AI OCR 
TaxTMI 
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2015 (12) TMI 1390
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....013 issued by Respondent No.3 herein. 3. In a nutshell, it is the case of the Petitioner that vide Notification No.96/2009-Cus. dated 11th September 2009, goods imported into India against Advanced Authorization issued in terms of paragraph 4.1.3 of the Foreign Trade Policy, are exempted from (1) whole of the Customs Duty leviable thereon; (2) whole of the Additional Duty under section 3 of the CTA, 1975; (3) Anti- Dumping Duty under section 9A of the CTA, 1975; and (4) Safeguard Duty under section 8B of the CTA, 1975 subject to the terms and conditions set out in the said Notification. However, no exemption is granted from the Transitional Product Specific Safeguard Duty leviable under section 8C which is imposed on goods imported into India specifically from the People s Republic of China. It is the case of the Petitioner that the nature of the Safeguard Duty imposed under section 8B as well as under section 8C is one and the same and there is no intelligible differentia for granting exemption from one and denying exemption from the other. It is in these circumstances that the reliefs and in the nature set out above, have been sought in this Writ Petition. 4. The brief fa....
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....of Carbon Black from the People s Republic of China against Advance Authorisation by availing the benefit of the aforesaid Notification. 7. Despite the fact that the Petitioner was allowed to import Carbon Black from the People s Republic of China without the payment of Transitional Product Specific Safeguard Duty levied under section 8C of the CTA 1975, it appears that the Revenue is now taking a stand that the exemption in terms of Notification No.96/2009-Cus. is not available for Safeguard Duty imposed under section 8C of the said Act. According to the Revenue, exemption in terms of the said Notification is available only to Basic Customs Duty, Additional Duties of Customs, Special Additional Duties of Customs, Anti-dumping Duty levied under section 9A and Safeguard Duty levied under section 8B of the CTA, 1975. In other words, it is the stand of the Revenue that the benefit of the said Notification could not be extended to the Transitional Product Specific Safeguard Duty levied under section 8C of the CTA, 1975 which was a specific provision for imports from the People s Republic of China. In view of the aforesaid stand of the Revenue, a Show Cause Notice dat....
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.... particularly when there is an increase in the quantity of imports into India of a particular product. Mr Sridharan submitted that the amount of Safeguard Duty that is imposed on any specified product does not exceed the amount which has been found adequate to prevent a serious injury that is sought to be negated by virtue of such imposition. In support of this, Mr Sridharan placed reliance on the Customs Tariff (Identification and Assessment of Safeguard Duty) Rules 1997. In other words, it was the submission of Mr Sridharan that Safeguard Duty is leviable to the extent of the injury margin. This, according to Mr Sridharan, was the common underlining factor in sections 8B as well as 8C of the CTA, 1975. 11. Mr Sridharan submitted that imposing duties under sections 8B, 8C and/or 9A of the CTA, 1975 ensures that the domestic industry in India is protected. However, such imposition has the effect of prejudicially affecting the user industry. For example, manufacturers of pistons in India would be the domestic industry and manufacturers of engines using those pistons would be the user industry. If Safeguard Duties are imposed on imports of pistons, it protects the piston manufacture....
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.... and the Indian origin goods would be competitive in today's global markets. To give effect to this Policy, the Ministry of Finance issued Notifications from time to time. Notification No.96/2009-Cus. dated 11th September, 2009 was one such Notification that was issued to implement this Policy. Mr Sridharan would submit that despite the Foreign Trade Policy taking within its sweep exemption of Safeguard Duty, the Notification issued to implement the said Policy only exempted Safeguard Duty imposed under section 8B of the CTA, 1975. Looking to the Foreign Trade Policies of the Government and the object sought to be achieved thereby, Mr Sridharan submitted that the omission of section 8C from the said Notification was clearly a mistake or an oversight by the Government. 13. In the alternative, Mr Sridharan submitted that in any event the said Notification has been issued to give effect to the Foreign Trade Policy. The Foreign Trade Policy formulated from time to time by the Government of India exempts payment of all Safeguard Duties irrespective of whether they are imposed under sections 8B or 8C of the CTA, 1975. If this be the case and Notification No.96/2009-Cus. being issued....
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....(vii) State of U.P. v. Renusagar Power Co. (1988) 4 SCC 59 : AIR 1988 SC 1737 15. Mr. Sridharan would therefore submit that this Court may issue a writ of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India striking out the phrase "under section 8B" appearing in the opening portion of Notification No.96/2009-Cus. dated 11th September, 2009 and for a declaration that the Transitional Product Specific Safeguard Duty imposed under section 8C for imports from the People s Republic of China is also exempted / covered by Notification No.96/2009-Cus. dated 11th September, 2009. 16. On the other hand, Mr Jetly, learned counsel appearing on behalf of the Revenue, submitted that Carbon Black imported by the Petitioner from China are admittedly subjected to a Safeguard Duty under section 8C of the CTA, 1975. In this regard, Mr Jetly brought to our attention Notification No.4/2012-Cus.(S.G.) dated 5th October, 2012 in which it is stated that in the matter of import of Carbon Black (for rubber application) from the People s Republic of China, the Director General (Safeguard) had come to the conclusion that the increased imports....
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.... no interference is called for in writ jurisdiction. 17. In addition thereto, Mr Jetly submitted that it is now settled law that whether to grant an exemption or not is entirely at the discretion of the Government and there is no vested right in any citizen to claim an exemption. If the Legislature in its wisdom and after taking into consideration all the relevant factors, chose to exempt a particular product from the imposition of duties whilst deciding not to grant an exemption to some other product, would not make the action of the Government arbitrary or capricious and/or violative of article 14 of the Constitution of India. On this ground also, Mr Jetly would submit that no interference is called for by us in our writ jurisdiction. 18. Mr Jetly also placed reliance on the Foreign Trade Policies referred to above and submitted that these policies never took within its sweep to exempt Safeguard Duty imposed under section 8C of the CTA, 1975. This introduction came for the first time in the Foreign Trade Policy 2015-2020. Mr Jetly was at pains to point out the difference in the language used in the Foreign Trade Policy 2009-2014 and the Foreign Trade Policy 2015-2020. Mr Jetly ....
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....s and proceedings in the Writ Petition alongwith the annexures thereto. We have also perused the relevant provisions of law and the Notifications issued from time to time by the Government of India on the subject. The short controversy that arises for our consideration is whether under Notification No.96/2009-Cus. dated 11th September 2009, there is any intelligible differentia for granting exemption from payment of Safeguard Duty imposed under section 8B whilst denying the exemption from payment of Safeguard Duty imposed under section 8C of the CTA, 1975. It is common ground before us that it has been the policy of the Government of India that as far as goods which are exported out of India are concerned, it is only the goods that are to be exported and not the taxes on the said goods. This is done in order to provide a level playing field to the goods manufactured in India for competing in the international market. This Policy has been framed because other countries across the world also export only the goods and not the taxes on the goods so exported. This Policy is to ensure that Indian origin goods are able to compete in the international market. In furtherance of the said Pol....
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....n 8C of the Customs Tariff Act, 1975. 22. Anti-dumping Duty is leviable on goods imported into India in terms of section 9A upon a conclusion of the investigation that the specified product imported into India from the specified country is being dumped into India. Anti-dumping duty is a measure resorted to for protecting the domestic industry when dumping is practiced by the country of export at a price lower than its normal value. The use of anti-dumping measure as an instrument of fair competition is permitted by the Word Trade Organisation (WTO) and is in accordance with Article VI of the General Agreement on Trade and Tariffs (GATT). Anti-dumping duty is imposed only to neutralise the effect of unfair trade practices being resorted to by the country of export. Safeguard Duty is a form of temporary relief used when imports of a particular product, as a result of tariff concessions or other WTO obligations undertaken by the importing country, increase unexpectedly to a point that they cause or threaten to cause serious injury to domestic producers of the like or directly competitive products. The objective behind safeguards is to give domestic producers a period of grace to beco....
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.... to a domestic industry, it shall refund the duty so collected; Provided further that the provisional safeguard duty shall not remain in force for more than two hundred days from the date on which it was imposed. (2A) Notwithstanding anything contained in sub-section (1) and sub-section (2), a notification issued under sub-section (1) or any safeguard duty imposed under sub-section (2), unless specifically made applicable in such notification or such imposition, as the case may be, shall not apply to articles imported by a hundred per cent export-oriented undertaking or a unit in a free trade zone or in a special economic zone. Explanation - For the purposes of this section, the expressions "hundred per cent export-oriented undertaking", "free trade zone" and "special economic zone" shall have the meanings assigned to them in Explanation 2 to sub-section (1) of section 3 of Central Excise Act 1944 (1 of 1944); (3) The duty chargeable under this section shall be in addition to any other duty imposed under this Act or under any other law for the time being in force. (4) The duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of ....
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....eaten to cause serious injury to the domestic industry, then, it may, by Notification in the Official Gazette, impose a Safeguard Duty on that article. This Safeguard Duty is imposed by the Central Government subject to the other sub-sections of section 8B. On a plain reading of section 8B, it is clear that Safeguard Duty can be imposed on any article imported from any country. In other words, the Safeguard Duty imposed under section 8B is article specific and not country specific. 24. When China decided to become a member of the WTO, an Accession Protocol was approved by the members of the WTO marking its entry into the Organisation. Section 16 of the Chinese Accession Protocol provided for the imposition of Transitional Product Specific Safeguard Duty on specified goods of Chinese origin imported from the People s Republic of China. It was pursuant to the said Accession of China into the WTO that India inserted section 8C in the CTA, 1975 in the year 2002. Section 8C of the CTA, 1975 reads thus:- "Section 8C. Power of Central Government to impose transitional product specific safeguard duty on imports from the People's Republic of China - (1) Notwithstanding anything....
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....e date of such imposition; Provided that if the Central Government is of the opinion that such article continues to be imported into India from the People's Republic of China so as to cause or threatening to cause market disruption to domestic industry, the Central Government may, notwithstanding the measures taken by the domestic industry towards adjustment to such market disruption or any threat arising thereof, if considers necessary that such duty should continue, extend the period of imposition of such safeguard duty for a period not beyond the period of ten years from the date on which the safeguard duty was first imposed; (5A) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act; (6) The Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality o....
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....en section 8B and 8C is that Safeguard Duty under section 8B is imposed when any article is imported into India in such increased quantities and under such conditions so as to cause or threatening to cause serious injury to domestic industry, whereas Safeguard Duty under section 8C is imposed when any article is imported from China in such increased quantities and under such conditions so as to cause or threatening to cause a market disruption to domestic industry. This would clearly show that different parameters are applied whilst imposing Safeguard Duty under the two sections. 26. Having noted these distinctions, we shall now deal with the arguments advanced by Mr Sridharan, learned Senior Counsel appearing on behalf of the Petitioner. It was the submission of Mr Sridharan that it was the consistent Foreign Trade Policy of the Government of India that goods imported into India, when used in the manufacture of final products exported out of India are exempted from payment of Customs Duties including Anti-dumping Duty under section 9A of the CTA, 1975 as well as the Safeguard Duties imposed under section 8B as well as section 8C of the CTA, 1975. In the Export Import Policy 1997-....
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....port shall be exempted from basic customs duty and additional customs duty only." 29. The Foreign Trade Policy 2004-2009 also exempts payment of Basic Customs Duty, Additional Customs Duty, Antidumping Duty and Safeguard Duty, if any, for import of inputs against Advance Licence as defined in paragraph 4.1.1 of the said Policy. Paragraph 4.1.4 of the Foreign Trade Policy 2004-2009 (September 2004 Edition) reads as under :- "4.1.4. Advance Licence is issued for duty free import of inputs, as defined in paragraph 4.1.1 subject to actual user condition. Such licences (other than Advance Licence for deemed exports) are exempted from payment of basic customs duty, additional customs duty, education cess, anti-dumping duty and safeguard duty, if any. Advance Licence for deemed export shall be exempted from basic customs duty, additional customs duty and education cess only. However in case of supplies to EOU/EHTP/STP/BTP under such licences, anti-dumping duty and safeguard duty shall also be exempted." 30. Similar is the provison in Foreign Trade Policy 2009- 2014 (September 2009 Edition). Paragraph 4.1.4 thereof reads thus:- "4.1.4. Advance Authorisations are exempted from paym....
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.... section 8C of the CTA, 1975 and we do not think that there was any mistake or omission on the part of the Government in not granting exemption from payment of Safeguard Duty imposed under section 8C. We have come to this conclusion because we are clear that even the Foreign Trade Policies upto and including the Foreign Trade Policy 2009-2014 did not contemplate exemption from payment of Transitional Product Specific Safeguard Duty under section 8C of the CTA, 1975. That exemption came for the first time in the Foreign Trade Policy 2015- 2020. In fact, keeping in line with this new Policy, the Government issued Notification No.21/2015-Cus. dated 01.04.2015 which now also exempts the Transitional Product Specific Safeguard Duty imposed under section 8C for imports from the People s Republic of China. In this view of the matter, we are unable to agree with the submissions of Mr Sridharan that it has been the consistent Policy of the Government of India to exempt all Safeguard Duties whether falling under section 8B or 8C of the CTA, 1975. 34. Mr Sridharan placed heavy reliance on the Office Memorandum dated 31st May, 2013 (Annexure 'G' to the Petition) issued by the Ta....
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.... that though Legislative measures dealing with economic regulations are not outside Article 14 of the Constitution of India, it is well recognised that the State enjoys the widest latitude where measures of economic regulations are concerned. These measures for fiscal and economic regulations involve an evaluation of diverse and quite often conflicting economic criteria and it is for the State to decide what economic and social policy it should pursue and what discriminations advance those social and economic policies. It is in this context that a larger discretion is given to the Legislature in the matter of its preferences of economic and social policies and to effectuate the chosen system in all possible and reasonable ways. This settled position has been very succinctly set out by the Supreme Court in the case of P.H. Ashwathanarayana Setty v/s State of Karnataka. 1989 Supp (1) SCC 696 The Supreme Court, speaking through M.N. VENKATACHALIAH J, summarized as under:- "79. The problem is, indeed, a complex one not free from its own peculiar difficulties. Though other legislative measures dealing with economic regulation are not outside Article 14, it is well recognised that the ....
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....nreasonable must, in the ultimate analysis depend upon the judicial approach to the problem.... The more complicated society becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversities.... In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not official deference to legislative judgment. The courts have only the power to destroy but not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events, selflimitation can be seen to be the path to judicial wisdom and institutional prestige and stability. Laws regulating economic activity should be viewed differently from laws which touch and concern freedom of speech and religion, voting, procreation, rights with respect to criminal procedure, etc... judicial deference to legislative judgment in instances of economic regulation is explained by the argument that rationality of a classification depends upon local conditions about which local legislative or administrati....
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....egory is not by itself a ground to render the law invalid. It is only when within the range of its selection, the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of Article 14." " (emphasis supplied) 35. There is yet another reason why no relief and in the nature sought in this Writ Petition can be granted in favour of the Petitioner. In the present case, it is common ground before us that up until 2015 no exemption was ever granted from payment of Safeguard Duty levied under section 8C of the CTA, 1975. Notification No.96/2009-Cus. dated 11th September, 2009 only granted exemption from payment of Safeguard Duty imposed under section 8B. This being the case, we, in our jurisdiction under Article 226 of the Constitution of India, cannot direct the Government to grant an exemption that was never granted earlier. No person has a vested right in the grant of an exemption. An exemption by its very nature is a freedom from an obligation which the exemptee is otherwise liable to discharge. It is a privilege granting an advantage not available to others. An exemption under a statutory provision in a taxing statute is....
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....rigendum and/or amendment to the aforesaid Notification seeking exemption from payment of Safeguard Duty imposed under section 8C. This corrigendum obviously was never issued. This being the case and applying the principles laid down by the Supreme Court in J.K. Udaipur Udyog Ltd.'s case, (2004) 7 SCC 673 we are afraid we cannot, exercising our equitable jurisdiction under Article 226 of the Constitution of India, direct the Government to grant an exemption which was even otherwise never granted under the aforesaid Notification. 37. In any event, we do not think that this is a fit case to exercise our extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India. In the present case, challenge is laid to the Show Cause Notice dated 3rd October, 2013 issued by Respondent No.3. The said Show Cause Notice has yet not been adjudicated. It is really to circumvent or prejudge the adjudication of the aforesaid Notice that these arguments have been advanced on behalf of the Petitioner. As stated earlier, the Show Cause Notice is yet to be adjudicated and thereafter the Petitioner has several other remedies under the Act to challenge the adjudic....
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....g it as scrap. This ship was purchased by the Respondent as a successful tenderer for a sum of Rs. 61 lakhs and at the time of import, the Collector of Customs, Cochin, assessed the customs duty and additional duty payable under section 3 of the CTA, 1975 on this ship on an ad valorem basis and customs duty in the sum of Rs. 62,16,796.55 was levied on the movable articles in the ship. The body of the ship was assessed at 30% and 50% ad valorem and additional customs duty i.e. countervailing duty at 12% ad valorem. The Respondent paid a sum of Rs. 5,68,660/- as sales tax. After the import of the ship, the same was dismantled and broken from which iron and steel scrap was taken out. This iron and steel scrap was exigible to excise duty. This scrap which was obtained by breaking the ship was cleared by the Respondent on payment of central excise duty at the rate of Rs. 365/- per tonne as per Notification No.146/86-C.E. dated 01-03- 1986. Up to this point, there was no dispute. However, the dispute arose for the material that was cleared for the period starting from 09-08-1986 to 27-07-1987. During this time, there were certain other Notifications that were issued. The Notification dat....
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....15. The judgment of this Court in Kasinka Trading's case [1994 (74) E.L.T. 782 (S.C.)], no doubt, lays down the principle that there is wide discretion available to the Government in the matter of granting, curtailing, withholding, modifying or repealing the exemptions granted by earlier notifications. It is also correct that the Government is not bound to grant exemption to anyone to which it so desires. When the duty is payable under the provisions of the act, grant of exemption from payment of the said duty to particular class of persons or products etc. is entirely within the discretion of the Government. This discretion rests on various factors which are to be considered by the Government as these are policy decisions. In the present case, however, the issue is not of granting or not granting the exemption. When the exemption is granted to a particular class of persons, then the benefit thereof is to be extended to all similarly situated person. The notification has to apply to the entire class and the Government cannot create sub-classification thereby excluding one sub-category, even when both the sub-categories are of the same genus. If that is done, it would be conside....
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....fact that section 8C was brought on the statute-book with effect from 11-05-2002, the Government in its wisdom and as a policy decision chose not to exempt the payment of Transitional Product Specific Safeguard Duty under section 8C. This, to our mind, was also keeping in tune with the foreign trade policies of India upto and including the Foreign Trade Policy 2009- 2014. It is only in the Foreign Trade Policy 2015-2020 that the Government decided to even exempt the Transitional Product Specific Safeguard Duty imposed under section 8C provided the import of those goods was used against advance authorisation and the goods were used in the manufacture of final products that were ultimately exported out of India. This was a shift in the Policy of the Government and keeping in line with this new Policy, that the Government issued a Notification on 01-04-2015 which also exempted a party importing goods against advance authorisation from the payment of Transitional Product Specific Safeguard Duty imposed under section 8C of the CTA, 1975. In these facts, we find that the decision of the Supreme Court in the case of Union of India v/s N.S. Rathnam and Sons. 2015 (322) E.L.T. 353 (S.C.) is....
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.... and not the other, the same cannot be termed as an unreasonable classification requiring our interference. This being purely a policy matter decided by experts in the field, cannot be subjected to a judicial review in this fashion. 42. The next judgment relied upon by Mr Sridharan was in the case of Ram Krishna Dalmia AIR 1958 SC 538 : 1959 SCR 279 and more particularly paragraph 11 thereof. After relying upon its earlier judgment in Budhan Choudhry's case, AIR 1955 SC 191 : (1955) 1 SCR 1045 at paragraph 11 the Supreme Court very succinctly set out the principles that would have to be borne in mind by the Court when it is called upon to judge the constitutionality of any particular law attacked as discriminatory and violative of equal protection of the laws. The principles set out by the Supreme Court at paragraph 11 read as under:- "11. The principal ground urged in support of the contention as to the invalidity of the Act and/or the notification is founded on Article 14 of the Constitution. In Budhan Choudhry v. State of Bihar [ (1955) 1 SCR 1045] a Constitution Bench of seven Judges of this Court at p. 1048-49 explained the true meaning and scope of Article 14 as follow....
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....re directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be concieved existing at the time of legislation; and (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and un-known reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. The above principles will have to be constantly borne in mind by the court when it is called upon to adjudge the c....
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....e taken earlier in this judgment. In this view of the matter, we find that the reliance placed on the aforesaid decision by Mr Sridharan is wholly misplaced. 44. The next judgment relied upon by Mr Sridharan is a decision of the Supreme Court in the case of Indian Express Newspaper (1985) 1 SCC 641 and more particularly paragraphs 77 to 83 thereof. The facts of this case would reveal that the Petitioners being publishers of daily newspapers and periodicals had challenged the imposition of import duty and auxiliary duty on newsprint on the ground of infringement of the freedom of the press by imposing a burden beyond the capacity of the industry and also affecting the circulation of the newspaper and periodicals. The facts of that case would reveal that Notifications were issued by the Government on 1st March, 1981 and 28th February, 1982 under Section 25 of the Customs Act, 1962 which granted exemption from payment of certain duty beyond what was mentioned in them. These Notifications were issued in substitution of earlier Notifications which had granted a total exemption. It is in these circumstances that the Supreme Court opined that such Notifications had to be issued by the Go....
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....er, this exemption was never granted by the Government. In fact, it is the case of the Petitioner that by not granting this exemption the Government has committed an error or mistake. A party can never have a vested right in claiming an exemption that was never granted in the first place as held by the Supreme Court in the case of J. K. Udyog. (2004) 7 SCC 763 In this view of the matter, we find that the reliance placed by Mr. Sridharan on the decision of the Supreme Court in the Indian Express Newspaper s case (1985) 1 SCC 641 is of no assistance to the Petitioner. 45. Equally, we find that the reliance placed by Mr Sridharan on a decision of the Supreme Court in the case of Deepak Fertilizers (2007) 10 SCC 342 is also wholly misplaced. In the facts before the Supreme Court, a Notification issued on 2nd November, 1994 provided for exemption from payment of tax on the sale of all potassium phosphatic fertilisers including NPK (20:20:0) and NPK (23:23:0), for a specified period. However, this Notification was superceded by another Notification dated 10th April, 1995 wherein the exemption to NPK 23:23:0 was withdrawn with retrospective effect. It is in these circumstances the ....