9911796707
TMI Blog2016 (6) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication is allowed for amendment in the writ petition as prayed by Respondent No. 1 and are of the view that the learned Writ Court has not committed any legal error in entertaining the writ petitions and partly allowing it. Appeal allowed - decided partly in favor of appellant. - W.A. No. 6 of 2016 and W.A. Nos. 496, 637 & 639 of 2015, Contempt Appeal No. 1 of 2016 - - - Dated:- 14-6-2016 - P.K. Jaiswal and Vivek Rusia, JJ. Shri Deepak Rawal, ASG, Naman Nagarath, SC S.C. Bagadiya, Sr. Advocate, H. Thakur, Prasanna Prasad and V.K. Jain, Advocates, for the Appearing Parties. JUDGMENT [Judgment per : P.K. Jaiswal, J.]. - By these intra court appeal, the intervenor of W.P. No. 8501/2014 and the respondents are challenging the order dated 19-10-2015 passed in W.P. No. 8501/2014 and 13-9-2015 passed in W.P. No. 9169/2014 [2015 (325) E.L.T. 860 (M.P.)] whereby the learned Writ Court allowed the writ petition and directed that the Commissioner of Customs (Import) shall allow clearance of goods covered by commercial invoice dated 4-9-2014 and 18-9-2014 and the consignment of Alloy Steel and Deformed Bars also forthwith lying in the ports of Mumbai and Chennai. Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular No. 450/176/2014-Cus-IV, dated 7-11-2014 (hereinafter referred to as the impugned Circular ) the goods imported by petitioner had arrived in India at the port of Mumbai. Counsel for the petitioner vehemently urged the fact that this was much before the Steel Products (Quality Control) Second Amendment Order has been made effective. However, respondent No. 3 the Commissioner of Customs disregarded the past practice and refused to clear the goods. Hence, the present petition. 3. Counsel for the petitioner has raised the following grounds challenging the impugned circular dated 7-11-2014. Firstly, Counsel urged that the goods had arrived at the port of Chennai much before the steel products quality control order. The second amendment order has been made after the circular impugned dated 7-11-2014 was in force w.e.f. 4-12-2014. The contract between the parties is dated 24th June, 2014. The schedule of the standing order issued by the Central Government for Steel Quality Control order dated 12-3-2012 was amended vide order dated 31-3-2014 and the goods of the petitioner are covered at Sr. No. 5 of the amended schedule column No. 4. However, local manufacturers of steel prote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion should be raised regarding the application of the Circular which was published at Delhi; to the cause of the respondent as impugned in the writ appeal/petition. It is also submitted that the imported goods are intended for sale within the jurisdiction of this Court, therefore, Indore Court is having jurisdiction to try the case and, therefore, the writ petition is maintainable. Counsel for the petitioner has vehemently urged the fact that Circulars issued by the Central Government can be challenged anywhere in the whole of the country. Moreover, the Circular has also been considered by the Bombay High Court as relied on by the respondent and therefore no question regarding the jurisdiction of this Court in this regard can be raised by the respondent. 7. Per contra Counsel for the respondent has submitted that the constitutionality and legality of the Circular No. 450/176/2014-Cus-IV, dated 7-11-2014, raised by the petitioner is without jurisdiction and would be a matter to be decided by the Division Bench. Moreover, Counsel submitted that the Circular had been issued from New Delhi and the bill of the goods imported by the petitioner dated 13-9-2014 had reached the port in O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in no way prohibits the petitioner from importing of goods and the same does not hold up unnecessarily the consignments . 9. And in this light the important question to be considered is whether the Steel Alloy Deformed Bars would be included in Sr. No. 5? To crystalize the question I find that by the Circular dated 7-11-2014, issued by Govt. of India, Ministry of Finance, New Delhi the relevant factor to be considered in determining the applicability of BIS standard would be the description of the product in the Indian Standard and not the one indicated by the ITC (HS) Code. To put it simply; the import of the said Alloy Steel should be covered by the description of the product in the Indian Standard would require BIS certification and Counsel for the respondent submitted that the impugned certificate has received confirmation from both Ministry of Steel and Bureau of Indian Standards and hence it is applicable to the petitioner. I however find that such is not the present case. So also considering the submissions of both the Counsel; I also find that the explanation to the amended schedule indicates that any case falling under the ITC (HS) Codes notified under the Order shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Circular can be challenged in the present case at Indore High Court also. 12. Although the goods retained at the port of Chennai for want of clearance and have not been transported to Indore and hence part of the cause of action accrues to the petitioner at Indore. It was urged that goods falling under ITC (HS) Codes and duly notified under the Order shall not be restricted if they are not covered by the corresponding BIS Standard in Column (1). However nothing in the said Explanation can be construed to mean that the Order shall be applicable to goods for which no ITC (HS) Codes have been notified at all. 13. Similarly, on considering the question of applicability of the impugned Circular dated 7-11-2014 bearing No. 450/176/2014-Cus-IV and the fact that agreement is dated 24-6-2014 regarding the petitioner s goods have been received at the port in consequence of commercial invoice dated 4th September, 2014, I find that the Circular cannot be applied retrospectively to the consignment of the petitioner and hence in this light also the petition needs to be partly allowed. 14. Consequently the petition is partly allowed and it is directed that the respondent No. 3 shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the alloy steel deformed bars. The goods were exported from China port as per billing of lading on 13-9-2014. As per sales contract (Annexure P/3) the quality of supply was stated as BS4449 : 2005 500B (Boron content 0.0008%) , which means that the goods were complying with the British Standards No. BS 4449 : 2005. 4. As per Customs Tariff Act, non-alloy steel is covered from Headings 7206 to 7217 whereas alloy steel, also defined as other alloy steel in Note 1(f) of Chapter 72 of the CTA, is covered by Headings 7224 to 7229. Chapter 72 is divided into 4 parts. Part-II covers non-alloy steel and Part-IV covers alloy steel. The goods in question are alloy steel and classifiable under Heading 7228 of CTA. When the goods reached to Mumbai airport clearance were refused by the department on the ground that the consignment did not have a prior BIS Certification, which was necessary as per Annexure P/6, dated 12-3-2012 read with Annexure P/7, dated 31-3-2014 and Circular Annexure P/10. Steel and Steel products (Quality Control) second amendment 2012 (Annexure P/6) became effective on 2-9-2012. It deals with steel and steel products which are defined in the Para 2(I) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orresponding entry under column (2), covered under the Indian Standards number mentioned under corresponding entry under column (1) and in such case this order shall not apply to those products which falls under the ITC (HS) Codes mentioned in corresponding entry under column (3) but do not fall under the corresponding Indian Standards mentioned under Column 1. 7. Order dated 31-3-2014 was followed by clarification dated 7-11-2014 (Annexure P/10). The clarification order dated 7-11-2014 was challenged on the ground that entry in the schedule of the control order cannot be re-written or extended by the departmental clarification and by a subsequent circular the department cannot add a new condition to the parent notification. It was argued by the learned counsel for the Respondent No. 1 that if an alloy deformed steel bars are to be included in the relevant control order then it had to be done by amending the schedule to the order itself and not by issuing any departmental clarification. Secondly, no clarification circular can be retrospective that is to say it can t apply to things already done. 8. In the case in hand, when the sales contract dated 27-8-2014 took place, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustry as well as from the angle of safety of infrastructure and housing projects in the country. 4. Bureau of Indian Standards has confirmed that as per Amendment No. 1 to IS 1786 : 2008, the addition of micro-alloying strengthening elements such as Niobium, Vanadium, Boron and Titanium are permitted when used individually or in combination provided the total contents shall not exceed 0.30%. Bureau of Indian Standards has recommended that its clearance should be sought in case importers declare that the re-bars/alloy grade bars/high strength deformed steel bars and wires for concrete reinforcement are not covered under mandatory BIS certification. 5. The Board notes that Ministry of Steel and the Bureau of Indian Standards are mandated to give a ruling on the application of BIS certification on the said imported items. Therefore, in view of the categorical confirmation received from both Ministry of Steel and Bureau of Indian Standards, the relevant factor in determining the applicability of BIS Standard would be the description of the product in the Indian Standards and not the indicated ITC (HS) Code. Further, IS 1786 : 2008 permits the use of Boron and other specified ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recognition meaning in the commercial world and significant place from where the commercial activity of the corporate entity is conducted. All the transactions have taken place from Indore and as per Article 226(2) of the Constitution of India, a writ petition can be filed at any place where a part of the cause of action has arisen. In the case in hand, the acceptance of order was also communicated to the Respondent No. 1 at Indore. The payment of price of the consignment also took place at Indore. A part of the cause of action has arisen at Indore and the Court at Indore has a territorial jurisdiction to entertain this petition. 12. The learned Writ Court relying on the judgment of the Apex Court in the case of Naval Kishore Sharma v. Union of India reported as 2014 (9) SCC 329 came to the conclusion that the applicability of circular dated 7-11-2014 can be challenged at Indore also. The learned Writ Court allowed the writ petition by order dated 30-9-2015 passed in W.P. No. 9169/2014 and directed that the Respondent No. 3 shall allow clearance of the goods covered by commercial invoice dated 4th September, 2014 and consignments of Alloy Steel Deformed Bars also forthwith lyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... = 2001 (134) E.L.T. 596 (S.C.), the Apex Court held that in order to confer jurisdiction on a High Court to entertain a writ petition, it must disclose that integral facts pleaded in support of the cause of action do constitute a cause so as to empower the Court to decide the dispute and the entire or a part of it arose within its jurisdiction. Each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court s territorial jurisdiction unless those facts are such which have a nexus or relevance with the lis i.e. involved in the case. 16. Shri Naman Nagarath, learned Senior Counsel for the appellant in Writ Appeal Nos. 6 and 496 of 2016 has drawn our attention to Paragraphs Nos. 10 to 13 of decision of the Apex Court in the case of Naval Kishore Sharma v. Union of India others reported in (2014) 9 SCC 329 and in the case of Alchemist Limited another v. State Bank of Sikkim others reported in (2007) 11 SCC 335 and submitted that the facts mentioned in the writ petition have no nexus or relevance with the lis involved in the case and Indore Bench of Madhya Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Punjab Haryana, or the Delhi High Court, where the respondents are located. He submitted that there is no concealment or deliberate misstatement of any material fact, to doubt the bona fide mistake, but instead of corporate office , registered office has been mentioned in the writ petition, which was a bona fide mistake, and therefore, they prayed for amendment in the cause title. 20. On due consideration of the averments made in the writ petition and after hearing learned counsel for the parties and the law laid down by the Apex Court in the case of Naval Kishore v. Union of India (supra), we are of the view that part of cause of action had arisen within the territorial jurisdiction of Indore Bench of Madhya Pradesh High Court, and therefore, the learned Writ Court rightly heard the writ petition and granted relief in favour of the respondent. 21. In respect of second issue, whether circular dated 7-11-2014 will apply retrospectively or not, the law is well settled. It is not in dispute that the Government of India is empowered to make amendments with retrospective effect, thereby taking away the rights, which had already accrued in favour of the importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Customs, it is clear that in case of doubt, samples be drawn and tested by the particular agency and clearance be allowed on the basis of test report. Due to the aforesaid reason, Respondent No. 1 also prayed for similar procedure, that samples should be drawn from the product in question and should be tested in the approved laboratory to decide whether the samples meet the BIS specification, so that the spirit of the subsequent clarification order dated 7-11-2014 is fully satisfied. The judgment of the Bombay High Court in the case of M/s. Global Tradex Limited v. Union of India, Writ Petition No. 2907/2014 [2016 (332) E.L.T. 657 (Bom.)], wherein the validity of the notification was challenged, questions involved in the present matter was dealt with by the Division Bench of the Bombay High Court, and thus, we are of the view that the learned Writ Court has not committed any legal error in granting relief to Respondent No. 1. 27. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. In the absence of clear words indicating that the amending Act is declaratory, it would not be so cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
