WIPRO LIMITED Vs. ASSISTANT COLLECTOR

JUDGEMENT

(1.) W.A.No.1079 of 2000: The petitioner in writ petition No.7693 of 1993 sought for the relief of declaration or any other appropriate writ or order or direction under Article 226 of the Constitution of India declaring that the proviso (ii) to Rule 9(2) inserted by Notification No.39/90 dated 5.7.1990 issued by the third respondent, the Union of India, represented by the Secretary, Ministry of Finance, Department of Revenue, New Delhi as invalid, arbitrary and ultra vires Sections 14(1) and 14(1A) of the Customs Act, 1962 and violative of Articles 14 and 19(1)(g) of the Constitution of India.

(2.) The petitioner engaged in the manufacture and marketing of Mini and Micro Computer systems and peripheral devises like printer, drivers, etc., inter alia imported various components including software from time to time. The petitioner presented a bill of entry No.15020 dated 15.4.1993. The chargeable weight of the consignment was 315 kgs and the actual loading, unloading and handling charges amounted to Rs.65.40ps as per the tariff of the International Airport Authority of India, Madras. However, the first respondent on the basis of the impugned notification added a sum of Rs.15,214.69ps to the value of the goods as handling charges. The differential duty as a result of considering the notional handling charges instead of actual handling charges amounted to Rs.16,209.20ps instead of Rs.69.98ps. The petitioner is aggrieved by the addition of handling charges at the notional rate pursuant to proviso (ii) to Rule 9(2) of Customs Valuation (Determination of Price of Imported Goods) Rules, 1988, as amended by Notification No.39 of 1990 dated 5.7.1990, whereby the charges for loading, unloading and handling associated with the delivery of the imported goods at the place of importation had been fixed to be one percent of the free on board value of the goods plus the cost of transport of the imported goods to the place of importation plus cost of insurance. The attack on the amended proviso (ii) to sub-rule (2) of Rule 9 of Customs Valuation (Determination of of Price of Imported Goods) Amendment Rules, 1990 is that the notional fixation of one percent of handling charges calculated on the C.I.F. value irrespective of the nature of goods, size of the cargo in total disregard to the actual handling charges, even when the same is ascertainable, is irrational, arbitrary and violative of Article 14 of the Constitution of India and ultra vires to Section 14(1) and 14(1A) of the Customs Act.

(3.) The above writ petition along with another writ petition in W.P.No.7694 of 1993, wherein the relief of mandamus directing the respondents therein to forbear from demanding customs duty on loading, unloading and handling charges other than as per schedule of charges for levy of handling charges on imported consignments issued by the International Airport Authority of India, Madras by invoking or relying upon Notification No.39/90 dated 5.7.90 of the third respondent substituting proviso (ii) to Rule 9(2) of the Customs Valuation (Determination of price of Imported Goods) Rules, 1988, has been prayed for, were dismissed by the learned Single Judge of this Court by Order dated 19.4.2000 by observing that the learned counsel for the petitioner had brought to the notice of the Court a decision of Karnataka High Court in W.P.No.4150 of 1991, wherein the challenge made to the very provisions had been negatived. As against the said Order, the present writ appeal is filed.