-8-99. For the purpose of customs duty, the goods are being valued in accordance with Section 14 of the Customs Act read with The Customs Evaluation (Determination of Price of Imported Goods) Rules, 1988. The Customs Act, 1962 and the rules are a comprehensive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia and it has no jurisdiction to issue any direction with regard to import or export of goods or home consumption. 7. The impugned order of the first respondent, it is contended, is arbitrary, violative of Articles 14 and 19(1)(g) as it interferes with the petitioner s right to carry on business. It is also contended that the impugned proceedings of the first respondent Commission offends Article 265 as any fixation of arbitrary value will drastically affect the rate of duty and results in imposition of tax without authority of law. The proceedings of the 3rd respondent is liable to be quashed as it is violative of principles of natural justice and the 3rd respondent has also abdicated itself to the directions issued by the first respondent without deciding the value and as provided in the Customs Act read with the Valuation Rules. 8. According to the petitioner, the customs duty is payable on the import value of the soda ash and not on notional value or any other value as has been ordered by the first respondent, Monopolies and Restrictive Trade Practices Commission. Though it is represented that as against the orders of the Monopolies and Restrictive Trade Practices Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the 3rd respondent has passed the impugned orders by abdicating itself by simply adopting the ex parte directions issued by the first respondent Commission. It is incumbent on the part of the 3rd respondent to assess the value in terms of Section 14 of the Customs Act, 1962 read with the Customs Evaluation (Determination of Price of Imported Goods) Rules, 1988, which it has miserably failed, as the value could be determined only by applying the said Rules. 13. Though the learned Counsel for the petitioner relied upon the pronouncements of the Supreme Court in Sounds N. Images v. Collector of Customs reported in 2000 (117) E.L.T. 538 (S.C.) = 2000 (9) SCC 143 and Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai reported in 2000 (122) E.L.T. 321 (S.C.) = 2001 (1) SCC 315, it may not be necessary to refer to the same in detail as it is the settled legal position. 14. In Eicher Tractors Ltd. v. Commissioner of Customs, Mumbai reported in 2000 (122) E.L.T. 321 (S.C.), the Apex Court held thus :- 9. These exceptions are in expansion and explicatory of the special circumstances in Section 14(1) quoted earlier. It follows that unless the price actually paid for the particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Assistant Collector of Customs should have valued the consignment in terms of the statutory provision of the Act and the Rules and it should have proceeded to assess as per the said statutory provision. Instead it has simply assessed as per the directions of the Monopolies and Restrictive Trade Practices Commission. The question whether the Commission s directions is binding or not is the question, which will be decided in the next writ petition, but it is clear that the 3rd respondent has abdicated itself and it had failed to discharge the statutory function in terms of Section 14 of the Customs Act and Valuation Rules. 16. On this short ground of violation of principles of natural justice and the 3rd respondent had failed to assess the value of goods/consignment imported as per statutory provisions, the impugned proceedings of the 3rd respondent is quashed and the matter is remitted back to the 3rd respondent for de novo consideration. 17. Taking up the next writ petition, it relates to the jurisdiction of the first respondent, Monopolies and Restrictive Trade Practices Commission. The jurisdiction of the Monopolies and Restrictive Trade Practices Commission to issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grievance of the respondents is that import is being made at predatory prices. The challenge is to the actual import. But allowing such a challenge will amount to giving the Monopolies and Restrictive Trade Practices Commission jurisdiction to adjudicate upon the legal validity of the provisions relating to import, which jurisdiction the Commission does not have. It is not a court with power of judicial review over legislative action. Therefore, it would have no jurisdiction to decide whether the action of the Government in permitting import of float glass even at predatory prices is valid or not. The Commission cannot prohibit import, its jurisdiction commences after import is completed and any restrictive trade practice takes place. 50. Customs duty on import of any goods is levied under the provisions of the Customs Tariff Act. The rate at which the import duty is to be levied is a matter of policy. The rate of duty is determined by the Schedule to the Customs Tariff Act and is subject to such exemption as may be granted under that Act. Thus the rate of import duty which is imposed is a legislative act and is thus not amenable to the jurisdiction of the Monopolies and Restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition. It is alleged that the Indian manufacturers are making much profits and despite import of float glass having taken place for the last 5-10 years the Indian industry has not suffered. On the other hand, the volume of sales has increased and the profit of the Indian producers not decreased. Under these circumstances, it was contended, the passing of the injunction was wholly uncalled for. 55. Import of material at prices lower than prevailing in India cannot per se be regarded as being prejudicial to the public interest. If the normal or export price of any goods outside India is lower than the selling price of an indigenously produced item then to say that the import is prejudicial to the public interest would not be correct. The availability of goods outside India at prices lower than those which are indigenously produced would encourage competition amongst the Indian industry and would not per se result in eliminating the competitor, as was sought to be submitted by the respondents. * * * * 74. In the case of import of soda ash, the contention is that the appellant is a cartel in America which was proposing to sell soda ash to India at very low prices with a view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e territorial jurisdiction of Monopolies and Restrictive Trade Practices. The Indian importer obtaining goods at a low price does not contravene any law. He has obtained a good bargain. 20. In view of the above binding pronouncement, this Court hasten to hold that the direction issued by the first respondent is without jurisdiction. Whether anti-dumping provisions under the Customs Act applies or not, it need not be examined and it is open to the authorities under the said provisions to initiate appropriate action, if the facts of the case warrants. However, this Court is not expressing any opinion in that respect. 21. In the circumstances, the order of the first respondent, Monopolies and Restrictive Trade Practices Commission in Miscellaneous Application instead of being quashed following the decision of the Apex Court in Haridas Exports v. All India Float Glass Manufacturers Association reported in 2002 (145) E.L.T. 241 (S.C.) = 2002 (6) SCC 600, this Court directs the third respondent to assess the import value without reference to the said directions of the Monopolies and Restrictive Trade Practices Commission. 22. It is represented that as per the interim orders, this ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
