DCW LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) M /s. DCW Limited, represented by its manager (legal and indirect taxation), has sought for writ of declaration, declaring Circular No. -Customs, dated January 31, 2005 as illegal, unreasonable, unconstitutional and ultra vires of Constitution of India and sections 12, 25 and 151A of the Customs Act, 1962 and is also beyond the scope of Notifications No. 45/2002 -Customs, dated April 22, 2002, No. 96/2004 -Customs, dated September 17, 2004, No. 89/2005 -Customs, dated October 4, 2005 read with Notifications No. 104/2005 -Customs, dated December 26, 2005 and No. 32/2006 -Customs, dated March 31, 2006. Mr. S. Renganathan, learned counsel for the petitioner submitted that the petitioner, M/s. DCW limited is a registered company. It is engaged in the manufacture of various excisable products like caustic soda, liquid chlorine, trichloroethylene, PVC resin and upgrade dilmenite (SR) among other heavy chemicals.

(2.) LEARNED counsel for the petitioner submitted that the petitioner is entitled to the benefits under the duty entitlement passbook scheme (DEPB Licence). In exercise of the powers under section 25 of the Customs Act, 1962, the Central Government have issued Notifications No. 45/2002 -Customs, dated April 22, 2002 and No. 96/2004 -Customs, dated September 17, 2004 exempting payment of basic customs duty, additional customs duty, subject to certain conditions. At that time, education cess was not leviable. Similar Notification No. -Customs, dated October 4, 2005 as amended by Notification No. 104/2005 -Customs, dated December 26, 2005 were also issued. Further, Notification No. -Customs, dated March 31, 2006 has been issued extending the facility of duty entitlement passbook scheme up to March, 2007.

(3.) LEARNED counsel for the petitioner submitted that the Ministry of Finance issued Circular No. 345/2/2004 TRU(PT), dated August 10, 2004, clarifying the exemption from levy of education cess, in respect of imports, made under the duty entitlement passbook scheme, which is as follows: