TaxTMI 
TaxTMI 
2024 (5) TMI 480
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....>YASHWANT VARMA, J And RAVINDER DUDEJA, J. For the Appellant : Mr. Sujit Ghosh, Senior Advocate with Ms. Mannat Waraich, Mr. Shubh Dixit and Ms. Ananya Goswami, Advs For the Respondent : Mr. N. Venkataraman, ASG along with Ms. Amritha Chandramouli, Mr. Rahul Vijaya Kumar, Mr. Chandrashekara Bharathi, Ms. Kushi S., and Mr. Shivshankar G.,Advs JUDGMENT YASHWANT VARMA, J. S. No. Particulars Paragraph Nos. A. PREFACE 1 - 6 B. THE FACTUAL BACKDROP 7 - 22 C. SUBMISSIONS OF ACME AND AVAADA 23 - 42 D. SUBMISSIONS OF THE RESPONDENTS 43 - 75 E. SUBMISSIONS OF JAKSON POWER PRIVATE LIMITED 76 - 79 F. SUPPLEMENTAL SUBMISSIONS OF THE PETITIONERS 80 - 84 G. THE STATUTORY SCHEME 85 - 99 H. RELATED DEVELOPMENTS 100 - 105 I. THE VALIDITY OF THE IMPUGNED INSTRUCTION 106 - 121 J. THE INTERPLAY BETWEEN SECTIONS 61 AND 65 122 - 142 K. THE ―IN RELATION TO‖ QUESTION 143-149 L. MOOWR REGULATIONS AND THE CONTEMPORANEOUS MATERIAL 150-161 M. DISTORTION OF THE LEVEL PLAYING FIELD 162-165 N. APPL....
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.... held by the petitioners and the impugned Instruction urging them to take emergent steps to cancel all existing licenses. According to the petitioners, the Instruction is in essence a direction to the Customs officials to not only refrain from granting any fresh licenses but to also review existing licenses and thus depriving the petitioners of the opportunity to explain why their licenses granted under the MOOWR Regulations were valid. 4. On a more fundamental plane, it was asserted that the impugned Instruction proceeds on a wholly incorrect and erroneous understanding of the scheme underlying Sections 61 and 65 of the Act and the MOOWR Regulations themselves, and which enables an importer to bring into India any capital goods which may then be validly housed in licensed warehouses and a manufacturing process or other operations in relation to those goods being undertaken. The petitioners contend that neither the Act nor the MOOWR Regulations can possibly be construed as excluding solar power generation from its ambit and the stand to the contrary as taken by the respondents being wholly untenable. 5. Although the writ petitions were essentially concerned with the validity ....
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.... Mega Watt[MW] electricity. A Power Purchase Agreement[PPA] is stated to have been executed between the petitioner and MSEDCL, in terms of which it is obliged to provide electricity to that governmental entity for a period of 25 years. Undisputedly, a failure on the part of the petitioner to commission the project or to falter in its obligations to supply electricity is liable to be construed as an "Event of Default" as per Clause 10.3.1 of the PPA. 8. The MOOWR Regulations, as noticed above, came into effect from 01 October 2019. They define the scope of eligibility and its application to those who have been granted a license for a warehouse under Section 58 of the Act along with permission to undertake manufacturing or other operations in that warehouse in accordance with Section 65 of the Act. A person desirous of obtaining the aforenoted license under the MOOWR Regulations is obliged to move the Principal Commissioner or the Commissioner of Customs in accordance with Regulation 4. Regulation 3 stipulates that those regulations would apply to all units currently operating under Section 65 as well as those which may apply for grant of permission to operate in accordance with S....
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....s of the provisions of the Act or the rules and regulations made thereunder." 10. In terms of Regulation 13, a licensee is enabled to transfer warehoused goods to another warehouse or to a customs station for export subject to fulfilment of the conditions stipulated therein. Regulation 13 stands framed in the following words:- "13. Transfer of goods from a warehouse. - (1) A licensee shall allow transfer of warehoused goods to another warehouse or to a customs station for export, with due intimation to the bond officer on the Form for transfer of goods from a warehouse. (2) Upon intimation to the bond officer as sub-regulation (1), the licensee shall, - (i) allow removal of the goods and their loading onto the means of transport; (ii) affix a one-time-lock to the means of transport; (iii) endorse the number of the one-time-lock on the Form and retain a copy thereof; (iv) endorse the number of the one-time-lock on the transport document and retain a copy thereof; (v) take into record the removal of the goods; and (vi) cause to be delivered, copies of the retained documents to the bond officer." 11....
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....ology park unit or software technology park unit or any warehouse wherein manufacture or other operations have been permitted under Section 65, till their clearance from the warehouse; (b) in the case of goods other than capital goods intended for use in any hundred per cent export oriented undertaking or electronic hardware technology park unit or software technology park unit or any warehouse wherein manufacture or other operations have been permitted under Section 65, till their consumption or clearance from the warehouse; and (c) in the case of any other goods, till the expiry of one year from the date on which the proper officer has made an order under sub-section (1) of Section 60: Provided that in the case of any goods referred to in this clause, the Principal Commissioner of Customs or Commissioner of Customs may, on sufficient cause being shown, extend the period for which the goods may remain in the warehouse, by not more than one year at a time: Provided further that where such goods are likely to deteriorate, the period referred to in the first proviso may be reduced by the Principal Commissioner of Customs or Commissioner of Customs to such s....
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....efuse, the following provisions shall apply- (a) if the whole or any part of the goods resulting from such operations are exported, import duty shall be remitted on the quantity of the warehoused goods contained in so much of the waste or refuse as has arisen from the operations carried on in relation to the goods exported: Provided that such waste or refuse is either destroyed or duty is paid on such waste or refuse as if it had been imported into India in that form; (b) if the whole or any part of the goods resulting from such operations are cleared from the warehouse for home consumption, import duty shall be charged on the quantity of the warehoused goods contained in so much of the waste or refuse as has arisen from the operations carried on in relation to the goods cleared for home consumption." 14. Before we proceed further and set out the facts in greater detail, we also deem it appropriate to reproduce Section 65A which though existing on the statute book is yet to be enforced. Section 65A of the Act is reproduced hereinbelow: "65-A. Goods brought for operations in warehouse to have ordinarily paid certain taxes.-(1) Notwithstanding a....
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....e warehouse in such manner as may be prescribed. (2) The provisions of sub-section (1) shall not apply for the purpose of manufacturing process or other operations in terms of Section 65 to dutiable goods which have been deposited in the warehouse or permitted to be removed for deposit in the warehouse prior to the date notified under that sub-section. (3) The Central Government may, if it considers necessary or expedient, and having regard to such criteria, including but not limited to, the nature or class or categories of goods, or class of importers or exporters, or industry sector, exempt, by notification, such goods in relation to which any manufacturing process or other operations in terms of Section 65 may be carried out, as may be specified in the notification, from the application of this section." 15. As per the petitioners, of equal significance are the Frequently Asked Questions[FAQs] issued by the Board seeking to explain the scope and ambit of the MOOWR Regulations. The petitioners in this respect drew our attention to those FAQs' and which explains the underlying intent of the MOOWR Regulations to be the facilitation of manufacturing activity being undert....
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....acture and other operations in a bonded warehouse is a duty deferment scheme. Thus both BCD and IGST on imports stand deferred. Thus the case of goods other than capital goods, the import duties (both BCD and IGST) stand deferred till they are cleared from the warehouse for home consumption, and no interest is payable on duty. In case the finished goods are exported, the duty on the imported inputs (both BCD and IGST) stands remitted i.e. they will not be payable. The duty deferment is without any time limitation." 17. As is manifest from the above, the Board explained the benefits of the MOOWR Regulations to be a deferral of both the Basic Customs Duty[BCD] as well as the Integrated Goods and Service Tax [IGST]. It was further stated and declared that duty, both BCD and IGST, would stand deferred till such time as the capital goods are cleared from the warehouse for home consumption. This aspect assumes added significance since supply of electricity is exempt from IGST. 18. On 20 and 26 October 2021, licenses came to be granted by the second respondent to the petitioner under the MOOWR Regulations. The terms of the license dated 20 October 2021 are reproduced hereinbelow:- ....
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....ulations laid down in the Private Warehouse Licensing Regulation, 2016 issued vide notification No. 71/2016- Customs (NT) dated 14.05.2016. (iii) The license holder shall comply with the regulation laid down in the warehoused goods (Removal) Regulation, 2016 issued vide 67/2016-Customs (NT) dated 14.05.2016. (iv) The License holder shall comply with the regulations laid down in the Warehouse (Custody and Handling of Goods) Regulation, 2016 issued vide notification No. 68/2016-Customs (NT) dated 14.05.2016. (v) The license would liable for cease to be valid whenever there is violation/ change of any clause as specified in the undertakings submitted by the licensee unless such change is approved by the competent authority. (vi) The license holder shall provide annually an all risk insurance policy, that includes natural calamities, riots, fire, theft, skilful pilferage and commercial crime, in favour of the President of India, for a sum equivalent to the amount of duty involved on the dutiable goods proposed to be stored in the warehouse at any point of time. The insurance policy will be liable under the Customs Act, 1962 to compensate this departm....
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....re, theft, skill pilferage of computer malfunction as per Warehousing Regulation. (xviii) The license holder shall regularly pay fees for supervision/services by the official signatory. (xix) The bonded warehouse shall be visited from time to time by inspector/ and/or Superintendent and/or Assistant/Deputy Commissioner and other officer from the Customs Department. Outdoor travelling expenses shall be borne by the licensee. 5. The Private bonded warehouse will remain under the charge of M/s Acme Heergarh Powertech Private Limited, having registered address at Plot No. 152, Sector 44, Gurgaon, Haryana-122002 premises at Plot No. 1 located at Khasra No. 102, 102/1, 102/4, 102/5. 102/18, 103/1, 103/2, 103/3, 103/4, 103/5, 103/6, 103/7, 103/8, 103/10, 103/11, 103/12, Village Badisid, Tehsil Bap, Jodhpur-342307. 6. The permission is granted to licensee subject to the strict observation of terms and conditions such Instruction/regulations/orders that may be issued time to time. (Rahul Nangare) Commissioner To, M/s Acme Heergarh Powertech Private Limited (Plot No. 1), Plot No. 152, Sector 44, Gurgaon....
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....s are removed from the warehouse. As the identical goods, i.e. electricity, may also be cleared for home consumption, the provision for removal for export shows that those goods, i.e. electricity, which are of the nature to which it is incapable to affix one-time-lock to the load compartment of the means of transport in which such goods are removed, fall squarely outside the scope of MOOWR 2019 because of inability to satisfy the essence of the prescribed condition. 3. Moreover, the Regulation 20 is that the Board, having regard to the nature of goods, their manner of transport or storage, may exempt a class of goods from any of the provisions of the MOOWR 2019. Neither this power has been exercised by Board to exempt goods in the nature of electricity from any of the provisions of MOOWR 2019, nor separate regulations relating to removal of electricity have been issued. 4. Incidentally, it may also be noted that the resulting electricity is also not ordinarily capable of being deposited in a warehouse. 5. Accordingly, the undersigned is directed to convey that grant of permission, as referred in para 1 above, is not in accordance with the MOOWR 2019 provi....
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....during the pendency of the writ petition on 26 August 2022. C. SUBMISSIONS OF ACME AND AVAADA 23. Appearing for the ACME and AVAADA entities in the instant batch of petitions, Mr. Sujit Ghosh, learned senior counsel, advanced the following submissions. Mr. Ghosh, at the outset contended that the grant of a licence is essentially a judicial act. It was his submission that the grant of a licence is preceded by the officer of Customs conducting an investigation and inquiry in order to verify the particulars set out in an application. Subsequently, after due application of mind, the officer of Customs may grant a licence if it be satisfied that the conditions for grant are fulfilled. According to Mr. Ghosh, it can be discerned from the above that once an application is made, the officer of Customs is required to act in a quasi-judicial manner. It was submitted that where the law requires an authority to make the requisite inquiry before arriving at a decision, it partakes the character of a quasi-judicial function. In support of the aforesaid submission, Mr. Ghosh placed reliance upon the following observations as appearing in Indian National Congress (I) vs. Institute of Social ....
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....ted our attention to the enunciation of the legal position as appearing in a decision rendered by the Madhya Pradesh High Court in Sukhlal vs Collector, Satna[1968 SCC OnLine MP 44] and where the following observations were made: "With this background we now come back to the question raised in this case regarding the nature of the duty imposed on the licensing authority by section 31(1) of the Central Provinces Excise Act in the matter of cancellation or suspension of a licence. We are here essentially concerned with clause (b) of section 31(1) as the petitioner's licence was cancelled under that clause That provision enables the licensing authority to cancel a licence "in the event of any breach by the holder there of or by any of his servants, or by anyone acting on his behalf with his express or implied permission of any of the terms or conditions there of." It must be noticed that the charge or breach of terms or conditions of a licence is one which will require investigation before it is found as a fact and if the licensee against whom such a charge is levelled is given an opportunity to meet it, it may be possible for him to disprove the same. Cancellation of a l....
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....en then such permission is liable to be construed as a judicial action. Mr. Ghosh submitted that the grant of permission contemplated under Section 65 of the Act would be preceded by investigation, ascertainment and verification of facts disclosed by the applicant against objective standards. The submission was that the grant of permission is thus not liable to be understood as being based upon a mere subjective satisfaction of an officer of Customs. Accordingly, Mr. Ghosh contended, the grant of a license under the MOOWR Regulations must be held to be a judicial act. Learned senior counsel submitted that if the aforesaid precepts are borne in mind, it would be manifest that para 5 of the impugned Instruction essentially directs the officer of Customs to review permissions which had been granted and take necessary follow-up action. 27. Emphasis was also laid on the impugned Instruction mandating that no further permissions in respect of solar power projects should be granted under the MOOWR Regulations. Mr. Ghosh contended that the net effect of the above would be that officers of Customs not only stand restrained from granting any future licenses, they are also compelled to rev....
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....the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party. The only provision under which the Board can issue directions is Rule 233 of the Rules framed under the Act. That rule says that the Board and the Collectors may issue written Instructions providing for any supplemental matters arising out of these Rules. Under this rule the only Instruction that the Board can issue is that relating to administrative matters; otherwise, that rule will have to be considered as ultra vires Section 35 of the Act" In view of the above, it was submitted that the direction as embodied in the impugned Instruction not to grant further licenses as well as to review existing licences would be in the teeth of the principles laid down in Orient Paper Mills. 29. Reliance was additionally placed on the following passages as appearing in the decision of the Delhi High Court in Faridabad Iron & Steel Traders Association vs. Union of India [2003 SCC Online Del 1300]. "92. Now we propose to examine the other main issue involved in the case, whether in the guise of the Circular the respondents have in fact brought o....
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....issioners of Central Excise (Appeals) and all Commissioners of Central Excise. Some of these bodies discharge quasi judicial functions. It is the settled position of law that quasi judicial functions cannot be controlled by executive actions by issuing circulars. It is totally impermissible. According to the spirit of Section 37B circulars or directions can be issued in order to achieve the object of uniformity and to avoid discrimination. Such circulars bind the officers only when they act in their administrative capacity. It must be clearly understood that the Board's circulars Instructions or directions cannot in any manner interfere with quasi judicial powers of the Assessing Officers. Officials exercising quasi judicial powers must ignore any circular or direction interfering with their quasi judicial functions. 96. Whenever any authority is conferred with the power to determine certain questions in judicial and/or quasi judicial manner, the authority is required to exercise the power conferred upon him as per his own discretion. This is the essence of judicial and quasi judicial function. The authority exercising such powers cannot be influenced by any directions....
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....partment as well that the impugned Standing Order is not binding; it is just in the nature of guidelines to streamline the functioning of Customs Officers at various field formations." 31. The validity of the impugned Instruction was also assailed on the basis of the same impinging upon the right of the statutory authority to bear its own independent and unfettered judgment in exercise of its quasi-judicial powers, and any fetter, if placed on the exercise of those powers being liable to be declared as wholly illegal. In support of the aforesaid proposition, Mr. Ghosh drew our attention to the judgment in Anirudhsinhji Karansinhji Jadeja vs. State of Gujarat[(1995) 5 SCC 302] and to para 11 of the report which is extracted hereinbelow: "11. The case against the appellants originally was registered on 19-3-1995 under the Arms Act. The DSP did not give any prior approval on his own to record any information about the commission of an offence under TADA. On the contrary, he made a report to the Additional Chief Secretary and asked for permission to proceed under TADA. Why? Was it because he was reluctant to exercise jurisdiction vested in him by the provision of Section 20....
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....or for the implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to any prohibition, restriction or procedure for import or export of goods, issue such orders, Instructions and directions to officers of customs as it may deem fit and such officers of customs and all other persons employed in the execution of this Act shall observe and follow such orders, Instructions and directions of the Board: Provided that no such order, Instructions or directions shall be issued- (a) so as to require any such officer of customs to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the Principal Commissioner of Customs or Commissioner of Customs (Appeals) in the exercise of his appellate functions." 34. As is manifest from a reading of the aforenoted provision, Section 151A enables the Board, if it considers it necessary or expedient so to do, to issue orders, instructions and directions to officers of Customs, if it is necessary or expedient for achieving uniformity in the classification of goods and the levy of ....
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....nded that the directive of the first respondent requiring the Customs authorities to review all permissions already granted and not to grant any licenses in the future is ultra vires Section 151A and is liable to be set aside. 37. Without prejudice to the above, and on merits, Mr. Ghosh submitted that the first respondent has clearly erred in coming to the conclusion that solar power projects are outside the purview of the MOOWR Regulations. Mr. Ghosh submitted that a bare perusal of Section 65 of the Act evidences the intention of the Legislature to permit manufacturing operations within a warehouse. Learned senior counsel sought to underline the fact that Section 65 of the Act does not exclude any particular industry from its operation. It was submitted that the MOOWR Regulations were first introduced in 1966 vide a notification dated 30 July 1966. The scheme was thereafter updated and reintroduced in terms of a notification issued on 19 June 2019. Our attention was also drawn to the notification dated 01 October 2019 in terms of which the MOOWR Regulations were reintroduced albeit with certain changes. According to Mr. Ghosh, a bare reading of Section 65 of the Act as well as....
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....f 20% came to be imposed on the import of solar modules and solar cells. However, according to Mr. Ghosh, solar cells and modules continued to be exempted from BCD by virtue of Notification No. 24/2005 dated 01 March 200520. It was pointed out by learned senior counsel that although and in terms of the Finance Act, 2022, the duty on the aforesaid articles came to be increased from 20% to 40% [solar modules] and 20% to 25% [solar cells modules], it was by virtue of Notification No. 15/2022- Cus. dated 01 February 2022 that the exemption granted to solar cells and solar modules by virtue of Entry 23 of the 2005 Notification came to be withdrawn and it was only thereafter that they became subject to the levy of BCD with effect from 01 April 2022. It was submitted that insofar as ACME is concerned, the grant of licence as well as certain imports which it made preceded the levy of BCD which came to be enforced with effect from 01 April 2022. Consequently, and according to Mr. Ghosh, it would be wholly incorrect to allege that the petitioner attempted to circumvent duty by availing the benefit of duty deferment under the MOOWR Scheme. According to Mr. Ghosh, this allegation would clearly....
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.... juncture to record the submissions of Mr. Venkataraman, the learned ASG before we proceed to notice the arguments addressed by Mr. Datar, learned senior counsel appearing for Jakson Power in order to lend lucidity and context to the discussion which ensues. D. SUBMISSIONS OF THE RESPONDENTS 43. The learned ASG firstly sketched out a brief history of the policy measures adopted by the Union Government in respect of solar energy. Mr. Venkataraman submitted that solar cells are classified under Tariff Entry 8541 42 00 whereas solar modules are placed in Tariff Entry 8541 43 00 of the First Schedule to the Customs Tariff Act, 1975[1975 Act]. It was pointed out that prior to 01 April 2022, solar cells and solar modules attracted "Nil" BCD. The learned ASG however drew our attention to Notification No. 01/2018-Customs (SG) dated 30 July 2018 and Notification No. 02/2020-Customs(SG) dated 29 July 2020 and in terms of which a safeguard duty was imposed in terms of Section 8B of the 1975 Act on both solar cells and solar modules. The trajectory and the manner in which the safeguard duty was imposed upon solar cells and solar modules was explained with the aid of the following table:-....
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....d the Department of Revenue of certain solar power developers misusing the provisions of the MOOWR Regulations so as to avoid customs duty and Goods and Services Tax [GST] on import of solar cells and modules. Our attention in this respect was drawn to the aforesaid communication which is extracted hereinbelow for ready reference:- "F. No. 283/31/2022-GRID SOLAR Government of India Ministry of New & Renewable Energy Grid Solar Power Division Block No. 14, C.G.O. Complex, Lodhi Road, New Delhi -110003 Dated: 27th July, 2022 OFFICE MEMORANDUM Sub: 'Manufacture and Other Operations in Warehouse (no. 2) Regulations, 2019 (MOOWR Scheme): Applicability to Solar PV Power Projects 1. It has been reported to Ministry of New & Renewable Energy (MNRE) that solar power developers are utilizing the provisions of 'Manufacture and Other Operations in Warehouse (no. 2) Regulations, 2019' (MOOWR) to avoid import duty and GST on imported solar equipment, while setting up solar power projects. The electricity thus generated from such projects into Domestic Tariff Area is without duty incidence of any kind, as electricity is not a physical good and is exempt f....
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....al expansion of an existing unit, import of goods are allowed at a concessional BCD of 0%, 2.5%, 5%, 7.5% depending upon the nature of the projects notified and which also included power projects. It was pointed out by Mr. Venkataraman that Project Imports are classified under Customs Tariff Heading[CTH] 9801 of the First Schedule to the 1975 Act and assessment of imported goods is undertaken on the basis of the project as a whole under a single heading and irrespective of the classification of different components for ease of assessment and facilitation of trade. 50. Our attention was also drawn to a representation made by the North India Module Manufacturer Association dated 02 August 2022 and which had apprised the respondents that in the case of a power developer, more than 90% of the import content is in the form of a solar module. They had accordingly submitted that for solar power developers, the applicable Project Import rate of duty should be 40% in order to level the playing field between solar power developers who directly import and those which may use solar cells and modules manufactured in India. 51. Mr. Venkataraman submitted that it was bearing the aforesaid f....
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.... for solar cells and modules which were manufactured indigenously and the remainder 50% capacity as comprising of those which could be set up with the use of imported modules. This reservation, we were informed, was ultimately removed in January 2018, consequent to a challenge which was raised by the United States of America in the World Trade Organization. 54. The learned ASG also drew our attention to the following data pertaining to import of solar cells and modules:- "Imports 2018-19 2019-20 2020-21 2021-22 2022-23 2023-24 (till Dec) Solar Cells 3,211 6,499 9,896 8,010 Solar Modules 9,871 40,333 3,935 22,516 Solar Cells & Modules 15,106 11,900 13,090 46,832 13,831 55. It was also pointed out that after imposition of BCD in 2022-23, the country had seen a reduction in imports. However, import of solar modules are stated to have increased in 2023-24. The data on import stands encapsulated in the following chart:- "Year Capacity Addition (in GW) Imports of Solar Modules (in Rs Cr) &n....
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....roduction Linked Incentive Scheme (Tranche-II) (RfS No. SECl/C&P/Ml/00/0009/22-23 dated 18.11.2022) Basket-1 (P+W+C+M) Ranking of Bidders Name of Bidder PLI Amount allocated (Rs. Cr.) Manufacturing Capacity (MW) PLI Eligible Capacit y (MW) 1 Indosol Solar Private Limited 3300 6000 3000 2 Reliance New Solar Energy Limited 3098.04 6000 3000 3 FS India Solar Ventures Private Limited 1177.573 3400 1700 Total 7575.613 15400 7700 Basket-2 (W+C+M) Ranking of Bidders Name of Bidder PLI Amount allocated (Rs. Cr.) Manufacturing Capacity (MW) PLI Eligible Capacit y (MW) 1 Waaree Energies Limited 1923.24 6000 3000 2 Avaada Ventures Private Limited 961.62 3000 1500 3 ReNew Solar (Shakti Four) Private Limited 1538.592 4800 2400 4 JSW Renewable Technologies Limited 320.54 1000 500 5 Grew Energy Private ....
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....was that customs duty becomes leviable immediately upon import. Proceeding further, the learned ASG drew our attention to Sections 14 and 15 of the Act and which prescribe the manner in which the value of imported goods is to be determined. It was pointed out that while Section 14(1) embodies principles of transaction value, in case the same is unavailable, valuation is to be undertaken in accordance with the provisions comprised in the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and in the case of exports, the Customs Valuation (Determination of Value of Export Goods) Rules, 2007. The date for determination of rate of duty and tariff valuation is a subject which is regulated by Section 15. The said provision prescribes that the relevant rate of duty and tariff valuation would be that which is prevalent and in force on the date on which a Bill of Entry[BOE] for home consumption is presented and where the goods are cleared from a warehouse under Section 68, the relevant date would be the date on which a BOE for home consumption in respect of such "warehoused goods" is submitted. In terms of Section 15, the learned ASG submitted that "in the case of any o....
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....y of the goods consequent to import being placed in a warehouse as opposed to home consumption, the importer is placed under the statutory obligation to execute a bond in a sum equivalent to thrice the amount of duty assessed on such goods. It is on the execution of a bond under Section 59 that the proper officer may make an order permitting the movement of those goods from a custom station to a licensed warehouse. 65. The learned ASG submitted that on a cumulative reading of the aforesaid provisions, the position which would emerge would be as follows. An importer can warehouse only such goods which are dutiable and have been imported into India. It was submitted that should an importer opt for warehousing the goods, it becomes obligated to execute a bond for a sum equal to thrice the amount of duty assessed on such goods. Only if the said bond is executed, would the proper officer permit the removal of the imported goods from the customs station to the bonded warehouse. According to the learned ASG, the applicability of Sections 61 and 65 would have to be appreciated bearing in mind the following indubitable facts. 66. Mr. Venkataraman submitted that a bare perusal of Secti....
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....f Section 65. 68. In order to buttress the aforesaid submission, the learned ASG also resorted to the following illustration: - "If importer 'A' imports plastic granules into India for use in the manufacture of HDPE sacks, and the said importer A' imports both capital goods in the form of plant or machinery, and also plastic granules, the capital goods (plant and machinery) can be warehoused under Section 61(a) and the plastic granules can be warehoused under Section 61(b). The conversion of the plastic granules into plastic tapes, plastic circular bags and into HDPE sacks would qualify as manufacture or other operations of the warehoused goods, namely plastic granules. And the capital goods (plant and machinery) employed in the manufacture of HDPE sacks out of the plastic granules imported and warehoused would also qualify for the benefit." 69. The learned ASG submitted that undisputedly sunlight would not qualify as "imported goods" or "warehoused goods" as defined in Section 2(44) of the Act. It was contended that since no "manufacturing process or other operations" is carried out on the "warehoused goods", the question of extending the benefit of Section 65 to th....
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....h has been incurred by the assessee "in relation to income which does not form part of the total income under this Act". Axiomatically, it is that expenditure alone which has been incurred in relation to the income which is includible in total income that has to be disallowed. If an expenditure incurred has no causal connection with the exempted income, then such an expenditure would obviously be treated as not related to the income that is exempted from tax, and such expenditure would be allowed as business expenditure. To put it differently, such expenditure would then be considered as incurred in respect of other income which is to be treated as part of the total income. 42. There is no quarrel in assigning this meaning to Section 14-A of the Act. In fact, all the High Courts, whether it is the Delhi High Court on the one hand or the Punjab and Haryana High Court on the other hand, have agreed in providing this interpretation to Section 14-A of the Act. The entire dispute is as to what interpretation is to be given to the words "in relation to" in the given scenario viz. where the dividend income on the shares is earned, though the dominant purpose for subscribing in th....
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....plicability of Section 14-A. *** 36. The theory of apportionment of expenditures between taxable and non-taxable (sic income) has, in principle, been now widened under Section 14-A." 71. Mr. Venkatraman then sought to draw sustenance from a decision rendered by a Full Bench of the Allahabad High Court in Haji Ismail Noor Mohammad & Company v. State of Uttar Pradesh & Anr31 while seeking to explain the meaning to be assigned to the expression "such" and reliance in this regard was placed on the following paragraphs of the said decision: "11. In my opinion, the phrase "subject to such conditions as may be prescribed" in the sentence "the assessing authority shall grant to the dealer in respect of such goods a recognition certificate in such form and subject to such conditions as may be prescribed" is intimately and integrally connected with the phrase "if the applicant satisfies such requirements and conditions as may be prescribed" occurring in the immediately preceding clause of sub- section (2). The prescribed requirements and conditions which the applicant has to satisfy are the conditions to which the recognition certificate can be made subject unde....
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....ing course recognizsed by the State Government or the Board such as (Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate or Certificate of Training). (2) The minimum qualification for the appointment to the post of Headmaster of a recognized School shall be as followed:-- (a) A degree from a recognized University or an equivalent examination recognized as such; (b) A teacher's training course recognized by the State Government or the Board such as (Hindustani Teaching Certificate, Junior Teaching Certificate, Basic Teaching Certificate, or Certificate of Training); and (c) Three years teaching experience in a recognized schools." 8. A perusal of this Rule indicates that a teachers training certificate is essential qualification for the post of head master. The use of expression such as in Rule 4 (2) (b) was relief in support of the submission that it would include B.Ed. The expression 'such' has been defined in Webster's Third New International Dictionary as below:-- "1. Or a kind or character about to be indicated, suggested or exemplified. 2. Having a quality alread....
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....vided in Rules, 1978. It provides teachers training qualification consisting of a Basic Teacher's Certificate, Hindustani Teacher's Certificate, Certificate of Training or any other training course recognized by the Government as equivalent thereto. The essential qualification for appointment of head master of Junior Basic Schools is five years teaching experience as assistant master of Junior or Senior Basic Schools. After for appointment of head master of Senior Basic Schools three years teaching experience as permanent head master of Junior Basic Schools; or permanent assistant teacher of Senior Basic Schools. Therefore, only that assistant teacher who possessed the essential teachers training qualification as provided by the Rule 8 could be appointed head master. Teachers training qualifications prescribed by Rule 4(2)(b) of Rules, 1978 and Rule 8 of Rules, 1981 are same. In 1998 there were large number of vacancies of about twenty eight thousand assistant teachers in basic Schools, but candidates with B.T.C. or equivalent training qualifications were not available. The candidates were available who had L.T. and B.Ed. or other equivalent qualifications which are essenti....
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....d Rule 4(2)(b) of Rule, 1978 are same, therefore, B.Ed. training qualification of petitioner cannot be treated to be equivalent or higher, to teachers training qualification "envisaged by Rule 4(2)(b) of Rules 1978. Therefore, the respondent No. 4 was not qualified to be appointed as head master of the institution and his appointment is liable to be quashed. 12. Shri Khare learned Counsel for respondent No. 4 has argued that where a minimum qualification has been prescribed under the Rules candidates who possess higher qualification cannot be left out from the zone of consideration. He placed reliance on decision of the Apex Court in Mohd. Riazul Usman Gani and Ors. Vs. District and Session Judge, Nagpur and Ors. 2000 (2) ESC 956 (SC). This decision of the Apex Court is not of any held to the respondents. In paragraph 21 of the Apex Court observed that the law laid down was on its own facts and it was not laying down any Rule for universal application. The Court said so as minimum 11 qualification laid down for peon was making the provision for promotion of a peon as clerk and Regional (Language) Section Writers under the recruitment Rules nugatory. It was held that criter....
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....tted that the Proviso to Regulation 14 also lends credence to the stand of the respondents when it speaks of "resultant goods" being cleared for home consumption. 75. It was thus submitted that consequently the expression "warehoused goods" can only be construed to be raw materials or inputs on which a manufacturing operation has been carried out. The aforesaid position, according to the learned ASG also comes to the fore on a reading of Regulation 14 of the MOOWR Regulations and which introduced the concept of the "warehoused goods contained in so much of the resultant goods" and the said aspect being required to be duly filled in the BOE for home consumption. This too, according to the learned ASG, would lead one to the irresistible conclusion that the capital goods which are spoken of and are contemplated can be only those which constitute a raw material or input which gets subsumed in a process of manufacture or other operation while they are present in the warehouse. E. SUBMISSIONS OF JAKSON POWER PRIVATE LIMITED 76. Controverting the submissions which were addressed by the learned ASG, Mr. Datar, learned senior counsel, who appeared for Jakson Power Private Limited s....
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....ed on the Circular No. 34/2019-Customs dated 01 October 201933 issued by the Customs authorities and which had specifically declared that units operating under Section 65 read with Section 58 of the Act would be entitled to import capital goods, machinery as well as inputs. 78. Mr. Datar then drew our attention to the promotional material appearing on the "Invest India" portal to submit that even the Union Government had taken the unequivocal position that import duty on capital goods would be payable only once those goods are cleared to the domestic market. In this regard, Mr. Datar referred to the following slides which sought to highlight the advantages of bonded warehousing and manufacturing: 79. Emphasis was also laid on the unequivocal stance taken by the Union Government and which had in unqualified terms held out that capital and non-capital goods could remain warehoused until clearance or consumption. According to Mr. Datar, in the absence of Sections 61 and 65 or for that matter the MOOWR Regulations excluding a particular category of goods from its ambit, it would be wholly incorrect for the respondents to assert that generation of electricity from within a warehou....
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.... a series of decisions of this Court and the Bombay High Court, Guttal, J., Pendse, J. and Daud, J. had taken the view that such injunction suits can be said to be relating to the possession of the immovable property. Sawant, J. has taken a contrary view. We shall deal with these relevant decisions at a later stage of this judgment. However, on the clear language of the section, in our view, it cannot be said that these suits are not relating to the possession of the immovable property. It is pertinent to note that Section 41(1) does not employ the words "suits and proceedings for recovery of possession of immovable property". There is a good deal of difference between the words "relating to the recovery of possession" on the one hand and the terminology "for recovery of possession of any immovable property". The words relating to' are of wide import and can take in their sweep any suit in which the grievance is made that the defendant is threatening to illegally recover possession from the plaintiff-licensee. Suits for protecting such possession of immovable property against the alleged illegal attempts on the part of the defendant to forcibly recover such possession from the plai....
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....ce of repetition of the same phrase in the same clause or sentence, a method followed in good drafting. The word 'pertain' is synonymous with the word 'relate', see Corpus Juris Secundum, Vol. 17, page 693. The expression 'in relation to' (so also 'pertaining to'), is a very broad expression which presupposes another subject-matter. These are words of comprehensiveness which might have both a direct significance as well as an indirect significance depending on the context, see State Wakf Board v. Abdul Azeez [AIR 1968 Mad 79 : (1967) 1 MLJ 190] , following and approving Nitai Charan Bagchi v. Suresh Chandra Paul [66 CWN 767] , Shyam Lal v. M. Shyamlal [AIR 1933 All 649 : 1933 All LJ 728] and 76 Corpus Juris Secundum 621. Assuming that the investments in shares and in lands do not form part of the undertakings but are different subject-matters, even then these would be brought within the purview of the vesting by reason of the above expressions. In this connection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term 'relate' is also defined as meaning to bring into association or connection with. It has been clearly mentioned that '....
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....cture" has many shades and would cover various situations based on the purpose for which the input is used. However, the specified input would become eligible for credit only when used in or in relation to the manufacture of final product." 83. Mr. Ghosh thus submitted that the phrase "in relation to" when used in conjunction with manufacture, would extend to actual uses in manufacture as well as where the goods may be used for assisting a process of manufacture. Mr. Ghosh also sought to draw a distinction between the expression "in manufacture of", and which according to learned counsel would denote direct participation, while the phrase "in relation to" would denote indirect participation. 84. In conclusion, Mr. Ghosh submitted that it is apparent from a plain reading of Section 61 that capital goods could remain warehoused till they are ultimately cleared therefrom. It was highlighted that contrary to the above, goods other than capital goods are ordained by the statute to be entitled to be warehoused till such time as they are ultimately consumed or cleared from the warehouse. According to learned senior counsel, the only qualifying criteria which stands erected in terms ....
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....ns to clearance of imported and exported goods and for the purposes of considering the issues which stand raised, we deem it apposite to extract Sections 47 and 48 hereunder: "47. Clearance of goods for home consumption.- (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. Provided that such order may also be made electronically through the customs automated system on the basis of risk evaluation through appropriate selection criteria: Provided further that the Central Government may, by notification in the Official Gazette, permit certain class of importers to make deferred payment of said duty or any charges in such manner as may be provided by rules. (2) The importer shall pay the import duty- (a) on the date of presentation of the bill of entry in the case of self-assessment; or (b) within one day (excluding holidays) from the date on which the bi....
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....is regulated by Chapter IX of the Act and the principal provisions with which we are concerned are Sections 61 and 65. Section 61 stipulates the period for which the "warehoused goods" may be deposited in a bonded warehouse. We in this respect also deem it apposite to take note of certain significant amendments which were made to that provision vide Act 28 of 2016 (with effect from 14 May 2016). A comparative table is set out hereinbelow: Section 61 of the Act, as it existed prior to Act 28 of 2016 Section 61 of the Act, as it exists post the enactment of Act 28 of 2016 ―61. Period for which goods may remain warehoused.-(1) Any warehoused goods may be left in the warehouse in which they are deposited or in any warehouse to which they may be removed,- (a) in the case of capital goods intended for use in any hundred per cent export-oriented undertaking, till the expiry of five years; (aa) in the case of goods other than capital goods intended for use in any hundred per cent. export-oriented ―61. Period for which goods may remain warehoused.- (1) Any warehoused goods may remain in the warehous....
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....cer has made an order under sub-section (1) of Section 60: Provided that in the case of any goods referred to in this clause, the Principal Commissioner of Customs or Commissioner of Customs may, on sufficient cause being shown, extend the period for which the goods may remain in the warehouse, by not more than one year at a time: Provided further that where such goods are likely to deteriorate, the period referred to in the first proviso may be reduced by the Principal Commissioner of Customs or Commissioner of Customs to such shorter period as he may warehouse or clear them for home consumption or exportation. Where any warehouse goods- • specified in sub-clause (a) or sub- clause (aa) of sub-section (1), remain in a warehouse beyond the period specified in that sub-section by reason of extension of the aforesaid period or otherwise, interest at such rate as is specified in Section 47 shall be payable, on the amount of duty payable at the time of clearance of the goods in accordance with the provisions of Section 15 on the warehouse goods, for the period from the expiry of the said warehousing period till the date of payment of dut....
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....the purposes of this section, ―hundred per cent export- oriented undertaking‖ has the same meaning as in Explanation 2 to sub- section (1) of Section 3 of the Central Excises and Salt Act, 1944.‖ Explanation.-For the purposes of this section,- • ―electronic hardware technology park unit‖ means a unit established under the Electronic Hardware Technology Park Scheme notified by the Government of India; • ―hundred per cent export oriented undertaking‖ has the same meaning as in clause (ii) of Explanation 2 to sub-section (1) of Section 3 of the Central Excise Act, 1944 (1 of 1944); and (iii) ―software technology park unit‖ means a unit established under the Software Technology Park Scheme notified by the Government of India.‖ 89. Section 65 of the Act and which deals with "manufacturing and other operations" with respect to goods housed in a warehouse is extracted hereinbelow: "65. Manufacture and other operations in relation to goods in a warehouse.-(1) With the permission of the Principal Commissioner of Customs or Commissioner of Customs and [subject to the p....
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....housed goods shall not be allowed to relinquish his title to such goods regarding which an offence appears to have been committed under this Act or any other law for the time being in force." 91. The MOOWR Regulations framed in terms of the powers conferred by Sections 157, 143AA read along with Section 65 came to be promulgated on 01 October 2019. The scope of those Regulations and its application is defined by Regulation 3 which reads thus: "3. Application.-These regulations shall apply to- (i) the units that operate under Section 65 of the Act, or (ii) the units applying for permission to operate under Section 65 of the Act," 92. The eligibility criteria is prescribed by Regulation 4 and which reads as follows: "4. Eligibility for application for operating under these regulations. - (1) The following persons shall be eligible to apply for operating under these regulations, - (i) a person who has been granted a licence for a warehouse under section 58 of the Act, in accordance with Private Warehouse Licensing Regulations, 2016. (ii) a person who applies for a licence for a warehouse under section 58 of the Act, along wit....
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.... of the means of transport carrying the goods to the warehouse; (ii) inform the bond officer immediately if the one-time-lock is not found intact, and refuse the unloading of the goods; (iii) allow unloading, provided the one-time-lock is found intact and verify the quantity of goods received by reconciling with the bill of entry for warehousing; (iv) report any discrepancy in the quantity of the goods within twenty-four hours to the bond officer; (v) endorse the bill of entry for warehousing with the quantity of goods received and retain a copy thereof; (vi) acknowledge the receipt of the goods by endorsing the transportation document presented by the carrier of the goods and retain a copy thereof; and (vii) take into record the goods received. (2) Upon taking into record the goods received in the warehouse, the licensee shall cause to be delivered an acknowledgement to the proper officer referred to in sub-section (1) of section 60 and to the bond officer regarding the receipt of the goods in the warehouse." 96. The MOOWR Regulations also contemplate movement of goods between two warehouses and which aspect is regu....
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....documents to the bond officer." 98. Regulations 14 and 15 of the MOOWR Regulations are concerned with the subject of removal of "resultant goods" either for home consumption or for export and are framed as follows: "14. Removal of resultant goods for home consumption. - (1) A licensee may remove the resultant goods from warehouse for home consumption: Provided that a bill of entry for home consumption has been filed in respect of the warehoused goods contained in so much of the resultant goods and the import duty, interest, fine and penalties payable, if any, in respect of such goods have been paid. (2) The licensee shall retain a copy of the bill of entry filed and take into record the goods removed." "15. Removal of resultant goods for export. - (1) A licensee shall remove the resultant goods from the warehouse for export, upon, - (i) filing a shipping bill or a bill of export, as the case may be; and (ii) affixing a one-time-lock to the load compartment of the means of transport in which such goods are removed from the warehouse. (2) The licensee shall take into record the goods removed." 99. Since the power of....
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....goods contained in the resultant product as per the provisions of section 69 of the Act. 8. To the extent that the resultant product (whether emerging out of manufacturing or other operations in the warehouse) is cleared for domestic consumption, such a transaction squarely falls within the ambit of "supply" under Section 7 of the Central Goods and Service Tax Act,2017 (hereinafter referred to as the, "CGST Act"). It would therefore be taxable in terms of section 9 of the CGST Act, 2017 or section 5 of the Integrated Goods and Services Tax Act, 2017 depending upon the supply being intra-state or inter-state. The resultant product will thus be supplied from the warehouse to the domestic tariff area under the cover of GST invoice on the payment of appropriate GST and compensation cess, if any. As regards import duties payable on the imported goods contained in so much of the resultant products are concerned, same shall be paid at the time of supply of the resultant product from the warehouse for which the licensee shall have to file an ex-bond Bill of entry and such transactions shall be duly reflected in the accounts prescribed under Annexure B. As per MOOWR, 2019, the appl....
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....ate of duty into a warehouse operating under section 65 has also been raised. The objective of section 65 is to enable manufacture and other operations in customs bonded warehouses. For this purpose, the units should be able to procure required raw materials, consumables, capital goods etc., imported or procured from domestic market. The goods may include dutiable goods, exempt goods or those chargeable to nil rate of duty. Denial of the facility to exempt goods or those chargeable to nil rate of duty, which may be required for manufacturing, would defeat the objective of Section 65. It is therefore clarified that imported goods, that are exempt from duty or are chargeable to nil rate of duty, may be brought into the warehouse, upon filing a bill of entry for home consumption and clearance, at the customs station of import. Such goods shall not be considered as warehoused goods in terms of section 60 of the Act. xxxx xxxx xxxx 15.1 Given the continuous nature of operations in warehouses under section 65, and the potential need to clear resultant goods expeditiously, the requirement to obtain prior permission of the proper officer for each clearance could pose a ch....
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....d to the Jurisdictional Commissioner of Customs within 15 days." 102. In compliance with the aforesaid requirement, the petitioner in W.P.(C) 10537/2022 - ACME Heergarh Powertech Private Limited had while moving its application made the following declarations: "DESCRIPTION OF GOODS PROPOSED TO BE MANUFACTURED OR OTHER OPERATIONS PROPOSED TO BE CARRIED OUT FINAL PRODUCT Description of finished goods out o manufacturing or other operations undertaken Classification as Customs Tariff Electrical energy 2716 GOODS PROPOSED TO BE IMPORTED Description of goods Classification as Customs Tariff Capital goods required for setting up the facility Likely to be imported under Chapter 85 GOODS PROPOSED TO BE DOMESTICALLY PROCURED Description of goods HSN Classification Capital goods required for setting up the facility Likely to be procured under Chapter 32, 38, 72, 85, 90, 94 etc. BRIEF DESCRIPTION OF THE PROPOSED FACILITY The company is going to set up solar power plant with the generation capacity of around 300 MV. For this purpos....
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....has come to the notice of Ministry of New & Renewable Energy (MNRE) that solar PV power project developers are obtaining warehouse licenses under the said MOOWR 2019. 5. Solar PV power projects / solar parks are developed for generation of renewable energy (electricity). While such projects/ parks are identifiable and have secure boundaries with entry- exit checks and other criteria, thus technically satisfying the definition of a 'customs bonded warehouse', it is to be noted that these solar power projects use duty deferred solar equipment to generate electricity, which is ultimately sold in the Domestic Tariff Area (DTA). Thus, the regulation is being used for avoidance of duty incidence on imported solar equipment thus lowering the cost of setting up the solar power plant. 6. For solar PV power project developers, solar equipment required for generation of electricity, when imported to a solar PV power project having the license of 'Customs Bonded Warehouse' under MOOWR, will qualify as capital goods, for which BCD and IGST will be deferred till the time such goods remain within the Customs Bonded Warehouse. Solar Modules will remain within the ....
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....he aid of imported capital goods. The aforesaid representation appears to have preceded the issuance of the impugned Instruction. The learned ASG in this respect had also drawn our attention to the amendments introduced in the Project Import Regulations, 1986 and as a consequence of which from 20 October 2022, solar power projects and power plants came to be excluded from the purview of the said Regulations. Reference in this respect was also made to the Union Budget introduced for 2023-24 and in terms of which CTH 9801 also came to be amended, so as to exclude solar power plants and solar power projects from the purview of Project Imports. We were also referred to yet another amendment introduced in the Project Import Regulations, 1986, whereby the omnibus entry "Any other Plant and Project" was amended to exclude solar power plants and solar power projects and the amended omnibus entry reads as "Any other Plant and Project, other than solar power plant or solar power project" 105. All of this, according to the learned ASG, was indicative of the policy decision taken by the Union Government to incentivize domestic manufacturing of solar cells and modules and to thus give impetu....
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....uctions or directions, which may require an officer of Customs to "make a particular assessment or to dispose of a particular case in a particular manner". The Board also stands restrained from framing instructions, orders or directions which may interfere with the discretion vested with the Principal Commissioner of Customs or Commissioner of Customs (Appeals) in exercise of its appellate functions. 108. As we read Section 151A of the Act, it is manifest that it stands confined to broad policy directives concerning the working of the Act and which alone could form the subject matter of the exercise of power. Para 2 of the impugned Instruction embodies the opinion of the Board that since electricity may also be cleared for home consumption in the course of a manufacturing process undertaken in the warehouse, it would be incapable to comply with the affixation of the one-time-lock provision contained in the MOOWR Regulations. The Board appears to have understood the scope of the MOOWR Regulations as invariably requiring the affixation of a one-time-lock at the stage when the "resultant goods" are being removed from the warehouse. The stand appears to be that since electricity can....
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....aw for the time being in force, suspend operation of the warehouse during the pendency of an enquiry under sub-section (1). (3) Where the operation of a warehouse is suspended under sub-section (2), no goods shall be deposited in such warehouse during the period of suspension: Provided that the provisions of this Chapter shall continue to apply to the goods already deposited in the warehouse. (4) Where the licence issued under Section 57 or Section 58 or Section 58-A is cancelled, the goods warehoused shall, within seven days from the date on which order of such cancellation is served on the licensee or within such extended period as the proper officer may allow, be removed from such warehouse to another warehouse or be cleared for home consumption or export: Provided that the provisions of this Chapter shall continue to apply to the goods already deposited in the warehouse till they are removed to another warehouse or cleared for home consumption or for export, during such period." 111. Significantly, the power to cancel a license duly granted would be liable to be exercised where it is found that the licensee has either contravened any of th....
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....ne Del 2437] and which was concerned with the issuance of circulars referable to Section 151A of the Act. In terms of the circulars which formed the subject matter of that decision, the Board had framed directives that gold jewellery imported by members of the petitioner association from Indonesia should be denied the benefit of preferential custom duty and that provisional assessments in respect of the imported gold jewellery from Indonesia were required to be made in a particular manner. While dealing with the question of whether such directions could have in fact been issued, the Court had held as follows: "49. The Court next proceeds to examine if in issuing the Impugned Circular and subsequent Instructions the Respondents exceeded the scope of their authority under Section 151A of the Act. The proviso (a) to Section 151A of the Act does not permit the issuance of Instructions, orders, and directions which might require an Officer of Customs to make a particular assessment or to dispose of a particular case in a particular manner. This prohibition is not different from Section 119 of the Income Tax Act, 1961 and section 37B of the Central Excise Act, 1944. The legal po....
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....utorily issued has been examined by this court in several cases. A circular cannot take away the effect of notifications statutorily issued. In fact in certain cases it has been held that the circular cannot whittle down the exemption notification and restrict the scope of the exemption notification or hit it down. In other words it was held that by issuing a circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed. The principle is applicable to the instant cases also, though the controversy is of different nature." 52. In UCO Bank v. CIT [1999] 237 ITR 889 (SC), it was held that (page 899 of 237 ITR): "Such circulars, however, are not meant for contradicting or nullifying any provision of the statute. They are meant for ensuring proper administration of the statute, they are designed to mitigate the rigours of the application of a particular provision of the statute in certain situations by applying a beneficial interpretation to the provision in question so as to benefit the assessee and make the application of the fiscal provision, in the present case, in consonance with the concept of income....
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....far as the circular dated January 20, 2016 is concerned, regulation 2(2) of the Customs (Provisional Duty Assessment) Regulations, 2011 provides for a maximum payment of only 20 per cent of duty differential in the case of a provisional assessment. The insistence on a bank guarantee for the entire differential duty appears to be contrary to regulation 2(2). The court is unable to accept the plea of Mr. Dubey that the above circular emerges from the regulation 4 and is intended to adequately secure the Revenue and ensure uniformity of provisional assessments across all ports. The said circular does not leave the issue of what conditions should be imposed for provisional assessment to the concerned customs officer. It requires the officer to demand 100 per cent. bank guarantee even in respect of those bills of entries which have been provisionally assessed under section 18 of the Act. It certainly is contrary to proviso (a) to section 151A inasmuch it dictates to the customs officer in what manner he should complete a provisional assessment. The consequent impugned letter dated January 22, 2016 came to be issued to M/s. J. B. Overseas only on the basis of the said circular." 115. ....
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..... It is totally impermissible. According to the spirit of Section 37B circulars or directions can be issued in order to achieve the object of uniformity and to avoid discrimination. Such circulars bind the officers only when they act in their administrative capacity. It must be clearly understood that the Board's circulars Instructions or directions cannot in any manner interfere with quasi judicial powers of the Assessing Officers. Officials exercising quasi judicial powers must ignore any circular or direction interfering with their quasi judicial functions. 95. Whenever any authority is conferred with the power to determine certain questions in judicial and/or quasi judicial manner, the authority is required to exercise the power conferred upon him as per his own discretion. This is the essence of judicial and quasi judicial function. The authority exercising such powers cannot be influenced by any directions, Instructions or the Circulars that may be issued by any other agency. Consequently, the Circular issued by the respondents cannot be permitted to interfere with the discretion of the judicial and quasi judicial authorities. 96. The power to impose tax....
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.... The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them." The subject of abdication is more lucidly explained in De Smith's Judicial Review [De Smith's Judicial Review, Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, Catherine Donnelly, Ivan Hare, Sweet & Maxwell, 7th edition (2013)] in the following words: - "Acting under dictation An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person..... Where a minister entertaining a planning appeal dismissed the appeal purely on the strength of policy objections entertained by another minister, it was held that his decision had to be quashed because he had, in effect, surrendered his discretion to another minister. Authorities directly entrusted with statutory discretions, be they executive officers or members of distinct tribunals, are usually entertained....
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....tead of forwarding an order which another authority had purported to pass." 120. Undisputedly, the power to consider whether a license is liable to be cancelled under Section 58B of the Act would place the licensing authority under the obligation to examine whether a licensee had either acted in violation of the Act or contravened a statutory provision or command. In light of the impugned Instruction, the petitioners now face the inevitable specter of the license being cancelled consequent to the peremptory directions as contained in the communication of the Board. Since the directive of the Board binds the licensing authorities, the exercise of calling upon the petitioners to show cause is essentially rendered otiose and a mere formality. This, more so when the Board has already come to the definitive conclusion that solar power generation is an activity which would fall outside the ambit of Section 65 of the Act as well as the MOOWR Regulations. The Instruction thus clearly amounts to a dictate binding the licensing authority to cancel all subsisting licenses and thus falling foul of the principles noticed above. 121. Regard must also be had to the fact that the petitioner ....
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....Customs Jaipur/2021 dated 31.10.2021 Total Area 235.6868 Acres at Village Aarang, Tehsil- Shiv, Dist- Barmer (Raj.) 5 CUS/LIC/MISC/187/2 021- Tech-O/o Commr- Cus-Prev- Jodhpur 12/PBW/ACME Aklera Plot-3/ Customs Jaipur/2021 dated 31.10.2021 Total Area 269.16 Acres at Village Aarang, Tehsil- Shiv, Dist- Barmer (Raj.) 6 CUS/LIC/MISC/188/2 021- Tech-O/o Commr- Cus-Prev- Jodhpur 13/PBW/ACME Aklera Plot-4/ Customs Jaipur/2021 dated 31.10.2021 Total Area 81.16 Acres at Village Aarang, Tehsil- Shiv, Dist- Barmer (Raj.) 7 CUS/LIC/MISC/189/2 021- Tech-O/o Commr- Cus-Prev- Jodhpur 14/PBW/ACME Deoghar/ Customs Jaipur/2021 dated 05.11.2021 Total Area 1046.88 Acres at Village Sanwada, Tehsil- Pokaran, Dist- Jaishalmer (Raj.) 8 CUS/LIC/MISC/190/2 021- Tech-O/o Commr- Cus-Prev- Jodhpur 15/PBW/ACME Phalodi / Customs Jaipur/2021 dated 05.11.2021 Total Area 999.168 Acres at Village Sanwada, Tehsil- Pokaran, Dist- Jaishalmer (Raj.) 9 CUS/LIC/MISC/191/2 021- Tech-O/o Commr- Cus-Prev- Jodhpur ....
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....ort as the case may be and affixing a one-time-lock to the load compartment of the menus of transport in which such goods arc removed from the warehouse. In the case of resultant product i.e. electricity, the conditions laid down in the regulations are not satisfied. iii. Similarly, for removal of resultant goods for Home Consumption, provision are laid down in of Regulation 14 (removal of resultant goods from the warehouse for home consumption) of Manufacture and Other Operations in Warehouse (No.2) Regulations, 2019. The licensee is required to file a bill of entry for home consumption in respect of warehoused goods taking into account the goods removed. Since Electricity so generated cannot be deposited in warehouse/warehoused it is not feasible to file the proper Bill of Entry. iv. Further, looking to the nature of resultant goods, their manner of transport or storage, Board has also not given any exemption from any of the provisions of MOOWR, 2019 and also has not framed any Regulations relating to removal of electricity. v. In view of the above electricity falls squarely outside the scope of MOOWR 20J9 because of inability to satisfy the essence of ....
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.... of "any warehoused goods" may in terms of the permission granted, store or house those goods and carry on "any manufacturing process or other operations". A plain reading of Section 65 suggests that a manufacturing process may be undertaken in a licensed warehouse and the same could extend to any category of goods. The provision does not use words of qualification or limitation insofar as either the nature of goods or manufacturing activity is concerned. The aforesaid aspect is liable to be appreciated additionally in light of Section 61 extending its application to capital goods, non-capital goods as well as other goods. The said provision thus contemplates contingencies where any of the three categories of goods may be imported and housed in a warehouse for purposes which are spoken of in Section 65. The position which thus emerges is that the expanse of Section 61 and 65 cannot be recognised as being either restricted or limited to a particular or compartmentalized genre of goods or type of manufacturing activity. 124. Sub-section (2) of Section 65 principally deals with the subject of waste or refuse which may be generated in the course of manufacture or other operations. I....
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....of manufacturing within the country as opposed to the nature of the end product that may be obtained. This becomes evident when one bears in consideration the focus of the scheme being manufacturing in India and the statutory provisions desisting from confining the benefits flowing therefrom to a particular line of industry or the nature of the resultant product. The mere fact, therefore, that in the case of solar generation it would be impossible to stipulate an input-output ratio would hardly be decisive or determinative of the question that stands posited. 127. Take for instance a situation where capital goods come to be placed in a warehouse for the manufacture of specialized textiles. While the capital goods would undoubtedly be used in relation to the manufacture of those textiles, the resultant product would contain no element of those goods. Similar would be the position which would obtain in the case of manufacture of an automobile accessory. In such a scenario too, while the capital goods would have been used in the manufacture of the end product, they would not get subsumed. It would thus be wholly incorrect to assume that such types of manufacturing activity are eith....
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....ipment or accessories required for manufacture or production, either directly or indirectly, of goods or for rendering services, including those required for replacement, modernisation, technological upgradation or expansion. Capital goods also include packaging machinery and equipment, refractories for initial lining, refrigeration equipment, power generating sets, machine tools, catalysts for initial charge, equipment and instruments for testing, research and development, quality and pollution control. Capital goods may be for use in manufacturing, mining, agriculture, aquaculture, animal husbandry, floriculture, horticulture, pisciculture, poultry, sericulture and viticulture as well as for use in the services sector." 132. The expression "capital goods" has also been defined under the FTP 2015-20 in the following terms: "9.08 "Capital Goods" means any plant, machinery, equipment or accessories required for manufacture or production, either directly or indirectly, of goods or for rendering services, including those required for replacement, modernisation, technological upgradation or expansion. It includes packaging machinery and equipment, refrigeration equipment, p....
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.... be one which constitutes an integral part of the resultant good. It may remain a permanent fixture or a component which aids the process of manufacture. The submission, therefore, that capital goods must necessarily form part of the "resultant goods" is clearly misconceived. It becomes pertinent to note that a component may often form an essential part of machinery or equipment. It may also constitute an element having an independent character or perform a distinctive function in aid of the ultimate product. While in the case of the former, it may get integrated in the resultant goods, it could also have the attribute of repetitive use and functionality. Consequently, it would not get absorbed in the resultant product and yet be an integral part of the manufacturing process. 137. If an article be a part of a process of manufacture and be concerned with the creation of goods and services, it would remain in the genre of capital goods answering to the description of tangible assets which are concerned with the creation of goods or the provision of services. The submission that Section 65 only contemplates those categories of goods which are capable of being consumed in the "manuf....
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....or to the 2016 amendments envisaged the maximum retention period to be five years, post amendment, that stipulation came to be substituted with the Legislature permitting the retention of those goods without any maximum time frame operating. The clear and unambiguous scheme which thus emerges from a reading of Sections 61 and 65 is of the importer being enabled to bring into the country capital goods which may be utilized in connection with manufacture or other operations in a licensed warehouse and the resultant goods alone being subjected to tax. 140. The Circular of the Board, the FAQs', the declarations of intent appearing on the "Invest India" portal unerringly point towards capital goods being capable of being warehoused for an indefinite period of time and the duty element thus getting deferred till the time those goods are ultimately cleared for entry into the domestic zone. We find ourselves unable to read Sections 61 and 65 as contemplating only such capital goods which themselves undergo a process of manufacture or those which may get consumed in the resultant product. Acceptance of that submission would amount to placing an extremely narrow construction on the words ....
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....alf of the respondents and which pertained to the usage of the expression "in relation to" as appearing in Section 65 of the Act. The learned ASG had vehemently contended that neither the MOOWR Regulations nor for that matter Sections 61 and 65 had comprehended a manufacturing activity being undertaken in a bonded warehouse with the employment of imported capital goods for time immemorial. It was submitted that Section 65 clearly contemplated the "manufacturing process" being undertaken upon the imported capital goods itself. The submission essentially proceeded on the basis that the imported capital goods must themselves undergo a process of manufacture and be worked upon while being present in the warehouse. According to Mr. Venkataraman, unless the aforesaid aspects of the MOOWR Scheme are appreciated, it would lead to unscrupulous importers abusing the benefits that were intended to be extended. 144. The learned ASG had relied upon the judgment of the Supreme Court in Doypack Systems to submit that the words "in relation to" must draw colour and meaning bearing in mind the context in which they are used in a statutory provision. It was his submission that Section 65 must be ....
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.... Coach Builders (P) Ltd., (2010) 9 SCC 524 (534-35), para 27]" 148. If that be the accepted position in law, we fail to find any justification to accept the contention of the learned ASG that the expression "in relation to" is intended to mean that the capital goods themselves must undergo a process of manufacture. This, since as long as the imported capital goods are concerned with or are relatable or referable to a process of manufacture or "other operations", the activity so undertaken would qualify the statutory conditions as placed by Section 65(1) of the Act and qualify the test of eligibility. The expression "in relation to" only appears to suggest a causal link existing between the imported capital goods and the manufacturing activity that may be undertaken in the warehouse. If the words "in relation to" are acknowledged to convey an intent to establish a connection or an association between two things or pertain to an article or goods, it would be apparent that Section 65 clearly intended to create an indelible link between the "manufacturing process or other operations" that may be undertaken with the imported goods. Those goods, as we have found hereinabove, could be ....
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....irst respondent themselves. Apart from the FAQs which have been extracted in the previous parts of this decision, we deem it apposite to additionally take note of the following FAQs. 152. Question 2 dealt with a query as to whether a factory solely engaged in manufacturing goods and intending to sell the said goods in the domestic market would be eligible to apply under the MOOWR Scheme. The response to the aforesaid query was as follows:- "Response: The eligibility of a factory for manufacture and other operations in a bonded warehouse does not depend upon whether the final goods will be sold in the domestic market or exported. There is no quantitative restriction on sale of finished goods in the domestic market. Any factory can avail a license under Section 58 of the Customs Act along with permission under Section 65 if they intend to import goods without upfront payment of Customs duty at point of import and deposit them in the warehouse, either as capital goods or as inputs for further processing." 153. As is manifest from a reading of the above, the respondents clearly represented that the eligibility of a factory to undertake manufacture and other operations in....
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....scored by the response to Question 10, which again emphasized that the duty deferment was "without any time limitation". 158. Of equal significance were the benefits of the MOOWR Regulations which were highlighted on the "Invest India" portal. We deem it appropriate to extract the following page from that portal, and which sought to broadly indicate the prominent benefits of the scheme:- 159. As is evident from the above, the respondents clearly held out that both raw materials and capital goods could be imported and that in both contingencies, the import duty would stand deferred. The duty element and the time when the same would get attracted was explained to be when finished goods are cleared for the domestic market, and in which case, import duty would stand attracted on the imported raw materials used in production of the finished goods. It was further clarified that import duty on capital goods would be payable only when they are cleared to the domestic market. This too is indicative of the underlying imperatives of input-output ratio declarations being made and those being principally concerned with imported raw materials. 160. The "Invest India" portal also spoke o....
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....ergy cannot possibly be doubted. Undoubtedly, solar energy constitutes a central piece of India's National Action Plan on Climate Change and the National Solar Mission. The adoption of those policy initiatives and the measures chosen to be adopted by India in discharge of its various treaty obligations were exhaustively noticed by the Supreme Court in its recent decision in M K Ranjitsinh & Ors vs. Union of India & Ors [2024 SCC OnLine SC 570]. We deem it appropriate to extract the following passages from that decision:- "31. The 2015 United Nations Environment Programme report also outlined five human rights obligations related to climate change, including both mitigation and adaptation efforts. In 2018, the UN Special Rapporteur on Human Rights and the Environment emphasized that human rights necessitate states to establish effective laws and policies to reduce greenhouse gas emissions, aligning with the framework principles on human rights and the environment. 32. The Inter-American Court of Human Rights issued an advisory opinion in 2017 affirming the right to a healthy environment as a fundamental human right. The IACTHR delineated state obligations regarding....
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....t to be free from the adverse effects of climate change, states are compelled to prioritize environmental protection and sustainable development, thereby addressing the root causes of climate change and safeguarding the well-being of present and future generations. It is imperative for states like India, to uphold their obligations under international law, including their responsibilities to mitigate greenhouse gas emissions, adapt to climate impacts, and protect the fundamental rights of all individuals to live in a healthy and sustainable environment. III. Importance of solar power as a source of renewable energy 36. There are many sources of air pollution which harm public health and infringe upon the right to a healthy environment. High levels of pollution caused by industries and vehicular pollution has left Indian cities amongst those with the poorest air quality in the world, posing significant health risks to citizens. Addressing these challenges requires prioritizing the transition to clean and sustainable energy sources, ensuring a healthier environment for all individuals in India, and safeguarding the well-being of future generations, with particular attention ....
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....ntensity of its GDP by 45 per cent from 2005 levels by 2030. India's goal to achieve 500 GW of non-fossil-based electricity generation capacity by 2030 aligns with its efforts to be Net Zero by 2070. In 2023-24, out of the total generation capacity of 9,943 MW added, 8,269 is from non-fossil fuel sources. According to the Renewable Energy Statistics 2023 released by the International Renewable Energy Agency (IRENA), India has the 4th largest installed capacity of renewable energy. 39. The International Solar Alliance was formed at the COP21 held in Paris in 2015, as a joint effort by India and France. It is an international platform with 94 member countries. It works with governments to improve energy access and security worldwide and promote solar power as a sustainable way to transition to a carbon-neutral future. ISA's mission is to unlock USD 1 trillion of investments in solar energy by 2030 while reducing the cost of the technology and its financing. It is partnering with multilateral development banks, development financial institutions, private and public sector organisations, civil society, and other international institutions to deploy cost-effective and t....
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....te cannot be guided or influenced by the subsequent experience of the executive or of discerned inequitable results. As we have found hereinabove, the statutory scheme underlying the MOOWR Regulations cannot be construed as seeking to exclude solar power generation in terms of permissions granted under Section 65. The contemporaneous literature also fails to lend credence to the submission of the respondents. In fact, it clearly tends to be indicative of a contrary position and the absence of an intent to exclude any particular activity of manufacture. It is this which leads us to doubt whether even the principles of purposive interpretation could be justifiably deployed. N. APPLICABILITY OF PURPOSIVE INTERPRETATION PRINCIPLES 166. The principle of purposive interpretation is one which Courts resort to in order to overcome anomalies and to avoid resultant absurdities. GP Singh, in his seminal work on Principles of Statutory Interpretation [Justice GP Singh, Principles of Statutory Interpretation, 13th edition, 2012] succinctly explained the rule of purposive construction as being liable to be resorted to in order to avoid absurdity, repugnancy, or inconsistency. However, and ....
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....hen precise and unambiguous, being acknowledged as embodying the true means of declaring legislative intent. The learned author elaborated upon the aforesaid precepts by stating that Courts are bound to give effect to clear legislative language, even if the consequences which follow were neither contemplated nor countenanced. It was further explained that a mere anomaly would not be sufficient for the test of literal meaning being jettisoned. This would be evident from the following passage:- "Effect of rule (1): unintended consequences of clear language The principal effect of the cardinal rule, subject to the restrictions and modifications explored below, is that a court is bound to give effect to clear legislative language even if the consequences in the instant case are such that the legislature did not contemplate and would not have countenanced. As Jervis C.J. said in Abley v Dale "If the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure, but we assume the functio....
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....ples seem to me not so much anomalies as surprising consequences of the construction which, as the judge acknowledged, was what the clear words of s.10(1) and (4) suggested. One is entitled to wonder what was the intention of Parliament in so providing. However, the duty of the court is to give effect to the intention of the legislature as ascertained from the language used and I do not think it permissible to arrive at a construction other than what the clear statutory words dictate either by leaning in favour of the landlord or by mixing interests when it is plain that the interest relied on had to be continuous singe before the conversion. It was not open to the judge to write into s. 10(4) the words "at any time" (particularly when the words are found in s. 0(1)), nor to rewrite s.10(1)(b) in the way he suggests is its meaning when read with s.10(1)(a).0020 To revert to the intention of Parliament, it can only be assumed from the statutory language that Parliament intended a simple test: at the relevant date either own the freehold from before the conversion or be a beneficiary under the same trust since before the conversion. It would surely have been obvious....
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....mon sense in choosing in which of the various ways, each of which is possible as a matter of grammar and syntax, to read a particular legislative expression, does not, however, amount to permission for the courts to modify express legislative language for the same purpose. As Willes J. said in Abel v Lee "No doubt the general rule is that the language of an Act is to be read according to its ordinary grammatical construction unless so reading it would entail some absurdity, repugnancy or injustice. ... But I utterly repudiate the notion that it is competent to a judge to modify the language of an Act in order to bring it in accordance with his views of what is right or reasonable." 169. Dealing specifically with the issues of evasion of tax and the construction liable to be placed on statutes governing the imposition of taxes and duties, the author makes the following observations:- "As to whether an action can be within the letter of the law but not within the spirit of the law- It is clear from the discussion above that the courts will give effect only to the letter of the law, that is to say what the legislature has enacted rather than what it might....
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....nfirmation where it was in the best interests of the child post facto. For a case where the court agreed "that the court should take care not to circumvent the policy of the Act". See Pegram Shopfitters Ltd v Tally Weijl." 170. Cross, in his celebrated work on Statutory Interpretation [Cross, Statutory Interpretation, John Bell and George Engle, 3rd edition, 1995], while acknowledging the primary precept being that of words of a statute being understood in their plain grammatical and ordinary sense, explained the circumstances in which the principle of a secondary meaning may be resorted to. We deem it appropriate to extract the following illuminating passages as they appear in that work:- "CHOICE BETWEEN PRIMARY AND SECONDARY MEANING The second of our basic rules set out on page 49 must now be illustrated: 'If the judge considers that the application of the words in their grammatical and ordinary sense would produce a result which is contrary to the purpose of the statute, he may apply them in any secondary meaning which they are capable of bearing.' To repeat a quotation from one of Lord Reid's speeches: 'In determining the meaning of an....
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....ply because it produces a result which they believe is contrary to the purpose of the Act. No judge can decline to apply a statutory provision because it seems to him to lead to absurd results nor can he, for this or any other reason, give words a meaning they will not bear. We have already seen this point, in connection with Duport Steels Ltd v Sirs. It will be recalled that the Court of Appeal considered that the words any act done by a person in contemplation or furtherance of a trade dispute' had to be interpreted as qualified by the requirement that the acts should not be too remote from the dispute, because of the undesirable consequences which would flow from admitting as lawful all secondary action. Although expressing sympathy with this concern, the House of Lords considered that it could not but give effect to the plain words of the statute which covered any act done in contemplation or furtherance of a trade dispute. Lord Scarman said: 'In this field Parliament makes, and un-makes, the law; the judge's duty is to interpret and to apply the law, not to change it to meet the judge's idea of what justice requires. Interpretation does, of course, imply i....
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....pplication of particular statutory language to particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision." "So often, particularly in Tax Statutes, the spirit and intention of the Act... is subject to such uncertainty ... that it may provide a misleading rather than a reliable guide, and in any case affords a less certain guide than the construction of the words without a resort to conceptions of spirit and intention." The language used is not to be either stretched, in favour of the Crown or narrowed in favour of the taxpayer. So, where the court has to consider a provision expressly designed to prevent tax evasion, which uses unnecessarily wide language to achieve its purpose, that language will be given effect to even though the section is thereby made to apply to cases which it was probably never intended to catch. And where a statute referred to the surveyor of taxes "discovering" an undercharge, the House of Lords could "see no reason for saying that a discovery of undercharge can only arise where a new fact has been discovered. The words are apt to include any case in which for a....
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.... 1-4-1999 (sic 11-1-1999) that it filed its third execution petition. We fail to understand why the Bank waited from 1990 to 1994 and again from 1994 to 1999 in filing its execution petitions. Hence, it is the Bank which is responsible for not getting the decree executed well in time. xxxx xxxx xxxx 39. In Hiralal Ratanlal v. STO [(1973) 1 SCC 216 : 1973 SCC (Tax) 307 : AIR 1973 SC 1034] this Court observed: (AIR p. 1035) "In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All that the court has to see at the very outset is what does that provision say. If the provision is unambiguous and if from that provision the legislative intent is clear, the court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intention is not clear." (SCC p. 224, para 22) 40. It may be mentioned in this connection that the first and the foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the m....
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....in the garb of interpretation, which is not permissible vide J.P. Bansal v. State of Rajasthan [(2003) 5 SCC 134 : 2003 SCC (L&S) 605 : AIR 2003 SC 1405] , State of Jharkhand v. Govind Singh [(2005) 10 SCC 437 : 2005 SCC (Cri) 1570 : JT (2004) 10 SC 349] . It is for the legislature to amend the law and not the court vide State of Jharkhand v. Govind Singh [(2005) 10 SCC 437 : 2005 SCC (Cri) 1570 : JT (2004) 10 SC 349] . In Jinia Keotin v. Kumar Sitaram Manjhi [(2003) 1 SCC 730] this Court observed (SCC p. 733, para 5) that the court cannot legislate under the garb of interpretation. Hence there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the courts. In fact, judicial legislation is an oxymoron." 175. As was noticed by us hereinabove, the language in which Sections 61 and 65 are couched does not give rise to any ambiguities. This is also not a case where a plain grammatical construction leads to an apparent contradiction or a position of irreconcilability between two provisions present in the same enactment. Our conclusions are based on a harmonious construction of Sections 61 and 65 along with the contempor....
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....sposed of finally in terms of that order. 179. In W.P. (C) 10838/2022, the respondents have in terms of an order dated 19 July 2022 proceeded to cancel the license held by the petitioner. Quite apart from the said order being devoid of reasons, it would not sustain in light of the conclusions recorded hereinabove. P. FINAL DETERMINATION 180. Accordingly, and for all the aforesaid reasons, we allow the present writ petitions. The impugned Instruction of the Board dated 09 July 2022 insofar as it mandates review of existing licences and taking of "follow-up" action is hereby quashed. For reasons aforenoted, we also quash the SCNs' dated 13 July 2022 [W.P.(C) 10537/2022, W.P.(C) 10835/2022, W.P.(C) 10836/2022, W.P.(C) 10840/2022, W.P.(C) 10844/2022, W.P.(C) 10853/2022, W.P.(C) 10837/2022] and 12 December 2022 [W.P.(C) 1507/2023]. As noted above, we allow W.P.(C) 10838/2022 and quash the impugned order dated 19 July 2022 for reasons aforenoted. W.P.(C) 12386/2022 shall stand disposed of in accordance with the directions laid down in para 178 of this judgment. We leave it open to the respondents to proceed further in accordance with law. ============= Document 1 Advantages....