SIMPLEX CASTINGS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONERS are Public Limited Companies having their plants or factories in Raipur of Madhya Pradesh State. They seek declaration that provisions of Section 15 (1) (b) of the Customs Act, 1962 (for short 'the Act') "and the notifications dated 15-12-1990 are constitutionally invalid, writ of certiorari quashing the demand of auxiliary duty at the increased rate of 25% under the notifications and seek to command respondents to charge auxiliary duty at the rate of 5% only as existed prior to 15-12-1990. On behalf of the respondents, returns have been filed.

(2.) THE petitioners import scrap materials from abroad. The goods reach India and are off-loaded at Vishakhapatnam Port. The Act contemplates two broad categories of goods which enter India. First category of goods are those which are imported for purposes of transit or transhipment for which no duty or auxiliary duty is payable. Second category are of goods not intended for transit or transhipment. The latter category of goods is again categorised into two sub-categories in regard to which separate kinds of bills of entry are to be presented to the proper officer. One is bill of entry for "home consumption" and the other is bill of entry for "ware-housing". Different forms are prescribed for the purposes. The petitioners presented bills of entry for "ware-housing". The goods were kept in the bonded ware-house. Petitioners got release of part of the goods before 15-12-1990, paying excise duty and also auxiliary duty prevalent at the relevant time. The auxiliary duty payable was 5%. The controversy relates to the interpretation of Section 46 and application of Section 15 (1) (b) of the Customs Act. Under Section 15 (1) (a), in case goods enter for "home consumption" under Section 46, the rate of duty shall be as on the date on which the bill of entry in respect of the goods is presented under that section. Under Section 15 (1 ) (b), in case of goods cleared from a warehouse under Section 68, the rate of duty shall be as on the date on which the goods are actually removed from the ware-house. In the present case, the petitioners sought to remove the remaining goods from warehouse after 15-12-1990. Therefore, demand was made for payment of enhanced auxiliary duty. According to the petitioners, import of scrap was made for the purpose of processing and manufacture in the factories in Raipur and hence the goods were imported for "home consumption" and, therefore, Section 15 (1) (a) would apply. Alternatively, it is contended that in case Section 15 (1) (b) is held to be applicable, provision is unconstitutional.

(3.) WHEN these cases came before us yesterday, learned counsel for respondents submitted that the respondents desire to raise two preliminary objections. One relates to lack of territorial jurisdiction and the other relates to the existence of an effective alternative remedy. The petitions having been admitted, effective interim orders having been passed, petitioners having made available-bank guarantees in accordance with the directions of this Court and the goods having been cleared, we do not think the writ petitions deserve to be dismissed on account of existence of alternative remedy.