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TMI Blog2013 (10) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of duty in respect of goods falling under First Schedule. It matters very little whether the same is on "Nil" or "Free" rate of duty - Following decision of Associated Cement Companies Limited. Vs. Commissioner of Customs [2001 (1) TMI 248 - Supreme court of India] - Decided against assessee. - Writ Petition Nos.20358 to 20362 of 1999, 19722/1999, 3/2000, 297/2000, 1057/2000 and 1286/2000 - - - Dated:- 3-10-2013 - Chitra Venkataraman And T. S. Sivagnanam,JJ. For the Petitioners : Mr. Hari Radhakrishnan For the Respondents : Mr. K. Mohanamurali, Standing Counsel for Customs ORDER (The Order of the Court was made by T. S. Sivagnanam, J.) In these batch of Writ Petitions, the petitioners have challenged the validity of the Notification issued by the Government of India, Ministry of Finance, in Notification No.127/99-Customs, dated 01.12.1999. Since the prayer in all the writ petitions are identical, it is suffice to refer to the facts in the lead case viz., W.P.No.20358 of 1999. 2. The petitioner imported wheat falling under Customs Tariff Sub-heading 1001.90 of Chapter X of the Customs Tariff Act, 1975 from Australia. The petitioner filed Bill of Entry fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Free is Zero, as in the duty under the rate of duty Nil , which is also a rate of duty and that the rate has been increased to 50% from Zero rate in the impugned Notification, which is well within the power conferred under Section 8-A of the Customs Tariff Act. Therefore, it is submitted that the impugned Notification is wholly within the jurisdiction of the Central Government and the same is not ultra-vires of Section 8A of the Customs Tariff Act and Section 12 of the Customs Act. 5. We have heard Mr. Hari Radhakrishnan, learned counsel appearing for the petitioners, Mr. M. Mohanamurali and Mr. Ravi Anantha Padmanabhan, learned Standing counsel appearing for the respondent Department. 6. The learned counsel appearing for the appellant reiterated the contentions noted above and submitted that under Section 8A of the Customs Tariff Act, it is an emergency power of the Central Government to increase import duties, wherein, it has been stated that in respect of any article included in the First Schedule, the Central Government is satisfied that the import duty leviable thereon under Section 12 of the Customs Act, should be increased and that circumstances exist, which render it ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty lieviable thereon under section 12 of the Customs Act, 1962 (52 of 1962) should be increased and that circumstances exist which render it necessary to take immediate action, it may, by notification in the Official Gazette, direct an amendment of that Scheduel to be made so as to provide for an increase in the import duty leviable on such article to such extent as it thinks necessary" Section 12 of the Customs Act. "12. Dutiable goods.- (1) Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods imported into, or exported from, India. [(2) The provisions of sub-section (1) shall apply in respect of all goods bringing to Government as they apply in respect of goods not belonging to Government.]" 9.1 Section 2 (14) of the Customs Act, 1962 defines dutiable goods to mean any goods which are charegeable to duty and on which duty has not been paid. 9.2 Section 2(22) of the Customs Act defines goods to include vessels, aircrafts and vehicles, stores, baggage, currency and neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed, the satisfaction was to relatable to the import duty leviable in respect of an article mentioned in the First Schedule of the Customs Tariff Act for the purpose of invoking Section 12 of the Customs Act. It is the endeavour of the petitioner to state that under the Tariff Act, the rate of duty is "Free". "Free" is not the rate of duty and therefore, no doubt, the imposition of 50% of the duty is without jurisdiction. 15. It is relevant to point out that the charging mechanism is Section 12 of the Customs Act. Section 12 of the Customs Act mandates that duties of customs shall be levied on goods imported into or exported from India and the measure or the rate of duty is as per the Tariff Schedule. Therefore, the levy is being controlled under Section 12 of the Customs Act. The rate of duty cannot operate as a bar to the charging Section. The rate of duty mentioned in the Tariff Schedule prior to the amendment is Free . It is to be noted that entry "free" occurs in the column "rate of duty". Therefore, Free is also rate of duty and in the event the Central Government is satisfied such duty should be increased, nothing precludes the Central Government from issuing notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. In considering the claim of the assessee therein, incidentally, the Apex Court referred to Section 2(14) of the Central Excise Act, 1944 on "dutiable goods". The Section points out that by virtue of Section 2(22) of the Central Excise Act, 1944 all kinds of movable property would be 'goods'. 20. Therefore, for the purpose of understanding the issue, it is not necessary for us to look at the definition of "dutiable goods" as given under Section 2(14) of the Customs Act, 1962. On the other hand, one has to look at the wording of Section 8A of the Customs Tariff Act, which states that in respect of any article included in the First Schedule, the Government has the authority to increase the rate of import duty leviable therein under Section 12 of the Customs Act. 21. Even though learned counsel for the assessee submitted that the increase of the rate of duty leviable under under Section 12 of the Customs Act is payable only when there is "Nil" rate of duty or any other rate of duty not in the case of Free , the said aspect has already been dealt with by the Kerala High Court in W.A.No.2651/2000 etc batch by order dated 10.04.2001, with which we respectfully agree. We do not agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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