VENKATACHALIAH - (1.) BY this petition under Article 32 of the Constitution of India, M/s. Pankaj Jain Agencies, the petitioner, assails the vires of the Notification No. 142/86-Cus. dated 13-2-1986 of the Central Government issued in exercise of powers under S.25(1) of the Customs Act, 1962, amending the earlier Notification No. 70 / 85 dated 17-3-1985. These notifications relate to rates of customs duty on the imports of parts, components and sub-assemblies of Ball Bearings and Roller Bearings. The impugned notification specifically relates to 'parts' of Ball and Roller Bearings.
(2.) THE petitioner carries on business of imports of component parts of Ball and Roller Bearings and claims to be the beneficiary by assignment and transfer of certain replenishment licences initially issued in favour of M/s. Geo Millers and Co. Pvt. Ltd., New Delhi, against exports made by the said licencee. The licences were transferred to M/s. Ashoka Enterprises, New Delhi, Which in turn , further transferred the licences in favour of the petitioner. Pursuant thereto, the petitioner claims to have entered into an agreement with M/s. Business Birds, Singapore, for the supply of 'cups' of Chinese manufacture and said to be component parts of Ball Bearings. The foreign supplier shipped the goods in three different lots from Singapore to Bombay Port. The first consignment of 8600 pieces was sent from Singapore to Bombay on 5-1-1986 per steam ship, Hanlim Mariner. The ship arrived in Bombay on or about 15/01/1986 and the consignment was cleared by the revenue charging import duty at the then prevailing rates though, however, on the question of assessable values the revenue did not accept the invoice-value. The controversy in regard to that particular consignment was as to valuation and not as to the rates of import duty. The two further consignments of 5000 and 13000 'cups' respectively under invoice dated 2-2-1986 are stated to have arrived at Bombay Port on or about 10-2-1986. The petitioner filed two Bills of Entry for home consumption which were noted on 19/02/1986. The dispute in regard to these two consignments concerned in this writ petition is whether the higher rates indicated by the impugned Notification No.142/86 Cus. dated 13/02/1986 were attracted. It is to be stated that the rates of duty are statutorily provided under the Customs Tariff Act, 1975 and these notifications under Sec. 25(1) of the Customs Act, 1962 seek to exempt goods covered by the notification from such part of import duty as may be in excess of what may be specified in the notifications. In that sense the impugned notification, strictly speaking, does not impose or prescribe a rate of duty but has the effect of reducing the extent of the earlier exemption. The petitioner's contention is that the higher rates of duty indicated in the Notification No. 142/86-Cus. dated 13/02/1986 could not be applied to the said two consignments as the impugned notification could not be held to have been duly promulgated or brought into force on the day the import had occurred. Sri Ganesh, learned counsel urged several contentions in support of the challenge to the validity-or in the alternative, of the applicability-of the impugned Notification No. 142/86-Cus. dated 13/02/1986. The contentions urged at the hearing admit of being noticed and formulated thus: First, that the import was complete even before the impugned notification can be said to have come into force as the impugned notification was not made known to those who were likely to be affected by it as the notification was not available in Bombay till the 19th of February, 1986, Secondly, it was urged, that the impugned notification in so far as it prescribed import duty on parts of Ball Bearings, is ultra vires the powers of the Central Government under Section 25(1) of the Customs Act, 1962 as indeed no duty was really contemplated respecting spare-parts or components of Ball Bearings under the Customs Tariff Act, 1975. The impugned notification, it is urged, in effect and substance purports to impose a fresh and nascent duty on spare-parts or components of Ball Bearings which were not originally brought to charge in the statute and that the impugned notification is not only beyond the powers of the Central Government under S.25 (1) but is also violative of the specific condition in sub-sec. (3) of S.25 which requires that the duty shall in no case exceed the "statutory duty". It is said that respecting 'parts' of Ball Bearings there was no "statutory duty" at all. Thirdly, it was urged that the duty imposed constituted an unreasonable restriction on petitioner's fundamental right under Art. 19(1)(g), in that the enhancement brought about by the impugned notification, so far as the present consignments were concerned, was to raise the petitioner's liability from Rs. 1,84,341.00 to Rs. 6,42,065.00.
(3.) BEFORE assessing the merits of these contentions it is necessary to advert to the relevant statutory provisions relating to the rates of duty on imports of Ball Bearings and Roller Bearings and parts thereof under the Customs Tariff Act, 1975. Chapter 84 deals, amongst other things, with Ball or roller Bearings. The relevant provisions say :- JUDGEMENT_198_5_1994Html1.htm Apparently, the goods would, but for the impugned notification, otherwise attract 84.62(2) above. The rigour of this statutory duty was mitigated by exemption Notification No 70/85-Cus. dated 17-8-1985 exempting the imports from so much of the duty as may be in excess of the rates specified in Column No. 4. of the Table appended to the notification. This notification, however, was further amended by the impugned Notification No. 142/86-Cus. dated 13/02/1986. The impugned notification provides : "New Delhi, the 13/02/1986, 24th Magha, 1907 (Saka) Notification No. 142/84-Customs G.S.R. 199(E) - In exercise of the powers conferred by sub-sec. (1) of the S.25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Deptt. of Revenue) No. 78-05-Cus. dated the 17/03/1985, namely:- In the Table annexed to the said notification, for Sl. No. 6 and the entry relating thereto, the following Sl. No. and entry shall be substituted, namely: JUDGEMENT_198_5_1994Html2.htm advalorem Sd/- (K.S. VENKATAGIRI) Under Secretary to the Govt. of India" The impugned notification did not prescribe a rate higher than the statutory duty. The contention of Sri Ganesh that the relevant date with reference to which the rates of custom duty require to be ascertained had already occurred by the time the impugned Notification No. 142/86-Cus. came into force is, on the facts of the present case, clearly untenable. Section25(1) of the Customs Act, 1962 Provides: "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. In Bharat Surfactants (Pvt.)Ltd., v. Union of India, in Excise Law Times - (1989) 43 ELT 189, : AIR 1989 SC 2054, this Court held: "The provisions of S.15 are clear in themselves. The date on which a Bill of Entry is presented under S. 46 is, in the case of goods entered for home consumption, the date relevant for determining the rate of duty and tariff valuation. Where the Bill of Entry is presented before the date of entry Inwards of the vessel, the Bill of Entry is deemed to have been presented on the date of such entry Inwards." (Emphasis supplied) In the present case the date with reference to which rates of duty had to be ascertained was the 19/02/1986. The impugned notification dated 13/02/1986 was published in the Gazette on the 13/02/1986. There is no infirmity in the impugned, notification on this score. ;