TaxTMI 
TaxTMI 
2010 (5) TMI 287
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....ings vide Notification dated 28th May, 2009 indicating necessity of imposing safeguard duty on imports of PAN into India. 3. In exercise of powers conferred by Sub Section (1) of Section 8B of the Customs Tariff Act, 1975 read with Rules 12, 14 of the Rules 1997, after considering the findings of Director General (Safeguards), duty was imposed on PAN falling under tariff item 2917 35 00 of the First Schedule of the said Act when imported into India at the rates mentioned in the Notification No. 75/2009-Customs dated 30th June, 2009 referred to hereinabove. 4. The petitioners are seeking the declaration that the Notification No. 75/2009-Customs dated 30th June, 2009 purporting to levy safeguard duty only upto 31st December, 2009 i.e. for one year only is contrary to Section 8B(4) of the Customs Tariff Act, 1975 and that it ought to have been made operative or valid for the period of four years, unless revoked earlier, in terms of Section 8B(4) of the Customs Tariff Act, 1975. The petitioners are also seeking interim directions against the Customs Authorities throughout India to permit import of PAN subject to the collection of safeguard duty on provisional basis without prejud....
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.... demonstrated injury which they are suffering. 8. Per contra, Mr. R.V. Desai, learned Senior Counsel appearing for the respondents strongly urged that Writ of Mandamus cannot be issued to Legislature to enact a particular Legislation, though same is also true as regard to the Executive since the exercise of power to make Rules or issue notification are in the nature of subordinate Legislation. According to him, the Notification No. 75/2009-Customs, dated 30th June, 2009 is nothing but an out-come of exercise of the Legislative power exercised by Central Government as such, no writ of mandamus can be issued directing Central Government to issue Notification in accordance with the recommendations made by the Director General (Safeguards). He placed reliance on the judgment of the Apex Court in the case of State of Jammu & Kashmir v. A.R. Zakki & Ors. - 1992 AIR 1546 SC, Suresh Sheth v Commissioner, Indore Municipal Corporation, 2006 AIR 767 S.C., M/s. Narinder Chand Hemraj & Ors. v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh & Ors. - 1971 AIR 2399 S.C. in support of his submission. 9. Mr. Desai further urged that if one turns to the prayer clauses incorporat....
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....ble to be dismissed for non joinder of necessary parties. According to him, it was necessary for the petitioners to join them as party respondent to the petitioners. He further submits that so far as respondent No. 5 is concerned, it is an association of manufacturers, whereas respondent No. 6 is a Federation. Similarly, respondent No. 9 is a Chemical Industries Association. He, thus, submits that no list of members is to be found in the petition, as such it will not be possible for this Court to implement the interim order, if passed. In his submission, the Courts are not expected to pass orders implementation of which cannot be supervised by the Court granting order. He submits that the present petition is technically defective and the defects pointed out herein are fatal to the survival of the petition, as such, this is not a fit case for grant of interim relief. 14. Mr. Rai further submits that it was open for the petitioners to file Review as contemplated under Rule 18 of the Safeguard Rules rather than filing petition before this Court. He further submits that the representation dated 4th November, 2009 made by the petitioners to the Director General (Safeguards) is also n....
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....necessities lies on the person seeking interim relief. Interim relief is not granted to a party guilty of delay or who has indulged in suppression of facts. The person seeking interim relief must approach the Court with clean hands. The Court has to see whether the claim is bona fide and whether there is a fair and substantial question to be tried. 19. In arriving at the balance of convenience, the Court has to weigh the mischief likely to be caused to the applicant, if the interim relief is refused. At the same time, it has also to compare the injury likely to be caused to the other side, if the interim relief is granted. Apart from considering prima facie case and balance of convenience, the Court/ Tribunal has also to consider as to whether grant or refusal to grant interim relief will cause any irreparable injury to the party to the proceeding. The injury means a legal injury. A lawful exercise of right cannot be described as an injury. So long as the party is acting in the exercise of a right which the law recognises, it cannot be said that the party is committing any wrong leading to any injury. When as a result of the proceeding, it is found that the party has not got the....
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....thereof. Except this, as on date, there is no any subsisting right in favour of the petitioners. 22. Let us assume for the sake of arguments, that this Court grants interim relief subject to the condition that the importers should execute bond agreeing therein to pay safeguard duty in the event petition succeeds. The moment bond is executed, the importers shall incur contingent liability. Once the contingent liability is made to hang on their head, they are bound to include the component of the safeguard duty in the sale price of their product. The incidence of this contingent liability is bound to be transferred by them to their consumers. In the event the petition is dismissed, the importers are bound to pocket the element of safeguard duty recovered by them from their consumers or to the extent transferred by them to their customers. In the circumstances, they are bound to be unjustly enriched. 23. So far as the petitioners are concerned, they would get benefit of pushing their product to the local market. Some importers may import on execution of the bond, some of them in order to avoid contingent liability may not import and may tend to purchase from the petitioners. In ....