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TMI Blog2008 (11) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... o made by the petitioner cannot be entertained or at least could not have been entertained by the Government while considering the matter sympathetically. W.P. dismissed. - 2321 of 1993 - - - Dated:- 20-11-2008 - Badar Durrez Ahmed and Rajiv Shakdher, JJ. [Judgment per : Badar Durrez Ahmed, J. (Oral)]. - The petitioner is aggrieved by the fact that the goods imported by it are being subjected to a higher rate of duty for no fault on its part. The facts are that the petitioner imported inner and outer rings of ball bearings. The goods arrived at the territorial waters of India for berthing at the Madras port on 20-2-1989. The relevant bill of entry under Section 46 of the Customs Act, 1962 was filed on 27-2-1989. It so happened tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it appears to us, prima facie, having regard to the peculiar circumstances of the case, the fact that the delay in berthing was not due to the fault of the petitioner or the vessel, the enormous magnitude of the increase in the rate of duty, the fact that in pursuance of the orders of this Court the goods had not been allowed to be cleared but were kept in a warehouse under the supervision of the customs authorities till recently, and also the fact that the rates of duty have been again slashed so that the petitioners would have to pay a considerably smaller amount of duty if the goods were to be cleared now, that the Government should consider the facts sympathetically and, if possible scale down the duty to a figure bearing a reasonable c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner. The Supreme Court also held, with regard to the contention of the petitioner that Section 15(1) of the Customs Act, 1962 was ultra vires, that the issue was no longer a subject matter of debate, inasmuch as, a Constitution Bench of the Supreme Court in the case of R. Changir Shatusha etc. v. Union of India and Ors: 1989 (3) SCR 356 had upheld the validity of Section 15(1). While concluding the Court directed as under :- "This court, as seen, by order dated August 11, 1992 directed that the respondent may consider the case sympathetically. It is open to the government to consider the same and pass and appropriate order. Subject to the above observations the writ petitions are dismissed out, however, without costs." 6. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Minister of State (RandE), and to say that it has not been found possible to accede to your request." 7. It is this communication that is impugned in the present writ petition. This writ petition has been pending since 1993. In so far as the legal position is concerned, with regard to the applicability and interpretation of Section 15(1) of the Customs Act, 1962, the issue stands settled by the Supreme Court judgment dated 9-12-1992. It is only the question of sympathetic consideration by the Government that remained to be considered inasmuch as the Supreme Court was not aware of the fact that the petitioner's representation had already been rejected. The petitioner had, as mentioned above, filed another representation in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction of the Finance Bill, that is 28th February, 1989. 7. Further in exercise of the power conferred under sub-section (1) of Section 25 of the Customs Act the Central Government issued a notification No. 70/89-Customs dated 1-3-89 which amended notification No. 146/86-Customs dated 26-2-86 providing the effective rates of duty on ball bearing and roller ball bearings and parts thereof. Therefore on the basis of the above-mentioned changes introduced by the Finance Bill and the notification dated 1-3-89 the Customs assessed the Bill of entry and the duty levied has rightly been levied. Further the notification is perfectly valid as the increase in duty came into effect from 28th Feb., 1989 and the taxable event occurred on 2-3-89. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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