BINANI CEMENT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) THOUGH this petition contains several prayers, principally the grievances of the petitioner are two fold. Firstly, the petitioner challenges a notice dated March 26, 2013 as at annexure D to the petition, in which the Commissioner of Customs, Kandla has called upon the petitioner to show cause why the petitioner's classification of the imported coal as steam coal not be rejected and the same be classified as bituminous coal. On such basis, the Commissioner called upon the petitioner to show cause why:

(2.) WITH respect to the impugned show -cause notice, the counsel vehemently contended that the same has been issued in total disregard to the relevant facts. He contended that the petitioner has been importing steam coal for its power plant and other requirements since many years. The petitioner has, all throughout, declared such import as steamed coal and such declarations have been accepted by the customs authorities. He further submitted that in terms of the Finance Minister's speech in Parliament on March 17, 2012 the Government of India had issued exemption Notification No. See, [2012] 14 GSTR (St.) 28 exempting imports of steam coal from payment of basic customs duty and limiting the additional customs duty at one per cent. He contended that only in order to deprive the petitioner of such benefits flowing from the said exemption notification, the Department has issued the impugned show -cause notice in which the stand of the Department is that the coal imported by the petitioner is bituminous coal and not steam coal. In paragraph 16 of the notice, the Department has asserted that the petitioner had knowingly made a misdeclaration declaring the import as steam coal instead of bituminous coal. He submitted that there was no misdeclaration on the part of the petitioner. Full details were provided to the Department.

(3.) IN the case of Commissioner of Customs and Central Excise v. Charminar Nonwovens Ltd. reported in : [2004] 3 RC 9 : [2004] 136 STC 356 (SC) : [2004] AIR SCW 3122 the Department had challenged the excise judgment of the High Court. There was a dispute between the manufacturer and the Department with respect to classification of certain goods. The Department had issued a detention order and also a show -cause notice why the same may not be classified under a particular sub -heading. The manufacturer filed a writ petition before the High Court challenging the show -cause notice and the detention order on the ground that on an earlier occasion on similar adjudication the appellate authority had upheld the claim of the assessee. The High Court allowed the petition. The Supreme Court in appeal held and observed as under (page 10 of 3 RC):