INDO NISSIN FOODS LTD Vs. APPRAISER OF CUSTOMS

JUDGEMENT

(1.) The first petitioner is the Company, of which the second petitioner is a share holder and Director. The petitioners challenge the assessment order marked Annexure-C which is made on the Bill of Entry for home consumption under the provisions of the Customs act, 1962,( 'the Act 'for short).

(2.) The first relief sought is for a direction to respondents-5 and 6 to disclose the date on which the Official Gazette dated 15.12.90, containing Notifications 285 and 286/90 was put on sale to the public. There is also a prayer to declare Section 15 of the Act, in so far as it permits the levy and collection of import duty based on the rate of duty prevailing at the time of filing of the Bill of Entry, as ultra vires the provisions of Entry 83 of List I to the Seventh Schedule to the Constitution of India. Another relief sought is for a direction to allow the refund application of the first petitioner.

(3.) The relevant facts are that the first petitioner is a manufacturer of all kinds of processed goods and for this purpose it has set-up a factory near Bangalore. The first petitioner-Company imported the processing machinery required for the said factory from Japan. The goods were imported through the vessel Ocean referred in the Writ Petition and the vessel entered Indian Territorial waters on or about 12.12.1990 and arrived at Madras Port on 13.12.90. The import manifest had been filed even prior to the said date before the Madras Customs Authority and thereafter entry inwards was granted by the Customs Authority on 10.12.90. The goods were unloaded from the vessel on 14.12.90 at Madras; however, the goods were consigned to the first petitioner at Bangalore and therefore the goods were transhipped to the Inland Container Depot at Bangalore for unloading and clearance at Bangalore. It is stated by the petitioner that the goods were transhipped to Bangalore by rail on or about 17.12.90 and according to the petitioners the concerned rail receipts and customs sub-manifests, etc. were forwarded by the Customs Authorities to the second respondent who received the same on or about 20.12.90. On 20.12.90 the petitioner presented the Bill of Entry at Bangalore in respect of the goods. There is no doubt that the goods were covered by sub-heading 8476.19 of the Customs Tariff under which the import duty was at the rate of 70%. There is also no dispute that this duty was reduced to 35% by a Notification No.125/86-Cus dated 17.2.86 as amended by Notification No.225/86-Cus dated 27.3.86 as well as Notification Nos. 95/87 dated 1.3.87, 49/88 dated 1.3.88, 304/88 dated 11.11.88, and 65/89 dated 1.3.89. These Notifications were issued under Section 25 of the Act. Under the Finance Act, 1990 an auxiliary duty of customs at the rate of 50% was levied. This was reduced to 5% under Notification No.142/90 dated 20.3.90 and 182/90 dated 31.5.90. On the basis of these Notifications Bill of Entry was presented by the petitioner showing the customs duty as 35% and auxiliary duty as 5%. This was not accepted by the first respondent and the petitioners had to file a Bill of Entry with customs duty at 35% and auxiliary duty at 25%. !t is unnecessary to refer to the mode of payment made to the Japan supplier alleged in the Writ Petition as we are not concerned with the said aspect of the case. An order of assessment was made ultimately altering the relevant entries regarding the value of the imported machinery and auxiliary duty was levied at 25%. The petitioner had to pay the same and get the goods released. Subsequently the first petitioner filed an application seeking refund of the duty paid in excess of the lawful duty payable under Section 27 of the Act. The second respondent issued a show cause notice proposing to reject the application for the reasons stated in the said show-cause notice dated 17.12.91.