COROMANDEL FISHERIES Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THE petitioner is a firm engaged in the business of exporting marine sea foods.For the purpose of initial setting up of a Freezer Plant in the factory at Paliuruthy,the petitioner imported an Amerio Plate Freezer cabinet with freezing plates.The petitioner claims that such import was covered by an exemption certificate dated 16th March 1971 issued by the Director of Industries and Commerce,Trivandrum.The petitioner's case is that though a freezer plant had to be set up the entire freezer lant could not be imported by the petitioner on account of the limited foreign exchange sanctioned.The freezer lant to be set up required park such as condensing unit,ompressor motor pump and cooling tower.These essential arts were not imported as they could be obtained from adigenous manufacture.The freezer was allowed clearance on payment of duty at 10 per cent under item 72(25)of the indian Customs Tariff with countervailing duty at 40 percent plus 33 1/3 percent under item 29A(1)Central Excise Tariff.The essential spare parts were allowed clearance on assessment with countervailing duty.The petitioner firm applied for refund of countervailing duty on the ground hat such duty was collected in excess.This claim was rejected by the Assistant Collector of Customs on the ground that the goods were not exempt from countervailing duty and the assessment already made was in order.The order was taken up in appeal before the Appellate Collector of Customs,who by his order,Ext.P -6,held that the freezer plant for which the contract freezer was imported or the purpose of assembly,did not attract the levy of countervailing duty ;.Consequential refund of the duty vas directed to be made to the appellant.This order,Ext.P -6,was suo motu sought to be revised and was so revised by the Government of India by Ext.P -12 order after service of a show cause notice to the firm and after considering its reply.This order is under challenge in this original petition.

(2.) ONE of the contentions raised concerns the justification for the imposition of countervailing duty.It is not necessary to go into this question for the reason that the contention raised before me that the action for revision of Ext.P -6 order was initiated out of time has to be found in favour of the petitioner and if so that would be sufficient for the disposal of this petition. Section 131 of the Customs Act,1962 reads: