Baboo Lall Jain, J. - (1.) This is an application under Article 226 of the Constitution of India. The petitioner No.1 Eastern Spinning Mills & Industries Limited imported certain goods into India which were of the description as mentioned in the Notification No. 216-Cus., dated lst November 1980. A copy of the said Notification is Annexure A to the petition. By the said notification the Union of India in exercise of its powers conferred by sub-section (i) of Section 25 of the Customs Act, 1962, exempted the goods specified in the liable forming part of the said Notification and falling within Chapter 56 of the First Schedule of the Customs Tariff Act, 1975 (Act No.51 of 1975), when imported into India from whole of the Duty of Customs leviable thereon under the said first schedule. Thereafter on 14th December, 1982, another Notification was issued by the Central Government being Notification No. 27G/82 Customs whereby the Central Government in exercise of the powers conferred by sub-section (i) of Section 25 of the Customs Act, 1962 and in supersession of the Notification of the Government of India No. 216 Customs, dated 1st November 1980 exempted the goods specified in the table annexed to the said Notification and falling within Chapter 56 of the First Schedule to the Customs Tariff Act, 1975 (Act No.51 of 1975), when imported into India from so much of the Duty of Customs leviable thereon under the said First Schedule as is in excess of 20% ad valorem. The said Notification, dated 14th December, 1982, is Annexure-'E' to the petition. Another Notification was issued by the Central Government being No. 39/38, dated 1st March 1983 in exercise of the powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962 (Act 52 of 1962) whereby the said Notification No. 276/82 Customs, dated 14th December 1982 was amended and intend instead of the words "20% ad valorem" the figure and words "40% ad valorem" was substituted. The effect of the amendment, dated 1st March 1983 was that the exemption which was in respect of duty of customs in excess of 20% ad valorem was reduced to the extent of the duty of customs in excess of 40% ad valorem. Therefore, by the said third Notification which is Annexure-'C' to the petition the exemption already granted was decreased to the extent of further 20% ad valorem.
(2.) The case of the petitioner is that it entered into an agreement on 6th November 1982 with some foreign party. A Broker's Note dated 6th November 1982 is annexed to the petition. The said Note mentions that the shipment was to be during December 1982/January 1983. Such import was to be made from Austria. On 14th December 1982 the petitioner received a Letter of Credit from M/s. Chemiefaser Leuzing Aktiengesellschaft, an Austrian Party. There is a Copy of the Bill of Lading showing despatch of 520 bales of Lensing High Tenacity High Performance Viscose Fibre, dated 24th January 1983. The bill of the said Austrian party, namely, M/s. Chemiefaser Lensing Aktiengesells chaft is for U.S. Dollars 1,63,675.73. The said goods arrived in the Calcutta Port sometime around 15th March, 1983.
(3.) After the goods arrived in the Port of Calcutta and were intended to be cleared out of the Customs barrier the Customs Authorities demanded payment of duty on the basis that the petitioner was bound to pay Customs duty at the rate of 40% as per the Notification, dated 1st March 1983. The petitioner's contention was that the petitioner was only liable to pay Customs duty at the rate of 20% ad valorem as per the Notification, dated the 14th December 1982 and, according to the petitioner, the petitioner was not bound by the Notification, dated 1st March, 1983.;