INDO SOLEX LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) The present Rule was issued on 22.5.81 at the instance of the petitioner Indo-Solex Limited, a Company and by a shareholder being petitioner No. 2 prayed inter alia for a Writ of Mandamus commanding and directing the Respondent Nos. 1, 2 and 3 not to demand and/or realize customs duty on the edible oils to be imported by the petitioner Company under the contract referred to in paragraph 4 of the writ petition on the ground that there were no materials before the Central Government on which it could have been satisfied that it was necessary in the public interest to grant the exemption for payment of custom duty by the said impugned notifications only in case of imports into India of edible oils by the National Dairy Development Board. It is alleged that in or about February 1981, the petitioner No. 1 Company entered into a contract with Messrs Edible Products Limited of Singapore for purchase and import of 500 Metric Tons of Cordon Oil Crude on the terms and conditions in the sales confirmation note. It is alleged that the notification dated 1st April, 1980 as amended on 24th October, 1980 discriminates between the National Dairy Development Board on the one hand and an importer like the petitioner Company on the other. It is further alleged that such a classification is without any rational basis or reasonable criteria. Such classification, according to petitioners, is arbitrary and whimsical. The grievance of the petitioners is that while they are subjected to a hostile and discriminatory treatment in the matter of import of edible oils, whereas National Dairy Development Board is exempted from payment of any duty.

(2.) Mr. Bhaskar Gupta appearing with Dr. Samir Chakraborty argued that the impugned notification offends the fundamental rights of the petitioners as guaranteed under Article 19(1)(g) of the Constitution. They have laid much emphasis to the fact that the Government is bound to act fairly and uniformly in its dealings and the Government is bound to extend the petitioner Company all its fair dealings and the Government is bound to extend benefit to the petitioner Company to save it from customs duty as it is extended to National Dairy Development Board. Mr. Gupta submitted further that the Respondent No. 4 National Dairy Development Board is a Society registered under the Societies' Registration Act and it cannot enjoy any special privilege and there is clear discrimination and the rights of the petitioners have been affected and Article 14 of the Constitution has been offended. A Rule was issued on 25.8.1981 and an interim order was made in terms of prayer (viii) of the writ petition which includes the prayer to restrain the respondents from assessing, realizing or demanding any custom duty on edible oils imported or to be imported by the petitioner Company under the contract as referred to in paragraph 4 of the writ petition or any other similar contract or contracts upon the petitioners upon furnishing bank guarantee for the amount of 50% of the duty in respect of the consignment to the satisfaction of the Collector of Customs. The said order further provided that the Collector will approve the form within 3 (three) days from the date of submission of the said form for furnishing bank guarantee as aforesaid. Subsequently, an application was made for modifying the interim order and upon the hearing the learned lawyers of the respective parties, the interim order was modified by order dated August 11, 1981 to the extent that in addition to the bank guarantee already required to be furnished by the petitioner to cover 50% of the duty payable on the imported goods, the petitioners shall furnish for the balance 50% of the duty payable on the said goods, a Bond to the satisfaction of the Collector of Customs with one surety of the like amount. The Collector will be at liberty to accept any surety offered by the petitioner Company. From the application for vacating the interim order, it transpires that the Government of India under Notification No. 65-CUS/80 dated 1st April, 1980 and Notification No. 208-CUS/80 dated 24.10.80 has allowed import by the National Dairy Development Board in respect of certain quantity of edible oil as duty free. The said notifications were issued granting exemption of duty to the National Dairy Development Board only for those edible oils which are imported in terms of the specified agreement the Board, the Respondent No.4 and the Co-operative Units of Canada and Co-operative League of USA. For this edible oils specific permission for importation was given to the Respondent No. 4. The Board was to import only against the specific agreement. It is further placed on record that in fact, the petitioners are desirous to import Cordon Oil Crude, the raw materials for the manufacture of edible oils and Vanaspati and not edible oils as being imported by National Dairy Development Board.

(3.) At the time of final hearing of the Rule no further affidavit has been filed on behalf of the respondents. Be that as it may, the only question has been raised before this Court as to whether there can be discrimination to except customs duty in case of importing edible oil. A specific allegation made that while the Respondent No. 4 National Dairy Development Board is given certain privileges the petitioner No. 1 Company is denied and there is unfair competition and discriminatory treatment. The attention of the Court has been drawn to the language of Article 19 (1)(g) which indicates inter alia that all Citizens shall have the right to practise any profession or to carryon any occupation, trade or business. It is also seen from Article 19(6) that nothing in sub-clause (g) of the said Clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law, imposing in the interest of the general public, with reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it to, or prevent the State from making any law relating to-