Vishnu Vijay Packagers (P) Ltd. Vs. Union of India (Uoi) - Court Judgment

Excerpt:
customs act, 1962 - section 68 - exemption notification no. 125/86 dated 12.2.1986 - customs duty - import of 'dival multi- layer coater machine' - order for clearance of goods from warehouse for home consumption passed on 29.2.1988 - rate of duty applicable as on the date of clearance - petitioner entitled to benefit of exemption notification.;on fulfillment of the conditions set out under section 68 of the customs act, the order was passed on 29.2.1988 allowing clearance of the goods from warehouse for home consumption. therefore, the rate of duty applicable to the goods will be the rate prevailing on the date of clearance ordered on 29.2.1988. accordingly, the petitioner is entitled to avail the benefit of exemption notification no. 125/86. the revenue cannot take undue advantage of the delay on its part in passing the order of clearance, especially when the assessee had fulfilled all the conditions long ago. thus, the revenue is not justified in holding that the petitioner is not entitled to the benefit of exemption notification no. 125/86. in this view of the matter, the demand raised by the revenue is held to be null and void and the same is set aside. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - collector of customs is on record at exhibit-c (page 27 of this petition). the respondents for the reasons best known to them, did not assess the bill of entry as the officers of the respondents were entertaining certain doubts about the said machine.vijay c. daga, j.1. the petition is directed against the action of the respondents in claiming, demanding and/or trying to recover import duty on the 'dival multi-layer coater machine', imported by the petitioners without affording benefit of the exemption notification no. 125/86. the facts 2. the facts in narrow compass are that petitioners had imported a 'dival multi-layer coater machine' which was fully covered by entry no. 32 of exemption notification no. 125/86, dated 17-2-1986. on 13-4-1987 the petitioner had filed a bill of entry for warehousing of the said machines, claiming benefit of exemption notification no. 545 of 1986. on 15th december, 1987 the petitioners filed an ex-bond bill of entry for clearance of the said machine from warehouse for home consumption and once again claimed the benefit of the said exemption notification no. 125/86. 3. on 22nd december, 1987, the petitioners once again requested the respondents to assess the said bill of entry stating that the draft towards payment of import duty amount was lying ready with them. this letter dated 22nd december, 1987 addressed to the asstt. collector of customs is on record at exhibit-c (page 27 of this petition). the respondents for the reasons best known to them, did not assess the bill of entry as the officers of the respondents were entertaining certain doubts about the said machine. 4. on 7-1-1988 the petitioners in order to remove any doubt which the respondents were entertaining obtained a letter from the supplier confirming that the said machine was 'dival multi-layer coater machine', which is covered under notification no. 125/86. the petitioners by their covering letter dated 11-1-1988 forwarded a copy of the supplier's letter and requested the respondents to assess duty extending benefit of the exemption notification no. 125/86. 5. the machine was re-examined by the respondents. it was cleared by them on 29-2-1988. an order of assessment was passed on the bill of entry accepting that the said machine was 'dival multi-layer coater machine' and was held entitled for exemption under exemption notification no. 125/86. however, petitioners could not take delivery of the machine up to 1-3-1988 for which petitioners are throwing blame on revenue. 6. it further appears that subsequent to 29-2-1988 i.e. on 1-3-1988 the notification no. 125/86 came to be amended and the exemption which was available to the said machine came to be withdrawn consequently, the petitioners were asked to pay the entire duty, ignoring the exemption notification no. 125/86, since the actual delivery of machine was not taken by the petitioners till 1-3-1988 and it was lying warehoused. 7. being aggrieved by the above action of the respondents, the petitioners invoked the writ jurisdiction of this court under article 226 of the constitution of india. this court while granting rule passed interim order on 4-4-1988 in terms of prayer clause (c) and allowed the machine to be cleared, subject to furnishing bank guarantee for the amount of differential duty within the stipulated period allowed in the order. accordingly, bank guarantee was furnished by the petitioners. the machine was allowed to be released. the submission 8. the learned counsel appearing for the petitioners contended that in view of section 68 of the customs act, the petitioners as importers of warehouse goods had presented bill of entry for home consumption in respect of the subject machine in the prescribed form and the import duty leviable on such machine was offered but the assessing officer did not accept the same. the petitioner, therefore, submits that the requirements as contemplated under section 68 were complied with in its true letter and spirit whatever was within the command of the petitioners was done by them. they had complied with the provisions of section 68 of the customs act. the learned counsel for the petitioners relied upon the judgment of the apex court in the case of priyanka overseas pvt. ltd v. union of india : 1991(51)elt185(sc) and contended that under section 15, the rate of duty and tariff valuation if any, applicable to any imported goods is to be the rate and valuation in force in the case of the goods cleared from a warehouse under section 68 prevailing on the date on which the goods are actually removed from the warehouse. 9. the concept of deeming provision cannot be introduced while determining the question of actual removal of the goods from the warehouse. admittedly the petitioners had discharged its part of the legal duty by presenting bills of entry and complying with the provisions of section 68(a) and (b) on 15-12-1987. but the customs officer refused to release the goods/machine on an erroneous assumption that the machine in question was not 'dival multi layer coater machine', as such petitioners cannot be denied the benefit of exemption notification no. 125/86. 10. the learned counsel for revenue is not in a position to dispute that the payment of duty, was not offered by the petitioners prior to 29-2-1988. it appears that is the revenue who did not accept payment of duty though it was offered and tendered. findings 11. in the instant case, on fulfilment of the conditions set out under section 68 of the customs act, the order was passed on 29-2-1988 allowing clearance of the goods from warehouse for home consumption. therefore, in the light of the decision of the apex court in the case of priyanka overseas pvt. ltd. (supra), the rate of duty applicable to the goods will be rate prevailing on the date of clearance ordered on 29-2-1988. accordingly, the petitioner is entitled to avail the benefit of exemption notification no. 125/86. the revenue cannot take undue advantage of the delay on its part in passing the order of clearance, especially when the assessee had fulfilled all the conditions long ago. thus, the revenue is not justified in holding that the petitioner is not entitled to the benefit of exemption notification no. 125/86. in this view of the matter, the demand raised by the revenue is held to be null and void and same is set aside. 12. since the goods have been allowed to be cleared under interim order of this court on payment of admitted amount of duty, the petitioner are entitled to receive bank guarantee with necessary endorsement for cancellation thereof. the petition is allowed. rule is accordingly made absolute in terms of this order, with no order as to costs.