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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
RAMESH RANGANATHAN And M. SATYANARAYANA MURTHY, JJ.
Agarwal Industries Ltd. - Appellant
Versus
Union of India & Another - Respondent
W.P. Nos. 19303 & 20536 of 2001
Decided on : 21-06-2016
Customs Act – Section 14(2) – Indian Evidence Act, 1872 – Sections 35 and 38 read with S. 81 – Constitution of India, 1950 – Article 142 and 144 – Notification – Seeking to declare that Notification is valid and enforceable only on when the gazette was made available to the public; and that subsequent Circular, issued by the first respondent clarifying that notification came into effect on and from 03.08.2001 when it was issued for publication in the gazette, is ultra vires Section 14(2) of Customs Act – W.P. is filed seeking a writ of certiorari to quash Notification and to declare order of assessment, passed on strength of the tariff value fixed by the said notification, as arbitrary and illegal – Held, supreme Court is a judicial order, and is otherwise enforceable throughout the territory of India under Article 142 of Constitution – High Court is bound to come in aid of Supreme Court in having its order worked out – While High Court is independent, and is a co-equal institution, Constitutional scheme and judicial discipline requires that High Court should give due regard to the orders of Supreme Court which are binding on all Courts within the territory of India. (singular Constitutional role of the Supreme Court under the Constitution, and correspondingly of the assisting role of all authorities - civil or judicial in the territory of India - towards it, mandates the High Court, which is one such judicial authority covered under Article 144 of Constitution, to act in aid of Supreme Court. The order of the Supreme Court is a judicial order, and is otherwise enforceable throughout the territory of India under Article 142 of the Constitution. The High Court is bound to come in aid of the Supreme Court in having its order worked out – Petitions are allowed
Ramesh Ranganathan, J.
W.P. No.19303 of 2001 is filed seeking a writ of mandamus to declare that Notification No.36/2001-Cus(NT) dated 03.08.2001 is valid and enforceable only on and from 07.08.2001 when the gazette was made available to the public; and that the subsequent Circular No.46/2001 dated 10.08.2001, issued by the first respondent clarifying that the notification dated 03.08.2001 came into effect on and from 03.08.2001 when it was issued for publication in the gazette, is ultra vires Section 14(2) of the Customs Act. W.P. No.20536 of 2001 is filed seeking a writ of certiorari to quash Notification No.36/2001 dated 03.08.2001 and to declare the order of assessment, passed on the strength of the tariff value fixed by the said notification, as arbitrary and illegal.
It would suffice, for the disposal of both the Writ Petitions, if the facts in W.P. No.20536 of 2001 are noted. The petitioner in W.P. No.20536 of 2001 carries on business in the import of edible oils including RBD Palmolein oil. They imported 1009.234 metric tonnes of RBD Palmolein oil of edible grade in bulk at 248 U.S. dollars per metric tonne. A bill of entry for home consumption was filed on 03.08.2001 for the import of these goods. By Notification No.36/2001 dated 03.08.2001, the Central Board of Excise and Customs, Ministry of Finance, Government of India, and in the exercise of the powers conferred on them under Section 14(2) of the Customs Act, fixed the tariff value of RBD Palmolein oil at 372 U.S. dollars per metric tonne. On their being called upon to pay the differential customs duty (difference between 372 U.S. dollars per metric tonne prescribed under Notification No.36/2001 dated 03.08.2001 and the invoice value of 248 U.S. dollars per metric tonne), the petitioner invoked the jurisdiction of this Court contending, among others, that Notification No.36/2001 dated 03.08.2001 came into force only from 07.08.2001; as the bill of entry for home consumption was filed earlier on 03.08.2001, they were not liable to pay customs duty at the tariff value, fixed under Notification No.36/2001, of 372 U.S. dollars per metric tonne; and they had rightly paid customs duty on the invoice value of 248 U.S. dollars per metric tonne.
Sri G.L. Rawal, Learned Senior Counsel appearing on behalf of the petitioner, would submit, placing reliance on the judgment of the Supreme Court in Union of India v. Param Industries Ltd., that Notification No.36 of 2001 came into force only with effect from 07.08.2001 and, consequently, the tariff value prescribed under the said notification cannot be applied retrospectively on the goods imported earlier on 03.08.2001; as the very same notification has been held by the Supreme Court to have come into force on or after 06.08.2001, the respondents cannot apply the tariff value prescribed under Notification No.36 of 2001 to goods imported on 03.08.2001; reliance placed on behalf of the respondents, on the Division Bench judgment of this Court in M/s. K.G.F. Cotton Pvt. Ltd v. Union of India (Judgment in W.P. No.18440 of 2001 and batch dated 20.02.2013), is misplaced; the judgment of the Karnataka High Court in Param Industries Ltd v. Union of India was affirmed by the Supreme Court in Param Industries Ltd.[2015 (321) E.L.T. 192 (S.C.)] it is evident, from the facts noted in Param Industries Ltd.[ 2002 (150) E.L.T. 3 (Kar.)], that Notification No.36/2001 could only have been published in the Gazette of India on or after 06.08.2001; and, since the bill of entry for home consumption is dated 03.08.2001, the tariff value of RBD Palmolein oil, as prescribed in Notification No.36/2001, should not have been applied to this earlier import of RBD Palmolein oil.
On the other hand Sri P.S.P. Suresh Kumar, Learned Standing Counsel for Central Excise, would submit that the Gazette of India notification bears 03.08.2001 as the date on which it was published in the Official Gazette; the said notification must, therefore, be held to have come in
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