TaxTMI 
TaxTMI 
2016 (6) TMI 1200
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....as under :- "14. Consequently the petition is partly allowed and it is directed that the respondent No. 3 shall allow clearance of the goods covered by commercial invoice dated 4th September, 2014 and consignments of Alloy Steel Deformed Bars also forthwith lying in the port of Chennai. However, it is made clear that this Court is not making any observation regarding the application of the BIS Standards in accordance with the impugned Circular dated 7-11-2014. Even after release of the goods, if the respondent Department is still of the opinion that the consignment is not of the Bureau of Indian Standards, it is free to take action in accordance with the provisions of law and that the petitioner shall co-operate fully with the respondent in the investigation of the same." and last para of order dated 19-10-2015 passed in W.P. No. 8501/2014 reads as under :- At the outset, it has been argued before this Court that the Co-ordinate Bench of this Court vide order dated 30th September, 2015 passed in W.P. No. 9169/2014 (Anik Industries Limited v. The Union of India and others) has allowed the identical writ petition. Following order has been passed by this Court. This w....
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....representations to indicate that alloy steel products were not covered under Serial No. 5 of the amended schedule to the Steel Quality Control Order. Counsel vehemently urged that the consignments of 25 M.M., 12 M.M., 16 M.M. & 2 M.M. imported deferred bars aggregating 4426.280 MT covered by the commercial invoice dated 4th September, 2014 were not answerable to the 2nd Amendment of 2014 which came into effect from 4th December, 2014 and the respondents were wrongly not clearing the goods of the petitioner. 4. Secondly, Counsel also urged that the impugned Circular was also challenged by this petition to be arbitrary, unreasonable and perverse since it does not satisfy the dual test as the items mentioned under the relevant B.I.S. (Bureau of Indian Standards) and its corresponding heading of ITC (HS) Indian Trade Classification (Harmonised Systems) Column No. 3. The goods under Sr. No. 5 aforementioned cover only one heading/sub-heading 72/31090 and 72/42090 and are goods pertaining to non-alloy steel, whereas the goods of the present petitioner are alloy steel and not covered under Column No. 3 of the amended schedule. The mere fact that the corresponding BIS 1786 covers b....
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....tral Government by the order dated 12-3-2012 had categorically stated that the product imported by the petitioner was included in the schedule and therefore the petitioner was not entitled to release of his goods as being claimed. More importantly Counsel submitted that petition was not maintainable and Indore High Court did not have the jurisdiction to try the writ petition. Counsel relied on Global Tradex Ltd. v. Union of India & ors. along with other connected matters i.e. W.P. No. 2909/14 (Magnum Steels v. Union of India & ors.), W.P. No. 2962/2014 (Steel Mart India Private Limited v. Union of India & ors. and W.P. No. (L) No. 2963/2014 (Sri Jagannath Steel Co. v. Union of India & ors., wherein the Bombay High Court in the matter of Global Tradex Limited (supra) has held thus : "In the above circumstances we do not find any basis to hold that the Circular issued on 7th November, 2014 is ultra vires Article 14 of the Constitution of India. We are of the opinion that the Circular in no way prohibits the petitioners from importing the goods. The same does not hold up unnecessarily the consignments. We are also not in agreement with the petitioners that the Circul....
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....estricted if they are not corresponding BIS Standard in Column and the explanation cannot be read to mean Steel Quality Control order shall be applicable to goods for which no ITC (HS) Code have been notified at all. Similarly, the issuance of the Steel Quality Control Order Alloy Steel Products not covered by the headings and sub-heading of the ITC (HS) mentioned in the order have been allowed clearance at various ports all over India. And in this light it would be necessary to consider that the question is yet to be decided by the appropriate Appellate Authority whether the Alloy Grade Bars and high strength Deformed Steel Bars are not covered by the mandatory certification. In this light placing reliance on the fact that even in the matter of Global Tradex Limited (supra) the Mumbai High Court held that "We are of the opinion that the Circular in no way prohibits the petitioners from importing the goods. The same does not hold up unnecessarily the consignments." 10. Thereby clearly indicating that the consignment of the present petitioner also has been wrongly withheld and is not necessary under the circumstances. Similarly, the next important question that now requires ....
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.... respondent No. 3 shall allow clearance of the goods covered by commercial invoice dated 4th September, 2014 and consignments of Alloy Steel Deformed Bars also forthwith lying in the port of Chennai. However, it is made clear that this Court is not making any observation regarding the application of the BIS Standards in accordance with the impugned Circular dated 7-11-2014. Even after release of the goods, if the respondent Department is still of the opinion that the consignment is not of the Bureau of Indian Standards, it is free to take action in accordance with the provisions of law and that the petitioner shall co-operate fully with the respondent in the investigation of the same. 15. With the aforesaid observation and directions, the petition is partly allowed to the extent herein above indicated. No costs. CC as per rules. In light of the aforesaid judgment, this present writ petition also stands allowed. Respondent No. 3/the Commissioner of Customs (Import), Mumbai shall allow clearance of the goods covered by Commercial invoice dated 18th September, 2014 (Annexure P/4 ) and the consignments of Alloy Steel of Deformed Bars also forthwith lying in the port of Mu....
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....ducts which are defined in the Para 2(I) as item specified in Column No. 2 of the Schedule which reads as under :- Indian Standard Number Title ITC (HS) Code 1 2 3 1786 High Strength deformed steel bars and wires for concrete reinforcement (8 mm and above) 72131090 72142090 From the aforesaid entry, it is clear that it only deals with high steel deformed bars and wires and not deformed bars of alloy steel. 5. The Steel and Steel Products (Quality Control) Second Amendment Order, 2014, which came into force w.e.f. 1-4-2014 (Annexure P/7), which includes certain further item to the Schedule to the Order of 2012 as item requiring mandatory Bureau of Indian Standards Act (BIS) certification. Entry No. 5 reads as under :- Indian Standard Number Title ITC (HS) Code Date of coming into force of the product in the standard to the extent given below 1 2 3 4 (A) Product (B) With effect from 1786 High Strength deformed steel bars and wires for concrete reinforcement (8 mm and above) 72131090 72142090 (a) High strength deformed steel bars and wires of diameter less....
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....or the Respondent No. 1 before the writ Court was that the clarification dated 7-11-2014 cannot had deformed alloy steel bars in the schedule of products, which require Bureau of Indian Standards Certification with retrospective effect. Paras 2 to 6 of circular dated 7-11-2014 (Annexure P/10) read as under :- "2. The matter has been examined by the Board. It is seen that in few imports at Chennai the imported goods contained more than 0.0008% Boron and fell under CTH 7228 while the said Steel Products Quality Control Order, 2012 mentions goods falling under CTH 72131090 and 72142090 (Sl. No. 5 of the said Order refers). Since CTH 7228 was not mentioned in the said Steel Products Quality Control Order, 2012 the Commissioner of Customs (Imports), Chennai referred the matter to Bureau of the Indian Standards for clarification. The Board also made a reference to Ministry of Steel to align the Steel Products Quality Control Order, 2012 with the correct CTH. 3. In this regard, Ministry of Steel has informed that the Steel Products Quality Control Order, 2012 is strictly based on the relevant Indian Standards through ITC (HS) Code has been provided for reference purposes. ....
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....ity Control Order, 2012. 6. Board desires that the fields formations may be suitably alerted to allow the import of said items strictly in accordance with the aforementioned legal provisions including that of BIS certification, as applicable." 9. The contention before the writ Court was that the goods had arrived at the ports of Chennai and Mumbai much before the Steel Products Quality Control Order. The second amendment order has been made after the circular dated 7-11-2014 was in force w.e.f. 4-12-2014. The contract between the parties is dated 24-6-2014 and the departments were wrongly not clearing the goods of the Respondent No. 1. 10. A preliminary objection was also raised by the department as well as by the intervener regarding territorial jurisdiction of this Court on the ground that the goods were lying at Mumbai and Chennai ports. The circular dated 7-11-2014 was issued at Delhi. The High Court of M.P. at Indore Bench is having no territorial jurisdiction to draw the goods and the writ petition filed by the Respondent No. 1 was not maintainable. 11. To meet out the aforesaid preliminary objection the Respondent No. 1 pointed out to the lear....
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.... accordance with the provisions of law and that the petitioner shall co-operate fully with the respondent in the investigation of the same". 13. As per Clause (2) of Article 226 of the Constitution, it is clear that High Court can issue a writ when the person or the authority against whom the writ is issued is located outside his territorial jurisdiction; if "cause of action" wholly or partly arises within the Court's territorial jurisdiction. "The cause of action" for the purpose of Article 226(2) of the Constitution, for all intent and purpose must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. The term "cause of action", as per Clause (2) of Article 226 of the Constitution came up for consideration time and again before the Apex Court. 14. In the case of Kusum Ingots & Alloy Limited v. Union of India reported in (2004) 6 SCC 254 = 2004 (168) E.L.T. 3 (S.C.), the Apex Court, keeping in view that expression used in clause (2) of Article 226 of the Constitution of India, has held that even if a small fraction of "cause of action" accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matte....
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.... the decision of the Apex Court in the case of Kumari Anukirti Mishra v. Gujarat National Law University & others reported in (2015) 2 MPLJ 143 and submitted that no part of cause of action had arisen at Indore Bench of Madhya Pradesh High Court and the learned Writ Court committed a legal error in exercising jurisdiction under Article 226 of the Constitution of India beyond its territorial jurisdiction. 18. On merits, they have drawn our attention to the circular dated 7-11-2014 and submitted that the same is clarificatory in nature, and therefore, the same would apply retrospectively. Learned Writ Court committed an error in holding it otherwise by allowing the writ petition. To support the aforesaid argument, he has drawn our attention to Paragraph 41 of the decision of the Apex Court in the case of Union of India v. N.R. Parmar reported in (2012) 13 SCC 340. 19. Per contra, Shri S.C. Bagadiya, learned Senior Counsel for respondent - Anik Industries Limited has drawn out attention to the averments made in the writ petition and letters addressed to the authorities and submitted that the corporate office of Respondent No. 1 is at Indore; order was placed from Indor....
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....rom any persons/exporters by making amendments retrospectively. 22. In the case in hand, by issuing circular dated 7-11-2014, which was under challenge in the writ petition, an attempt was made to make a control order applicable to alloy steel deformed bar also. The Apex Court in the case of Union of India v. Inter Continental (India) reported in 2008 (226) E.L.T. 16, has laid down in Paragraphs 5 and 6 that by issuing a subsequent circular, the department cannot add a new condition to the parent notification. Any such attempt will be contrary to law, if alloy deformed steel bars are to be included in the relevant control order then it had to be done by amending the schedule to the order itself and not by issuing any departmental clarification. 23. Secondly, no clarificatory circular can be retrospective that is to say it cannot apply to things already done. In the instant case, when sales contract dated 24-6-2014 took place, the clarification dated 7-11-2014 did not exist. Likewise, when pursuant to this contract, the commercial invoice was drawn on 4-9-2014, the clarificatory order did not exist. The fact that the goods in question were confirming to the British S....