9911796707
TMI Blog2015 (10) TMI 2035X X X X Extracts X X X X X X X X Extracts X X X X ..... failing on which, will have to deposit full duty. CBEC directed to decide the representations dated 16th December, 2014, 12th February, 2015 and 13th March, 2015 filed by the petitioner on or before 23rd October, 2015 and a copy of such decision shall be placed before this court on or before the returnable date. - Special Civil Application No.10934 of 2015 - - - Dated:- 8-9-2015 - Ms. Harsha Devani And Mr. A.G.Uraizee, JJ For the Petitioner : Mr Mihir Joshi, Sr. Advocate with Mr Hardik P Modh, Advocate For the Respondent : Mr RJ Oza, Advocate ORDER PER : MS. HARSHA DEVANI 1. The issue involved in this case relates to the levy of safeguard duty on goods imported by the petitioner. By a notification dated 13th August, 2014, the Central Government in exercise of powers under sub-section (1) of section 8B of the Customs Tariff Act read with rules 12, 14 and 17 of the Customs Tariff (Identification and Assessment of Safeguard Duty) Rules, 1997, (hereinafter referred to as the rules ) after considering the findings of the Director General (Safeguards) regarding injury caused to the domestic producers of Seamless Pipes and Tubes, imposed on Seamless P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusion entries listed in the notification. 3. The petitioner has also made representations to the Central Board of Excise and Customs (hereinafter referred to as CBEC ) in this regard; however, no decision has been taken thereon. It appears that since the Order-In-Original has been challenged by the petitioner before the appellate forum and the appeal had been dismissed, the CBEC has left it to the statutory authorities under the Customs Act to decide the issue. 4. It is the case of the petitioner that it has entered into a Production Sharing Contract with the Government of India pursuant to which it has been designated as Operator wherein it conducts the petroleum operations at Rajasthan block. The petitioner imports highly specialised goods viz., Patented Premium VAM Top Threaded and Coupled Connection for the purposes of undertaking petroleum operations and time and again is required to import the subject goods. That while it is true that in respect of three bills of entry, the Order-In- Original has been challenged by resorting to the alternate statutory remedy, such remedy is not an efficacious remedy and that the issue is required to be resolved at the earliest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner are not covered by the notification, despite which, the customs authorities have imposed levy of safeguard duty on the goods imported by the petitioner. It was argued that the levy is, therefore, without authority of law and falls foul of Article 265 of the Constitution of India. It was submitted that the present case does not involve a classification dispute but the dispute is as regards whether the goods are covered by the duty. It was submitted that the contention of the respondents that an exemption notification has to be strictly construed is misconceived in the facts of the present case, as the notification in question is not an exemption notification, but is a notification levying safeguard duty. The question involved is whether the goods imported by the petitioner fall within the excluded categories which is not the same as being exempted from payment of duty. It was urged that this being a case of imposition of duty, the subject goods must fall clearly within the levy. 6. On the other hand, Mr. R.J. Oza, learned senior standing counsel for the respondents No.4 and 5 opposed the petition mainly on two counts. Firstly, on the ground that the petition was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any case under section 8A of the Customs Tariff Act as well as the rules, there is no provision for making any clarification as regards the notification issued by the Central Government; the petitioner has an alternative remedy under the Act to apply for reassessment and have recourse to the appellate remedy; merely because a large number of bills of entry may be filed in future is no reason not to avail of the statutory remedy and that the petitioner is required to undergo the statutory remedy prescribed under the Act. It was also submitted that no irreparable injury is caused to the petitioner as in the event it ultimately succeeds, it would be entitled to refund, on the other hand, the amount paid by the petitioner towards safeguard duty would be well utilised for public welfare. It was, accordingly, urged that the petition may not be admitted and no interim relief be granted. 7. In rejoinder, Mr. Joshi, learned counsel for the petitioner submitted that the petition does not involve any disputed question of fact and is a straight question of law involving the issue of interpretation of the notification. The facts are admitted and the fact is that though the base pipes are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude the petitioner from invoking the writ jurisdiction of this court, if other factors are satisfied. As can be seen from the reliefs claimed in the petition, the petitioner has challenged the very jurisdiction of the respondents to levy the safeguard duty on the goods imported by the petitioner. It has been contended that such levy being without jurisdiction is in contravention of the provisions of Article 256 of the Constitution of India. Under the circumstances, when the very jurisdiction of the respondent authorities to levy safeguard duty is under challenge, it cannot be said that the petition under Article 226 of the Constitution is not maintainable. As regards the contention that the petition involves disputed questions of fact and is, therefore, beyond the pale of Article 226, as rightly submitted by the learned counsel for the petitioner, the issue involved in the present case is a pure question of law which requires interpretation of the notification issued by the Central Government and does not involve any question of fact. Therefore, the contention regarding non-maintainability of the petition does not merit acceptance. 10. Having regard to the submissions advanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as well as the Appellate Commissioner and hence, the interim relief would be required to be moulded accordingly to take care of the interest of the revenue. 12. Moreover, having regard to the nature of the project and with a view to prevent multiplicity of similar litigation, this court is of the view that it would be expedient if the CBEC decides the representation of the petitioner without leaving it to the concerned statutory authorities to decide the issue. 13. In view of the above discussion, by way of interim relief, the respondents are directed to allow clearance of the subject goods by the petitioner as and when they are imported, including goods as described at Annexure A to the representation dated 16th December, 2014 (page 459 of the petition) including the subject goods imported under Bill of Entry No.9629824 dated 19th June, 2015, subject to the petitioner furnishing a bank guarantee to the extent of 25% of the duty that may be assessed. The petitioner shall also furnish an undertaking before this court that in case the petitioner ultimately fails in the present petition, they would deposit the entire amount of duty together with statutory interest. The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
