Gujarat High Court
Hindustan Zinc Ltd vs Union Of India & on 12 June, 2013
Author: M.R. Shah
Bench: M.R. Shah
HINDUSTAN ZINC LTD.....Petitioner(s)V/SUNION OF INDIA C/SCA/7667/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 7667 of 2013 ================================================================ HINDUSTAN ZINC LTD.....Petitioner(s) Versus UNION OF INDIA & 3....Respondent(s) ================================================================ Appearance: MR HARDIK P MODH with MR NARESH THACKER and MR AMIT LADDHA, ADVOCATES for the Petitioner(s) No. 1 MR HRIDAY BUCH, ADVOCATE for the Respondent(s) No. 3 MR PS CHAMPANERI, ADVOCATE for the Respondent(s) No. 1 MR RJ OZA, ADVOCATE for the Respondent(s) No. 2 NOTICE SERVED BY DS for the Respondent(s) No. 4 ================================================================ CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MS JUSTICE SONIA GOKANI Date : 12/06/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. By way of this petition under Article 226 of the Constitution of India petitioner has prayed for the following reliefs:-
(a) that this Hon ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus, or any other appropriate writ, or direction, directing the Respondents not to recover any amount from the Petitioners and not to adopt any measure for recovery of any sum, pending finalization of the provisional assessment of bills of entry after adhering the due process in law including the right of the Petitioners to make appeal and other relief as may be available to the Petitioners against such assessment order.
(b) that this Hon ble Court be pleased to issue a Writ of Mandamus, or a Writ in the nature of Mandamus, or any other appropriate writ, or direction, directing the Respondents to grant out of charge permission for the clearance of future consignments of Coal without any unjustified restrictions on account of alleged pending dues in respect of past consignments.
that this Hon ble Court be pleased to declare that Sr.No.123 of Notification No.21/2002-Cus dated 1st March, 2002 as amended by Notification No.12/2012-Cus dated 17th March, 2012 unconstitutional and ultra vires Article 14 of the Constitution of India to the extent it seeks to exclude Steam Coal of 5,833 Kcal/Kg or more of GCV although used for generation of steam required for the production of electricity;
that this Hon ble Court be pleased to issue a Writ of Mandamus, or a Writ in the nature of Mandamus, or any other appropriate writ, or direction, directing the Respondents to extend the benefit of full exemption from Basic Customs duty to Steam Coal with 5,833 Kcal/Kg or above GCV when imported into India for use in generation of steam in thermal power plant between the period 17th March, 2012, till date, and hereafter until the continuation of the said Notification at Annexure B2 hereto;
(e) that this Hon ble Court be pleased to issue a Writ of Prohibition or a Writ in the nature of prohibition, prohibiting the Respondents by themselves, their servants, agents or subordinates from denying the benefit of full exemption from Basic Customs duty;
(f) In the alternative to the above prayers, this Hon ble Court be pleased to direct their Respondents to issue a clarification by inserting explanation under Serial No.123 of the said Notification the effect that the expression Steam Coal covers all types and varieties of Coal used for generation of steam required for the production of electricity irrespective of the said Sub-Heading under which the same follows for explanation;
2. At the outset, it is required to be noted that Mr. Naresh Thacker, learned advocate appearing with Mr. Hardik Modh, learned advocate appearing for the petitioner has categorically made a statement that the petitioner does not press all the reliefs, which are stated in paragraph No.26 except challenging the action of the respondents in not processing their future bills of entries on non-payment of past dues, which are the subject matter of investigation/inquiry before the appropriate authority. He has also stated that with respect to past bills of entries, which are processed on payment of provisional duty, the proceedings may be directed to be concluded at the earliest.
3. In response to the notice issued by this Court , Mr. R.J. Oza, learned counsel has appeared with learned advocate Mr. Hriday Buch, learned Central Government Standing Counsel for the respondents. Affidavit-in-reply is filed by the Department. Mr. Oza appearing on behalf of the respondents has made a statement and so stated in the affidavit-in-reply that future bills of entries, which may be submitted by the petitioner, shall not be withheld solely on the ground of non-payment of the past dues, which are the subject matter of investigation and/or adjudication before the appropriate authority and the future bills of entries, shall be processed in accordance with law and on merits. He has also stated at Bar that so far as past bills of entries are concerned, which are pending before the appropriate authority, inquiry/investigation has been concluded and show cause notice shall be issued on or before 15.7.2013.
4. Recording the aforesaid statement of the learned counsel and even the affidavit-in-reply, it is directed that the respondents authorities shall not withhold the future bills of entries that may be submitted by the petitioner solely on the ground of non-payment of past dues of the bills of entries, which were cleared on payment of provisional duty pending adjudication and the same shall be processed in accordance with law and on merits. So far as past bills of entries, which are pending before the appropriate authority for adjudication is concerned, as stated by Mr. Oza, learned counsel appearing on behalf of the respondents, a show cause notice be issued against the petitioner on or before 15.7.2013 and subject to cooperation by the petitioner, the same shall be adjudicated and finally disposed of in accordance with law and on merits as early as possible.
5. With this, present Special Civil Application is disposed of.
(M.R.SHAH, J.) (MS SONIA GOKANI, J.) SUDHIR Page 5 of 5