INDIAN DYESTUFF INDUSTRIES LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an appeal preferred by the original petitioners in Writ Petition No. 2399 of 1984 challenging legality of judgment dated November 27, 1989 [1990 47 ELT 325 ] delivered by the learned Single Judge. By the impugned judgment, the petition seeking a writ of mandamus directing the respondents not to levy and collect quarterly duty on Ortho Oxylene imported by the petitioners, was dismissed. The facts giving rise to the petition are as follows.

(2.) The appellant No. 1 is a company incorporated under the Companies Act and the company's factory is situated at Baroda where the company inter aliamanufactures Phthalic Anhydride. For the manufacture of the said product, the company requires Ortho Oxylene and that is being imported from time to time. Section 3 of the Customs Tariff Act, 1975 provides for levy of additional duty equal to excise duty and the section provides that any article which is imported into India shall be liable to a duty equal to the excise duty for the time being leviable on the like article if produced or manufactured in India. Sub-section (1) provides that the additional duty to which the imported article shall be so liable, shall be calculated at that percentage of the value of the Imported article. The explanation to sub-section (1) provides that expression "excise duty for the time being leviable on the like article if produced or manufactured in India" means the excise duty for the time being in force which would be leviable on the like article if produced or manufactured in India. The explanation further provides that where such duty is leviable at different rates, the highest duty is to be taken into consideration. The company imported Ortho Oxylene in India in the year 1985 but before the import, filed Writ Petition No. 2399 of 1984 in this Court on November 24, 1984 claiming that the Collector of Customs should not levy and collect countervailing duty on Ortho Oxylene to be imported by the company. The company claimed that in view of Notification No. 276/67, dated December 21, 1967 issued by the Government of India in exercise of powers conferred under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 the excise duty payable on goods falling in Tariff Item Nos. 6 to 11 of the First Schedule is totally exempted. The company claimed that as the excise duty is totally exempted, it is not open for the Collector to levy countervailing duty. Reliance was placed on the decision (Century Enka Ltd. and Ors. V/s. Union of India and Ors, 1982 10 ELT 64).

(3.) Before the Petition came up for hearing before the learned Single Judge in year 1989, a Division Bench of this Court in the decision (Ashok Traders v.Union of India,1987 32 ELT 262) held that the advantage of exemption Notification No. 276/67 is not available without fulfilment of the conditions prescribed under the said Notification. In view of the decision of the Division Bench, the company gave up the claim that additional duty is not leviable by Reference to Notification No. 276/67. The company thereupon amended the Petition and by paragraph 14 claimed that the additional duty is not payable in view of Notification No. 89/82, dated March 25, 1982. The learned Single Judge held that the claim based on Notification No. 89/82 is not sustainable and dismissed the petition. The order of the learned Single Judge is under challenge.