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2023 Supreme(Bom) 498
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. KULKARNI, JITENDRA JAIN, JJ.
P.G. Foils Ltd. - Petitioner
Versus
Director General (Special Safeguards), Department of Revenue & Ors. – Respondents
Writ Petition No.3818 Of 2009 with Interim Application No.3330 Of 2019
Decided On : 23-06-2023
For the Petitioner: Mr. Ankit Totuka.
For the Respondents: Mr. J.b. Mishra a/w. Ms. Maya Majumdar, Mr. Yakshay Chheda.
The absence of rules for assessment and collection of safeguard duty as required by Section 8C(6) of the Customs Tariff Act, 1975 rendered the impugned Customs Notification invalid.
Headnote:
Customs Notification - Safeguard Investigation - Customs Tariff Act, 1975 - Section 8C, Section 8B, Section 3(8), Section 9(7A), Section 9A - Rules for assessment and collection of safeguard duty not framed - Court's interpretation of legal provisions and influence on decision
Fact of the Case:
The petitioner challenged the impugned Customs Notification No.26/2009 dated 23.03.2009 and Preliminary Findings dated 02.02.2009, which recommended provisional safeguard duty on imports of Aluminum Foil. The petitioner contended that no rules were framed for assessment and collection of safeguard duty as required by Section 8C(6) of the Customs Tariff Act, 1975.
Finding of the Court:
The court found that no rules were framed for assessment and collection of safeguard duty as required by Section 8C(6) of the Customs Tariff Act, 1975. The court also observed that the provisions of the Customs Act, Rules, and Regulations were not applicable in the absence of specific provisions making them applicable.
Issues: The issues included the legality of the impugned Customs Notification, the absence of rules for assessment and collection of safeguard duty, and the applicability of provisions of the Customs Act, Rules, and Regulations.
Ratio Decidendi: The court held that the absence of rules for assessment and collection of safeguard duty rendered the impugned Customs Notification invalid. The court also interpreted the legal provisions to determine the applicability of the Customs Act, Rules, and Regulations.
Final Decision: The court directed the respondents to proceed to pass a final assessment order without levying any interest on the assessment. The assessing authority was instructed to hear the petitioner and pass an assessment order expeditiously.
JUDGMENT :
(G.S. Kulkarni, J.)
1. This petition under Article 226 of the Constitution of India was fled on 6th April 2009, praying for the following reliefs:
“(a) That this Hon’ble court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India calling for the records pertaining to the Petitioner’s case and after going into the validity and legality thereof to quash and set aside the impugned Customs Notification No.26/2009 dated 23.03.2009 and Preliminary Findings dated 02.02.2009 (Exhibit “A” & “B”).
(b) That this Hon’ble Court be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ or order or direction under Article 226 of the Constitution of India ordering and directing the Respondents themselves, their officers and subordinates (i) to withdraw and/or cancel the impugned Customs Notification No.26/2009 dated 23.03.2009 and Preliminary Findings dated 02.02.2009 (Exhibit “A” & “B” hereto);
(c) That pending the hearing and final disposal of this Petition, the Respondents by themselves, their officers, subordinates, servants and agents be restrained by an interim order and injunction of this Hon’ble Court from taking any steps or proceedings in pursuance of and/or in furtherance of and/or in implementation of impugned Customs Notification No.26/2009 dated 23.03.2009 and Preliminary Findings dated 02.02.2009 (Exhibit “A” & “B” hereto);”
2. Relevant facts: On 27th January 2009, on the backdrop of an application fled by the domestic industry, Respondent No.1 initiated safeguard investigation on the 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 fled 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 raised by the Petitioner in support of the prayers as made including that no rules were framed by the Respondents, as per the requirement of Sub-section 6 of Section 8C of the Customs Tariff Act, 1975 (for short “the Act”).
5. A Coordinate Bench of this Court on 8th May 2009 heard the parties on the present proceeding on the question of interim relief. Considering the rival contentions and the position in law, an order of the even date was passed by the Court. By such order the present writ petition was admitted and interim orders were granted in favour of the Petitioner, in terms of prayer clause (c), of the petition, in terms of what was observed by in para 7, interalia directing the Petitioner to furnish a bond. The said order reads thus:-
“- Rule. The question is whether the petitioners are entitled to any ad-interim relief. The challenge is to a notification issued under the Customs Tariff Act, 1975, an exercise in sub ordinate legislation. Parties have argued the matter extensively. However, in the absence of pleadings being completed it will not be possible to dispose of the matter finally.
- In so far as interim reli
