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TMI Blog2023 (6) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... h June 2010, the Respondents are yet to pass a final assessment order. However in the intervening period there was a self-assessment as made by the Petitioner in the year 2017, in pursuance of which the Petitioner deposited duty amounting to Rs. 97,44,034/-. When the interim protection granted to the Petitioner continuous to operate the only apprehension of the Petitioner, today is that although the Respondents may take forward the matter to pass a final assessment order, however, in the peculiar facts and circumstances of the case and more particularly in view of the interim order passed by this Court dated 8th May 2009, as modified by order dated 11th June 2010, in the final assessment order which may be passed, the Petitioners ought not to be subjected to the levy/payment of interest. Such apprehension of the Petitioner is in the light of the letter of Assistant Commissioner (H) dated 28th March 2017, addressed to the Petitioner a copy of which has been placed on record. This is certainly not a case where the Petitioner ought to be foisted with interest under Section 28AA of the Customs Act as made applicable by Sub-section 5A of Section 8C of the Customs Tariff Act. It ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e imports of Aluminum Foil vide Notification No. D-22011/46/2008 dated 27th January 2009. By such application, the domestic industry had requested for imposition of safeguard duties of at least 50% for a period of four years from the date of imposition, on imports of such goods. 3. Pursuant thereto on 2nd February 2009, Respondent No. 1 issued preliminary findings, which according, to the Petitioner were made sans an opportunity of a hearing to the Petitioner and the other interested parties. In such circumstances, Respondent No. 1 took steps to have a public hearing. The Petitioner also filed its submission on 30th March 2009 before the deadline as prescribed. The Petitioner, however, contends that without addressing the issues as raised by the parties who were be pre-judicially affected, the impugned Notification came to be issued recommending provisional safeguard duty @ 21% ad-valorem on all goods falling under the heading 7606 (Aluminium Flat Rolled Products) and at the rate of 35% ad-valorem on all the goods falling under heading 7607 (Aluminium Foil). 4. On the above backdrop, the Petitioner approached this Court in the present proceedings. Several contentions are rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for safeguard duty may be identified and for the manner in which the causes of market disruption or causes of threat of market disruption in relation to such articles may be determined and for the assessment and collection of such safeguard duty disruption in relation to such articles may be determined and for the assessment and collection of such safeguard duty. 3. Pursuant to this provision Rules have been framed known as Customs Tariff (Transitional Product Specific Safeguard Duty) Rules, 2002. deciding market These are Rules for the purpose of disruption which is an essential requirement for the purpose of imposing safeguard duty. Power is conferred on the Director General to verify all relevant factors for the purpose of investigation to determine critical circumstances for market disruption. The argument advanced on behalf of the petitioner is that though under Section 8C(6) power has been conferred on the Central Government to make Rules for assessment or collection such safeguard duty such Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered if Section 12 of the Customs Act was the only charging Section in respect of duties imposed on import of goods. Considering, however, the decided case law in our opinion it is not possible to accept the said contention. Secondly no provisions of a legislation ought normally to be read as otiose. In the case of Hyderabad Industries Ltd. vs. Union of India, 1999 (108) E.L.T. 32 (S.C.) a similar argument was advanced on behalf of the respondent that Section 12 of the Customs Act is the charging Section. The law as it then stood was as explained in the judgment of the Supreme Court in Khandelwal Metal Engineering Works v. Union of India, 1985 (2) E.L.T. 222 (S.C.), when Section 12 was held to be the charging section for customs duties. The Supreme Court, however, in Hyderabad Industries Ltd. (Supra) was pleased to hold that the charging Section under the Customs Tariff Act, 1975 for the purpose of levying additional duty under subsection (3) is not Section 12 of the Customs Act, but Section 3 of the Customs Tariff Act, 1975. The view taken in Khandelwal Metal Engineering Works (supra) was consequently held not to be the correct law. 4. In Sneh Enterprises v. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of calculating or arriving at the taxable turnover and for levying tax. We have referred to this judgment as a submission was made on behalf of the petitioners in answer to the contention raised on behalf of the respondents that if ultimately the Respondent Government does not issue the Notification under Section 8B the petitioner would be entitled to refund of the safeguard duty. 7. Our attention is also invited to the orders passed in other jurisdictions in the nature of interim measures like Section 8C. As noted earlier as there is no machinery for collection and assessment of tax it will not be possible for the respondent Customs Authorities to recover the safeguard duties. Under these circumstances we are of the opinion that the petitioner would be entitled to interim relief in terms of prayer clause (c). However, at the same time the respondent Nos. 1 to 3 cannot be left at the mercy of the petitioner if they seek to import the goods from China. In our opinion to protect the Revenue the petitioners be called upon to furnish bond for the amount in usual terms, but without security. For the aforesaid reasons the following order:- (i) It will be open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed by the Petitioners. (8) On this backdrop, considering the parameters for the grant of interim relief, we find that the issue sought to be raised in the petitions needs consideration. The Petitioners have made out prima-facie case. The interim orders are already operating in their favour since May, 2009. In our considered view, end of justice would be met by directing the Petitioners to furnish additional security by way of bank guarantee to the extent of 50% of the amount covered by the bonds in addition to the bonds already executed by them, which shall also continue to operate during the pendency of the petition. With this slight modification in the interim orders dated 8 th May, 2009, both civil applications stand disposed of with no order as to costs. (emphasis supplied) 8. On the above backdrop, the proceedings are before us today for final hearing. 9. We have heard learned counsel for the parties and with their assistance, we have perused the record. 10. It is not in dispute that the proceedings have remained pending as they stood on 11th June 2010, that is when the Court passed the modified interim order. Never an application was made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act as made applicable by Sub-section 5A of Section 8C of the Customs Tariff Act. It may be observed that the Respondents also, were in no manner aggrieved by the self-assessment as undertaken by the Petitioner under which duty was paid. Moreover, a final assessment order is yet to be passed, even assuming that the Respondents are of the opinion that the interim orders would come in the way of the Respondent in passing an assessment order. It was open to the Respondents to move this Court to permit them to pass an assessment order, which was never resorted to. We may also observe that a Division Bench of this court in case of Commissioner of Customs (Import) Vs. Jain Exports Pvt. Ltd. and Another 2012 SCC OnLine Bom 720 while confirming the observations of the tribunal has held that for Section 28AA to be applicable duty has to be first determined under Section 28(2) of the Act. 14. Be that as it may, the situation needs to be balanced, on one hand, any order passed by the Court ought not to cause any prejudice/damage to the Petitioner and on the other hand as observed above the interim orders passed by this Court never precluded the Respondents from approaching the Cou ..... 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