- (1.) The writ petition is directed against the Order of the Assistant Collector of Customs dated 16.4.1991, to quash the same and to direct the Respondents to release the goods extending the benefit of exemption under Notification No. 53/88 dated 1.3.1988.
(2.) Before dealing with the argument of the Petitioner, it will be better to peruse the Order of the Assistant Collector dated 16.4.1991. The Petitioner had imported two consignments of Acrylic Plastic Sheets in the from of cuttings of U.S.A. origin. Originally, the Bills of Entries were assessed without levying any countervailing duty. However, before release of goods, the matter was re-examined with reference to the Notification No. 53/88 and a show cause notice was given and after hearing the importers the present impugned Order was passed. The argument of the Petitioner is that the impugned Order is so patently illegal and amounts to failure to follow a well established propositions of law and that it has to be set aside in proceedings under Article 226 of the Constitution of India, without driving the Petitioner to Appellate Forum. For this purpose, reliance is placed on the exemption Notification relating to Acrylic Plastic Sheets. Admittedly, the exemption is as follows: If produced out of any of the following materials or a combination thereof, namely: (i) artificial resins or plastic materials of heading Nos. 39.01 to 39.14; (ii) scrap of Plastics; and (iii) methyl methacrylate monomer on which duty of excise under the Central Excises and Salt Act, 1944 (1 of 1944) or the Additional duty under Section 3 of the Customs Tariff Act,1975 (51 of 1975), as the case may be, has already been paid.
(3.) In the impugned Order, reference is made to this aspect of the case, that only such of these goods manufactured out of specified raw materials, are liable for exemption. The following sentence in the impugned Order is strenuously emphasised by the learned Counsel for the Petitioner: The Notification in question is clearly a conditional Central Excise Notification applicable to the goods of indigenous manufacture, subject to the terms/conditions laid down by the Notification. No doubt, if the authority had meant to deny the Notification only on the ground that the Central Excise Notification applies only for indigenously manufactured goods and, therefore, the question of imposing countervailing duty on the imported goods has nothing to do with the Central Excise Notification, one can understand the argument of the Petitioner. But on the other hand, the said sentence contains two points. I am more concerned with the latter part which says "subject to the terms/conditions laid down by the Notification". Therefore, there is some scope for enquiry on the question whether the imported goods were manufactured as per the exemption notification which I have quoted above. It is therefore not possible for me to say that the impugned Order is on the face of it illegal or ultra vires. In respect of the import of an identical goods, I had passed an order in W.P. No. 17557 of 1990. That decision was approved in W.P. No. 1145 of 1990. Dr. Kantawala, appearing for the Petitioner says that the said judgment related to a different adjudication order which was not identical to the remaining given in the present impugned Order. I am of the opinion, that will not alter the situation because/have held that the question has to be gone into by the authorities with reference to the conditional grant of exemption. I am therefore not inclined to accept the proposition that the Petitioner is entitled to agitate this matter in this Court without filing an appeal. I therefore prefer to follow my earlier judgment in W.P. No. 17557 of 1990 and direct the Petitioner to seek redress in the Appellate Court in respect of the validity of the levy of countervailing duty. However, for the purpose of the release of the goods, I am passing the present order imposing conditions for the release of the goods. In my judgment dated 19.11.1990, the facts of the case in W.P. No. 17557 of 1990 were slightly different from the facts of the present case and it cannot be disputed that prima facie, the argument of the Petitioner is attractive. This is because, the test report of the Assistant Collector of Customs which has now been produced before me shows that the imported goods are made of particular mode of synthetic resins. But Mr. Narasimhan, learned Senior Central Government Standing Counsel for the Respondent says that he has to get instructions on the validity of the test report. In view of those rival contentions, I direct the release of the goods on the following conditions: 1. The Petitioner should pay the admitted duty. 2. The Petitioner should pay 1/4th of the countervailing duty in cash. 3. The Petitioner shall also furnish Bank Guarantee.;