TaxTMI 
TaxTMI 
TaxTMI 
2007 (6) TMI 222
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....s. One such clarification is relating to the subject "classification of used steel rails for re-rolling under CTH 72.04 or 73.02 and whether freely importable" and the clarification reads as follows : "The Board considered the alternative Headings of 72.04 and 73.02 for the item. The main point for discussion related to the policy restrictions on the import of used rails. Chapter 73 of the CTA, 1975 specifically covers articles such as rails. In the case under reference, even though the items in question were in the form of rails, these bore markings of use and therefore these could not be used again as rails. Hence, suitable classification would be as scrap of CTH 72.04 and not as articles under Heading 73.02. It has accordingly been decided by the Board that used steel rails for re-rolling were appropriately classifiable under CTC 72.04 and these were freely importable." 5.It is the case of the appellant that the members of the appellant association have been importing such "used rails" viz., "re-rollable scrap" by classifying the same under chapter heading 72.04 49 00 of the First Schedule to the Customs Tariff Act, 1975 which attracts 5% of the basic Customs Duty,....
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....llant, as per the impugned Circular "used rails" shall be classifiable under Chapter heading 73.02 of the Customs Tariff Act, 1975 which attracts 15% of the Basic Customs Duty, 16% of the Additional Customs Duty (CVD) and applicable Education Cess thereon. Further, the Chapter heading 73.02 also requires an import licence from the Director General of Foreign Trade as it is a restricted item of import and as such, the consignment of "used rails" being imported by the petitioners would be assessed to higher duty of customs. The appellant-association and its members filed the present writ petitions questioning the validity of the Circular on various grounds. The learned single Judge by the impugned order took the view that the issue raised by the petitioners has to be adjudicated before the authorities concerned and this Court cannot be converted into an adjudicatory forum by-passing the provisions of the Act. 7.Mr. Arvind P. Datar learned Senior Counsel appearing for the appellant strenuously contended that the goods imported by the members of the appellant-association such as broken rails, pieces of steel are sought to be classified as finished rails but the imported goods are unfi....
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....a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments; they would essentially be 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 i....
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.... any extraneous guidance by the executive or administrative wing of the State. If the exercise of discretion conferred on a quasi-judicial tribunal is controlled by any such direction, that forges fetters son the exercise of quasi-judicial authority and the presence of such fetters would make the exercise of such authority completely inconsistent with the well accepted notion of judicial process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters the Tribunals constituted by it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the Tribunals in dealing with the said matters. The scope of the jurisdiction of the Tribunals constituted by statute can well be regulated by the statute and principles for guidance of the said Tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders. This position is so well established that we ....