The central legal point established in the judgment is that the imposition of 1% EDD on imports must be justified in the presence of a valid SVB order and in accordance with relevant circulars.

B. P. Colabawalla J.

Rule, by consent of the parties made returnable forthwith and heard finally.

1. The grievance made by the Petitioner in this Writ Petition under Article 226 of the Constitution of India is against the action of Respondent Nos.2 to 5 in loading 1% Extra Duty Deposit (“EDD”) on the imports made by the Petitioner and/or their purchasers, and against the action of Respondent Nos.4 and 5 to withhold out of charge order unless 1% of EDD is paid under Bills of Entry No.593135601 dated 26th June 2014 and Bill of Entry No.5626428 dated 27th May 2014.

2. The learned counsel appearing on behalf of the Petitioner submitted that charging of 1% of EDD by Respondent Nos.4 and 5 despite the SVB order dated 23th June 2014 being brought to the notice of Respondent No.3 along with the conditions of the Circular No.11/2001-Cus dated 23rd February 2001 that 1% EDD cannot be recovered once the decision is given by the Special Valuation Branch (“SVB”), or where no SVB order is passed there on the expiration of four months from the date of filing of the reply to the questionnaire, is arbitrary and contrary to the said circular as well as the judgment of this Court in the case of M/s.Skoda Auto India Pvt Ltd v/s Union of India reported in 2010 (255) ELT 63 (Bom). He therefore submitted that this was a fit case for interference by this Court under Article 226 of the Constitution of India.

3. The brief facts relating to the present controversy are that, the Petitioner is an Indian Entity of the global operations of the DuPont group. By virtue thereof, the Petitioner imports several goods from various related parties within the meaning of Rule 2(2) of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007. In view of the relationship between the Petitioner and its affiliates, a reference was made to the Special Valuation Branch, Chennai for a detailed investigation on the valuation of their imports from their foreign associated enterprises. In the case of the Petitioner, the SVB orders were passed from time to time. The latest being 23th June 2014. The details of the same are set out hereunder:-

S. NO. Order No. and date When applicable

1 Order in Original No. 96/99/Group/Cr.SVB dated 11.02.1999 Till 10.02.2002

2 Order No.1442/2004 dated 10.02.2004 From 11.02.2002 to 09.02.2007

3 Order No. SVB/ Cus/ Review/1/Pu/2007 dated 10.04.2007 From 10.02.2007 to 09.04.2010

4 Order No. SVB/CUS/ Review/HS/19/2010 dated 25.11.2010(Set aside by the Hon'ble High Delhi Court From 10.04.2010 till 24.11.2013(subject to modification by superior authorities)

5 Order No.SVB/CUS/Review/HS/24/2010 dated 21.02.2011 From 21.02.2011 till 20.02.2014

6 Order of this Hon'ble High Court in WP No. 2911 dated 28.03.2014 Directions to Respondent 5 to pass an appropriate order after considering submissions of the Petitioner within 3 months.

7 Order No.SVB/CUS/REVIEW/SS/07/19422 dated 23.06.2014 passed by Respondent 5 in compliance with this Hon'ble Court directions Directions to Respondent 5 to pass an appropriate order after considering submissions of the Petitioner within 3 months.

4. The said SVB orders clearly contemplated that every order shall be in force for three years from the date of its passing unless the facts undergo any change. The orders also mention that any person aggrieved (which would include Revenue) with the SVB order may file an appeal under Section 128 of the Customs Act. Thus, till 9th April 2010, the SVB order dated 10th April 2007, set out above, was in force and for the subsequent period the case was taken up for review of the assessable value or renewal of the earlier order. Thereafter, a SVB order dated 25th November 2010 was passed and it was held that consideration paid under the Product License and Continuing Technical Support Agreement was to be added to the import price for customs duty purpose. That apart, the said order made this addition effective from 1st June 2001. Being aggrieved by this, the Petitioner ch