ANANT PLASMA PRIVATE LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellants, who were petitioners in Civil Rule No.920 (W) of 1985, by the present application are asking for stay of an operation of an order dated 6th March, 1985, passed by Bhagabati Prosad Banerjee, J. and in the alternative, they have asked for an injunction against the Respondents, from giving effect or any further effect to the said order or to act on the basis thereof and more particularly in the matter of encasing the securities as furnished by the writ petitioners, pursuant to an order dated 30th January, 1985.

(2.) Admittedly, on 30th January, 1985, the writ petitioners, who entered into a contract at Delhi with Lucky Gold stat International Corporation of Seul, South Korea, for purchase of 1000 m. t. P.V.C. Resins, moved this Court in its Appellate Jurisdiction, disputing the determination of assessable value and assessment of Customs and allied duty on the basis thereof, claiming amongst others for a declaration that no duty of customs whether basis or additional or otherwise is livable on the said goods being P.V.C. Resins imported into India and particularly the consignments as stated in the body of the petition save an except to the extent specified in the Notification No.36/83. Cuss. Dated 1st March, 1983 with Notification No.342/76 dated 2nd August, 1975 and the other, prayers were (1) a writ of and/or in the nature of Mandamus do issue commanding and directing the respondents and each of them by themselves, their servants or agents to forthwith (i) desist from levying and/or collecting any duty of customs including additional, countervailing or any other type of duty except to the extent permitted by the Notification No.342/76-Cus. Dated 2nd August 1976, on the consignments of 1000 m.t. of P.V.C. Resins, covered by the Contract annexed as Annexure "A" hereto; (ii) release and/or allow clearance of the consignments of the said goods as stated in the body of the petition upon payment of duty of customs, if any, in terms of the Notification No.36/83-Cus. Dated 1st March, 1983; (iii) desist from levying or collecting any duty of customs, whether basic, additional, countervailing or otherwise, in excess of what is specified in the Notification No.36/83-Cus. Dated 1st March 1983, read with Notification No.342/76-Cus. Dated 2nd August, 1976 of P.V.C. Resins, covered by Contract annexed as Annexure 'A' (2) A writ of and/or in the nature of Prohibition to issue prohibiting the respondents and each of them by themselves their servants or agents, from exercising any further jurisdiction in the matter of levying or demanding or collecting any duty of customs, whether basic, additional, countervailing or otherwise, except in terms of the Notification No.36/83-Cus. Dated 1st March 1983 read with Notification No.342/76-Cus. Dated 2nd August, 1976; (3) Alternatively and in the event of prayers (b) to (d) not being granted, a Writ of and/or in the nature of Mandamus commanding the respondents not to include the amount of basic duty and auxiliary duty in the assessable value of the said goods imported by your petitioners for the purpose of levy and/or determination of the amount of countervailing duty and not to include landing charges and to allow the exemption under the said Notification No.184/76-Cus. in respect of the said goods and to withdraw, cancel and/or rescind the said purported assessment and to act according to law; (4) Alternatively and in the event of prayers (b) not being granted, a writ of and/or order and/or direction in the nature of Certiorari commanding the respondents to transmit and certify the records relating to the said purported assessment relating to the levy and or demand of counter duty, custom duty and auxiliary duty had relating to the inclusion of the packing and landing charges in the assessable value of the said goods and all purported proceedings relating thereto so that the same may be set aside and/or quashed and conceivable justice might be rendered; (5) Alternatively and in the event of prayers (b) to (d) not being granted, a writ of and/or direction in the nature of Prohibition commanding the respondents to forbear from including the basic, customs and/or auxiliary duty in the assessable value of the said goods for the purpose of levy and or determination of the amount of countervailing duty and/or from including the pickings charges, landing charges, freight, insurance charge and any other additional charges in the assessable value of the said goods and/or from levying and/or demanding any countervailing duty at the rates in excess of 75% ad-valor in respect of the said goods; (6) Rule in terms of prayers (a) to (g) above; (7) If no cause or insufficient cause be shown, the Rule be made absolute; (8) An injunction do issue restraining the respondents and each of them by themselves, their servants or agents or otherwise however from levying, collecting or demanding any duty of customs, basic, additional, countervailing or otherwise, save and except to the extent permitted by the Notification No.36/85-Cus. Dated 1st March, 1985 read with Circular No.342/76 dated 2nd August, 1976 on the consignment of 1000 m. t. P.V.C. Resins covered by Contract annexed as Annexure "A" hereto and to allow clearance of the same on payment of 75 per cent ad-valor custom duty as is specified therein until the disposal of the application; (9) An injunction do issue directing the respondents and each of them by themselves, their servants and agents to allow clearance of 500 m. t. of P.V.C. Resins covered by the Contract No.84SSC-024 dated 22nd October, 1984, a copy whereof in annexed hereto and marked with the letter "A' without levying and/or collecting any additional and/or auxiliary duty, upon payment of 75 per cent of the Customs duty only after allowing in the Invoice value the adjustment of the packaging charges and without adding landing charges, freight and Insurance charges for calculation of assessable value of the goods; (10) Ad-interim order in terms of prayers (j) and (k) above.

(3.) On such application, the learned Trial Judge was pleased to a Rule and made the same returnable 6 weeks hence and recorded also, that compliance of Rule 25A of the writ Rule in dispensed with and further directed the mater to appear in the list four weeks hence for orders, upon notice to the Respondents. The learned Trial Judge also ordered that the petitioners would however pay admitted amount of customs duty. There will be ad-interim order of injunction in terms of prayer (k) of the petition upon condition that the petitioner will furnish a bank guarantee to the extent of 50% of the disputed amount of the customs duty in favour of the concerned Collector of Customs and furnish a personal bond for the balance disputed amount. The concerned authorities were directed to release the goods within 3 days from the date of submission of the guarantee bond and a payable of the admitted amount. It was recorded that the petitioners gave an undertaking through their Advocate Shri S. Dube that they will not dispose of their assess until further orders of this Court. In the event the goods are not released within 3 days the concerned Customs Authorities would issue necessary detention Certificate, apart from directing the petitioners to serve a copy of the petition on the Respondents and to file affidavit of service, and gave further liberty to the Respondents to apply for variation and/or vacating the interim order upon notice to the petitioners.