indo-finercil Private Limited Vs. Government of India Represented by Secretary, Ministry of Fertilizers and Chemicals and anr. - Court Judgment

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customs - grant of exemption - sections 3 and 25 of customs act, 1962 - government notification issued granting exemption on drug components of anti t.b. medicine under section 25 - subsequently by another notification exemption rescinded - petitioner manufacturer of medicine contended that they are discriminated by latter notification of government - petitioner prayed that they are entitled to total exemption on drug components to make medicine in view of public interest - government under section 25 empowered to grant such exemption in public interest either absolutely or subject to such conditions to be fulfilled before or after clearance - no material placed to support contention of discrimination - held, government exempted in public interest and rescinded exemption in public interest and in circumstances no case made out for interference. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - (1) if the central government is satisfied that it is necessary in the public interest so to do, it may, by notification in the official gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. (2) if the central government is satisfied that it is necessary in the public interest so to do, it may, be special order in each case, exempt from the payment of duty, under circumstances of an exceptional nature to be stated in such order, any goods on which duty is leviable, (3) an exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any goods in the manner provided in this sub-section shall have effect subject to the contention that the duty of customs chargeable on such goods shall in no case exceed the statutory duty. on the other hand, in the case of a tax on newsprint, it may be sufficient to show a distinct and noticeable burden someness, clearly and directly attributable to the tax. ' to a taxing statute like 'customs act, 1962',referred as ordinary act, what was said in the case is not relevant.raghuvir, j.1. the company by name 'indo finercil private limited' is the writ petitioner. the company is also register district where it manufactures 'pyrazinamide' a drug used for 'chemotherapy for tuberculosis (tb)'. tb in india is at large for centuries. in the past three or four decades it is under control, yet four to five millions fresh cases of acute pulmonary tb are found every year affected by the killer disease. the bacillary remain contagious in the lungs of the affected for two years before death finally takes over the patient. there are five are : (1) isonized (inh), (2) rifampicin, (3) pyrazinamide, (4) streptomycin and (5) ethambutal. the writ petitioner company uses the first three components in 'pyrazinamide'. relevant to these components inter alia two notifications are referred by the company. notification no. 18 of 1984 published on february 14, 9184. the other is 233 of 1984 published on september 12, 1984. the two were notified under section 25 of the customs act, 1962. the notification no. 18 recites; '... central government.... in the public interest so to do, hereby exempts pyrazine mono carbolic acid (phca), falling under heading no. 29.01/45 of the first schedule to the customs tariff act, 1975 (51 of 1975) when imported into india by actual users for the manufacture of anti- tb drug pyrazinamide, from (i) so much of that portion of duty of customs leviable thereon which is specified in the first schedule as is in excess of the amount calculated at the rate of 60 per cent ad- valoram, and (ii) the whole of the additional duty leviable under section 3 of the second mentioned act.' the notification 18 was rescinded by no. 233 of 1984 published on september, 1984 which recites; '.... the central government....... in the public interest so to do, hereby rescinded the notification of the government of india in the ministry of finance, department of revenue no. 18/84 customs, dated the 14th february, 1984.' 2. the company averred as a result of the latter notification they are discriminated. this no doubt is stated, but no material is placed to support the contention from the stand point of others. therefore, the plea of discrimination simplicitor is held to have not been proved 3. the second issue raised is with reference to section 25 of the customs act, which reads; '25 : power to grant exemption from duty: (1) if the central government is satisfied that it is necessary in the public interest so to do, it may, by notification in the official gazette, exempt generally either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon. (2) if the central government is satisfied that it is necessary in the public interest so to do, it may, be special order in each case, exempt from the payment of duty, under circumstances of an exceptional nature to be stated in such order, any goods on which duty is leviable, (3) an exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon (the duty of customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any goods in the manner provided in this sub-section shall have effect subject to the contention that the duty of customs chargeable on such goods shall in no case exceed the statutory duty. explanation : 'former method' in relation to a rate of duty of customs, means the basis, namely, valuation, weight, number, length, area, volume or other measure with reference to which the duty is leviable. 4. the words 'public interest' in the section 25 relied on by the company and it is urged public interest is not served by the second notification. the case in i.e. newspapers (bombay) private ltd. v. union of india (1) : [1986]159itr856(sc) is relied. it is urged in view of the number of persons afflicted by the killer disease of tb, the duty payable on the drug components of the company under section 25 of the act be exempted. the reason by it should be exempted again it is stated because of 'public interest' found in section 25. the prayer in the writ petition is : 'to declare the import of pyrazine mono- carbolic acid, the intermediate necessary for the manufacture of pyrazinamide is in public interest and so is entitled to total exemption from customs duty and direct and respondents to notify.....'. 5. the contention of the company is over-stated, for what is said in para 67 of the supreme court was more with reference to free press: 'in view of the intimate connection of newsprint with the freedom of the press, the tests for determining the vires of a statute taxing newsprint have, therefore, to be different from the tests usually adopted for testing the vires of other taxing statutes. in the case of ordinary taxing statutes, the laws may be questioned only if they are either openly confiscatory or a colourable device to confiscate. on the other hand, in the case of a tax on newsprint, it may be sufficient to show a distinct and noticeable burden someness, clearly and directly attributable to the tax.' to a taxing statute like 'customs act, 1962', referred as ordinary act, what was said in the case is not relevant. judged from that perspective, no case is made out for the interference of this court. the writ petition fails and is dismissed. no costs.