2025 (4) TMI 1077 - HC - Customs

Gujarat HC declines to resolve Solar Heat Strengthen Glass classification dispute, directs petitioner to pursue section 128 remedy through appellate authority

M/s. Renew Photovoltaics Private Limited Versus Principal Commissioner Of Customs & Ors.

Gujarat HC dismissed the petition challenging classification of imported Solar Heat Strengthen Glass for Solar PV Modules under CTH 70071900, holding that ... Maintainability of petition - availability of alternative remedy of appeal - Classification of imported goods - Solar Heat Strengthen Glass for Solar PV Modules - to be classified under CTH 70071900 or not - HELD THAT:- This petition need not be entertained as there is alternative efficacious remedy provided under section 128 of the Act. The petitioner is required to file appeal challenging the impugned final assessment of Bill of Entry before the appellate authority under section 128 of the Act. Whether the goods imported by the petitioner under description “Solar Heat Strengthen Glass for Solar PV Modules” was ‘textured/tempered glass’ is a mater of disputed question of fact more particularly when the petitioner has classified the goods under CTH 70071900 depending upon the verification of the goods imported by the petitioner. Merely because similar goods imported by the petitioner have been classified as ‘Solar Heat Strengthen Glass’ in place of “Textured/Tempered Glass’ or vice versa, it cannot substitute the degree of proof required to hold that the present consignment or for that matter, all the different consignments of the petitioner are “Solar Heat Strengthen Glass” and not “Textured/Tempered Glass” be considered in absence of case records which would be available with the appellate authority. It is refrained from exercising extraordinary powers under Article 226 of the Constitution of India as the contention raised by the petitioner that there is no jurisdictional fact before the respondents to assume jurisdiction which requires this Court to exercise powers under Article 226 as the facts on record, as pleaded by the petitioner along with documents are required to be adjudicated under section 128 of the Act. Conclusion - This petition need not be entertained as there is alternative efficacious remedy provided under section 128 of the Act. The petitioner is required to file appeal challenging the impugned final assessment of Bill of Entry before the appellate authority under section 128 of the Act. Petition dismissed. 1. ISSUES PRESENTED and CONSIDEREDThe core legal questions considered by the Court in this matter are:(a) Whether the impugned Bill of Entry No. 8641639 dated 01.03.2025, assessed with levy of Countervailing Duty (CVD), was without jurisdiction, arbitrary, perverse, patently illegal, and violative of Articles 14 and 265 of the Constitution of India;(b) Whether the goods imported under the description 'Solar Heat Strengthen Glass for Solar PV Modules' fall within the scope of levy of CVD under Notification No. 03/2021-Customs (CVD) dated 09.03.2021, or are exempt as they are not 'textured/tempered glass' under CTH 70071900;(c) Whether the petitioner was entitled to a writ of certiorari quashing the impugned assessment and mandamus directing reassessment excluding CVD;(d) Whether the petitioner could invoke the writ jurisdiction under Articles 226/227 of the Constitution of India instead of availing the alternative remedy of appeal under Section 128 of the Customs Act, 1962;(e) The applicability and interpretation of the concept of 'jurisdictional fact' in the context of levy of CVD on the imported goods;(f) The treatment of conflicting classification and assessment of similar goods imported by the petitioner in earlier consignments;(g) The scope and limits of the Court's power to interfere with final assessment orders in customs matters under writ jurisdiction.2. ISSUE-WISE DETAILED ANALYSISIssue (a) & (b): Legality and jurisdiction of levy of CVD on 'Solar Heat Strengthen Glass'The petitioner contended that the impugned Bill of Entry was assessed with levy of CVD under Notification No. 03/2021-Customs (CVD), which applies to 'textured/tempered glass' under CTH 70071900, whereas the imported goods were 'Solar Heat Strengthen Glass' which is not covered under the said notification.The petitioner relied on mill test certificates and test reports from the Central Glass and Ceramic Research Institute, which classified the goods as 'Solar Heat Strengthen Glass' and not tempered or toughened glass. The petitioner argued that the respondents' classification was arbitrary and amounted to an approbate and reprobate approach, as similar goods had been assessed without CVD in other Bills of Entry.Relevant legal framework includes the Customs Act, 1962, specifically Notification No. 03/2021-Customs (CVD) dated 09.03.2021, which prescribes levy of CVD on certain categories of glass. The Director General of Trade Remedies' clarification dated 11.12.2020 was also cited, emphasizing that product description prevails over HS codes.The Court observed that the classification of goods as 'textured/tempered glass' or 'Solar Heat Strengthen Glass' is a disputed question of fact requiring verification and examination of evidence, which is beyond the scope of writ jurisdiction at this stage. The Court noted that mere similarity in description or classification in other consignments cannot substitute the degree of proof required to conclusively determine the nature of the goods for the impugned consignment.Issue (c) & (d): Appropriateness of invoking writ jurisdiction under Articles 226/227 versus alternative remedy under Section 128 of the Customs ActThe petitioner sought extraordinary relief under Article 226/227 of the Constitution to quash the impugned assessment and direct reassessment excluding CVD. The petitioner argued that the respondents had taken contradictory stands on classification and levy of CVD, justifying writ intervention.The Court highlighted that the Customs Act provides an efficacious alternative remedy by way of appeal under Section 128 against final assessment orders. The Court held that since the petitioner has an alternative statutory remedy, the writ petition is not maintainable at this stage. The Court emphasized that disputed factual issues and classification questions are to be adjudicated by the appellate authority under the Customs Act.The Court referred to the principle that writ jurisdiction is discretionary and should not be exercised where an alternative remedy exists, particularly in matters involving technical and factual determinations such as customs classification and duty assessment.Issue (e): Jurisdictional fact and its applicationThe petitioner relied on the Supreme Court's explanation of 'jurisdictional fact' from a precedent, which states that a jurisdictional fact is a fact that must exist before an authority assumes jurisdiction. The petitioner argued that the respondents lacked jurisdictional fact to levy CVD as the goods were not 'textured/tempered glass.'The Court acknowledged the principle but observed that the existence or non-existence of the jurisdictional fact (classification of goods) is itself a disputed question of fact requiring adjudication. The Court concluded that such fact cannot be conclusively determined at the writ stage without examining the case records and evidence, which are available before the appellate authority.Issue (f): Treatment of conflicting classification and approbate-reprobate argumentThe petitioner contended that the respondents' contradictory classification of similar goods imported earlier amounted to an approbate and reprobate approach, which is impermissible. The petitioner relied on a Supreme Court decision which held that a party cannot approbate and reprobate by taking inconsistent stands to gain advantage.The Court noted the petitioner's submission but held that the issue of classification and levy of CVD on different consignments involves detailed factual and technical examination. The Court found that the petitioner's argument does not justify bypassing the statutory appeal remedy and that the alleged inconsistency is a matter to be examined by the appellate authority.Issue (g): Scope of Court's interference under writ jurisdictionThe Court recognized that it could exercise powers under Article 226 by calling for the original file and examining the reasons recorded by the assessing authority. However, the Court opined that such exercise is better left to the appellate authority, especially when an alternative efficacious remedy is available. The Court emphasized judicial restraint in interfering with final assessment orders in customs matters through writ jurisdiction.3. SIGNIFICANT HOLDINGS'A 'jurisdictional fact' is a fact which must exist before a Court, Tribunal or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administrative agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari.''Whether the goods imported by the petitioner under description 'Solar Heat Strengthen Glass for Solar PV Modules' was 'textured/tempered glass' is a matter of disputed question of fact more particularly when the petitioner has classified the goods under CTH 70071900 depending upon the verification of the goods imported by the petitioner. Merely because similar goods imported by the petitioner have been classified as 'Solar Heat Strengthen Glass' in place of 'Textured/Tempered Glass' or vice versa, it cannot substitute the degree of proof required to hold that the present consignment or for that matter, all the different consignments of the petitioner are 'Solar Heat Strengthen Glass' and not 'Textured/Tempered Glass' be considered in absence of case records which would be available with the appellate authority.''This petition need not be entertained as there is alternative efficacious remedy provided under section 128 of the Act. The petitioner is required to file appeal challenging the impugned final assessment of Bill of Entry before the appellate authority under section 128 of the Act.''In view of the foregoing reasons, we refrain from exercising extraordinary powers under Article 226 of the Constitution of India as the contention raised by the petitioner that there is no jurisdictional fact before the respondents to assume jurisdiction which requires this Court to exercise powers under Article 226 as the facts on record, as pleaded by the petitioner along with documents are required to be adjudicated under section 128 of the Act.'The Court's final determination was to dismiss the writ petition on the ground of availability of an alternative remedy under Section 128 of the Customs Act, 1962. The Court declined to interfere with the impugned assessment order and directed the petitioner to pursue the remedy of appeal before the appellate authority. No order as to costs was made.