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Judgment
In this petition under Article 226 of the Constitution of India, the Petitioner has challenged the constitutional validity of Notification No. 9672009-Customs , dated 11 September 2009 (Exhibit-D) insofar as the Notification exempts the imports under Advance Authorization from the whole of the additional duty, safeguard duty and anti-dumping duty under Sections 3, 8B and 9A of the Customs Tariff Act, 1975, however, the safeguard duty livable under Section 8C of the Customs Tariff Act, 1975 is not exempted by the above Notification No. 96-2009-Customs, dated 11 September 2009. The leaned counsel for the Respondents states that all that has been done by the Revenue is to issue a show cause notice to the Petitioner dated 3 October 2013. Therefore, the petition is premature.
The learned counsel for the Petitioner submits that the Government of India in the Ministry of Finance (Department of Revenue), Tax Research Unit has issued an Office Memorandum, dated 31 May 2013 setting out anomaly insofar as not granting, of exemption from safeguard duty under Advance Authorization under Section 8C of the Customs Tariff Act, 1975 is concerned. The relevant portion of Office Memorandum dated 31 May 2013 reads as follows :
"Para 4.1.4 of Foreign Trade Policy provides for exemption from Safeguard duty for clearances against Advance Authorization. The domestic law to impose Safeguards duty has been enacted under two sections - Section 8B and Section 8C of the Customs Tariff Act, 1975.
Notification No. 93/2004-Customs, dated 10th September 2004, which was preceding notification to the current notification dealing with clearances under Advance Authorization exempted safeguard duty levied under Section 8 of CTA, 1975. This appears to be an anomaly as Section 8 of CTA, 1975 deals with the emergency power of Central Government to increase or levy export duty and is independent of Section 8B and Section 8C of CTA, 1975. Subsequently, the present notification exempts safeguard duty levied under Section 8B. However, when read with FTP, it appears that the intention'' is to exempt safeguard duty irrespective of whether it is levied under Section 8B or Section 8C."
It is submitted that in view of the above clarification issued by the Ministry of Finance, the adjudicating authority ought to apply the Notification No. 96/2009-Customs, dated 11 September 2009 in light of the Office Memorandum dated 31 May 2013.
Rule. Returnable on 7 July 2014.
We make it clear that during the adjudication proceedings, it will be open to the petitioner to also contend before the adjudicating authority that Notification No. 96/2009-Customs, dated 11 September 2009 should be read in light of the Office Memorandum dated 31 May 2013.
In the meantime, affidavit-in-reply shall be filed on behalf of Respondent No. 2 preferably within two months from today indicating the decision taken on the Office Memorandum dated 31 May 2013. Liberty to the Petitioner to move this Court as and when necessary.