JUDGMENT

1. This appeal is directed against the order of the High Court of Delhi dismissing the appellants writ petition made under Article 226 of the Constitution seeking exemption under Section 25(2) of the Customs Act on the import of caustic soda, as granted to another importer namely, the State Chemicals and Pharmaceuticals Corporation of India Ltd.

2. The State Chemicals and Pharmaceuticals Corporation imported caustic soda under the Import Licence, duty on caustic soda was payable at the rate of 92 per cent. The Central Government by its order dated September 20, 1979 granted exemption to the importer under Section 25(2) of the Act permitting it to import the caustic soda on payment of 10 per cent duty instead of 92 per cent, on the ground that there was shortage of caustic soda in the market and if the full duty was paid at the rate of 92 per cent the cost of the goods would be very high in the market which would not be in public interest. The appellant, who is an importer also imported caustic soda during the same period but it was directed to pay duty at the rate of 92 per cent. The appellant filed a writ petition before the High Court challenging the discrimination meted out to him by the government. The appellant claimed relief for the grant of same treatment as was granted to the State Chemicals and Pharmaceuticals Corporation of India in the matter of payment of duty on the import of caustic soda and in the alternative the appellant claimed relief for quashing the notification granting exemption in favour of the respondent-Corporation. The High Court dismissed the writ petition. Hence this appeal.

3. During the pendency of the writ petition, no counter-affidavit was filed on behalf of the Union of India. Even before this Court no counter-affidavit was filed on behalf of the Union of India justifying the circumstances which may have persuaded it to grant exemption in favour of the respondent-Corporation. This Court adjourned the hearing on several dates to enable the Union of India to file counter-affidavit but no affidavit was filed. In the absence of any counter-affidavit it is difficult to ascertain the reasons which may have persuaded the government to discriminate the appellant. In fact during the course of arguments learned counsel for the Union of India fairly conceded that in the absence of any affidavit on behalf of the Union of India, it is not possible for him to justify the discrimination, although he contested the appellants claim. In this view, having regard to the facts and circumstances of the case and specially the fact that no affidavit has been filed on behalf of the Union of India, we are of the opinion that the appellant is entitled to the same treatment as was granted to the State Chemicals and Pharmaceuticals Corporation of India in the matter relating to payment of duty on the import of caustic soda. We, accordingly, allow the appeal, set aside the order of the High Court and direct the respondent to charge duty from the appellants on the caustic soda imported by them at the same rate as charged from the respondent-Corporation. If it is found that the appellant has paid any excess in amount the same shall be refunded to the appellant within two months.

4. Since, we have granted relief to the appellant in view of the peculiar facts and circumstances of the case, this decision shall not be treated as precedent. There will be no order as to costs.

For Citation : 1992 Supp (2) SCC 235.