Karnataka High Court
Union Of India Ministry Of Finance vs Jindal Vijayanagar Steel Ltd on 30 July, 2010
Bench: N.Kumar, B.V.Nagarathna
VVVVVV 1 VVVVVV
IN THE HIGH COURT OF KAIU\IATAKA AT BANGALORE
DATED THIS THE 30""! DAY OF JULY, 2010
PRESENT
THE HONBLE MR. JUSTICE N. KUMAR A" "'
AND
THE HONBLE MRS. JUSTICE I3,V.3§IA.QARATHNA" 'E
W.A. NO.5/2€i0-4(T-TAR)' V
BETWEEN: A
1. UNION OFINDIA, . .
MINISTRY OF FINANCE." I
[DEPTIOF REVE:1\:UI3:),V_ I
NORTH BLOC'K,__
NEW DELhI'I--1'g.I300:--.. % _
2. THE 131?:PI;*W.,SIg:cIRETAI*--2&'; -
(TRU3, I)EI>AR'I'MENIi REVENUE,
MINISERIIIOF"I~*IN_AIII.c'E_AND
COMPANY AFFAIRS, G~--f)VT.OF INDIA.
NORTH BLOCK,' '
I_NEW..wDE.LHI-- 1" £'Q._,(30'1.
'THE..COM.M'ISSIONER OF CUSTOMS.
V..IcI§II?..I\I;\IAI,HAVING ITS OFFICE AT
'4 CHENNAI. CUSTOMS HOUSE.
C,_HE_1\I NA};
A TIIEVCOMMISSIONER OF CUSTOMS,
.. ' 'GOA, CUSTOMS HOUSE,
= PANAJI, GOA.
APPELLANTS
" 4' "(I332 Sri: Y IIARIPRASAD AND SR1 S KALYAN BASAVARAJ
A A ~ I XASOI, AD'./S.)
1. JINDAL VIJAYANAGAR STEEL LTD..
A PUBLIC LTD CO.. INCORPORATED UNDER..~~fj
THE PROVISIONS OF THE COMPANIES ACT'
1956. HAVING ITS REGD OFFICE AT PO .
TORANGALLL582123, DISTRIC.T~BF_.LLA_RY,V '' f: »
KARNATAKA, REPBY ITS GENI;RAI,'1\'AAN_A<'3ER-
MR. P KRISHNEGOWDA.
go
MR. P KRISHNECOWDA,' ._
AGED 52 YEARS, =
S/O LATE PAPE C-QWDA, "
WORKING AS GEN ERAL ._
JINDAL VIJAYNACAR STEEL; LTD, ,j AA
HAVING ITS OFFICEA-OTV1§ZV'1'§ _ . "
THE ESTATE, 3RD EEGSR. - _ '
DICKENS-O'I"J~_RfOAD_, __ ' ' A :
BANCAI..0.RE}5,es0~.0'4~2.:._ '
. ' RESPONDENTS
{By SrI::"'U'DAYA;, HoI;,I;.A 'FDR SMT SE ANURADHA ADV.
FORE} = . _'
_TI~IIS"'=wRI,Tj IS FILED U/S 4 OF THE
KARj'3\IA'FAKA HIGH COURT ACT PRAYING TO SET ASIDE
.. 2.;-QRDER PASSED IN THE WRIT PETITION
» 1§I0_274I1«-27312/_2o03 DATED 21 /10/2003.
Coming on for Preliminary Hearing this day,
N.KumLIr delivered the following:
JUDGMENT
This appeal 'IS by the Union of India, Challenging the order passed by the learned Single Judge by extending the benefit of the notification dated 28.4.2001 to the respondents herein aiso though by yet another notification the said benefit was conferred on them by notification dated 1.3.2001.
2. For the purpose of Convenience, the....pa'rtie's:' are referred to as they are referred to in the pe't.iti'on'.-.: 4'
3. The first petitioner is allllcdrtipanylll the business of manufacture The second petitioner is the of the company. Vatnotification dated 26.4.2001 mi" of Section 25 of the Customs 'Aét; the notification dated 1.3.20o11"'by'" in the matter of Customs Duty payahletlonypnf1eta.lllu.z;gical coke when imported by "V'~.:nan.tifacturers of"pig....«iron or steel. "As the petitioner l * ' -._ adopted the Corex~ Basic oxygen furnalc-e~ contijnuous casting process -- hot strip mills route, Cthe benefitohflthe said notification was not extended to them. A ..:Howev.er, the respondents issued a notification dated whereby the basic customs duty payable to the " petitioner was restricted to 5% advalorem instead of existing 15% advalorem thus bringing uniformity in the basic customs duty to all manufacturers of pig iron or steel including the petitioner. The petitioner imported 11 consignments between 26.4.2001 and 1.3.2002 of Before the issue of the second notification, the petitioiiejr 0' chaiienged the first notification on the arbitrary and vioiative of Article 14.1, J was disposed of with a direction, to the lpehtitionery .approa~clri« 00 the authorities seeking exemptionlliand withfaddireetioln the authorities to consider Beforelfthe said representation was considered,the:second»AA.'rioti_iication dated 1.3.2002 was of exemption on the petitioner ities took note of the second leXt'end the said benefit from the datellof the to the petitioners. Aggrieved by the same}~.th'c ,pe_tit1olnerl preferred a writ petition before Learnedv~SJ'..ngle Judge after carefully considering the 0' "entire" ymxaterial on record and rivai contentions, notifi'cations.. the decisions of the Apex Court, held that lathe action of the authorities in not extending the benefit of Alfythef"anotification from 1.3.2001 of the petitioner is ' discriminatory and therefore, allowed the writ petition and mlciluashed the order passed by the authorities and directed them to extend the benefit from 1.3.2001. Aggrieved by the said order, the Union of India is in appeal. to
-.1 who have adopted blast furnace technology. it was not extended to corex-basic oxygen furnace technologr. they realised the mistake and the benefit was them also. Therefore. there is no distinguish._ab_'l--eV between the manufacturers of steel ~;.ti1"e's_e_ technologies and both of them are'~--Aent.itled_..t.o.the said it benefit. Because there was understai-iditviiglllbefore issuance of the said notificat:ion_,'VA themf11.ista1tevVin"Vthe said notification had crept in.:_ by the Joint Secretary', the reason for its unintendedil 1.2 which is stated as underzi"
that the non--incluston of "core:<':techriolorgywcrl the purpose of exemption [teas not"'because of any conscious decision but V because thevfldejaartrrient was informed by the 1 Steel that the problem was with pig blast furnace units. At the time of issue tlianotification on 27.4.2001, the department " not aware that the "corex" technology is also it used for manufacturing steel from the basic it stages. After the matter was brought to the notice of the department and the Ministry of Steel had recommended the exemption, the Government had extended the concessional rate. However, question is whether the benefit can be given retrospectively. The pettttonerhas referred to Section 25(3) of the Customs Act, 1962 under which, according to them. the Government has the power to extend the benefit of exemption event' "
2' prior to the issue of the notification. .if._ H submitted that Section 25(3) of the .
1962, does not confer any suv{pou»er:s on.lthe_ Government. It only provides th.at7an'lexemvpt.ion¢. may be granted by providing for'-the _lev5l"Q3".,ayy duty on goods at a rate expressed or method different from thes"tsh_e methodrin which the statutory" and any such exemption gran.te:dfshall subject to the :=._th(;1t...7the customs chargeabtegon'-s'iVich in_ no case exceed 25(3) means in simple if the statutory rate is specific or exemption may provide for hha.dveloremlt'evy or a specific levy, V.y.§re'spectively,V_V_yVas the case may be. The only conditiizvn is that the duty levied should not * Vex'c.eedV"the ---statutory levy. This does not give any the Government to extend exemption ret_rospAe'cAtively. We may thus bring the above position also to the notice of the petitioner along it «._with our views as to how the processes of blast "furnace technology and corex technology cannot be considered as same even though there are certain similarities.
444 9 4_4
7. It is by mistake in the said first notification it did not include the benefit to the petitioner. Once they realised ___the mistake, they issued the second notification. 'I'herefor'e_.y'vV question of giving retrospective effect to notification really does not arise, ifmthe at_2'thorit.ies"'iwere merely rectifying the mistake. Once the ::,p. the petitioners should get the"exemption'from7th.g§of first notification. This is precisevly"-yyl'1.at the single judge held, and therefore._._.{I*1eA isddstrictly in accordance with law uiéxdd find any justification to_vi3ntei3fere yfiithi the vlfell--'considered order of the learned fsifigle the appeal is dismissed.
8. Learned respondent submitted that as the duty has already: paid. learned single judge perm.i«t§tedi'~the petitioners to file an application for refund AV__wit;hin foniiyaeelis. On account of this appeal and the stay odrde'lr.__«thedldfpetidtioners have not availed the benefit yet. V . 'i'herefore§:he 'requests four weeks' time to file the application H refund" from the date of receipt of a copy of this order. %ff1€ petitioner is permitted to file the requisite application for refund within four weeks from the dateuof %