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2022-TIOL-514-HC-AHM-CUS
Transnational Shipping India Pvt Ltd Vs UoI
Cus - Cargo declared to be "fuel oil" - Test report of the sample examined by the Central Laboratory, Kandla has confirmed that the sample is not "fuel oil" - Petitioner engaged in the freight business has inter alia prayed for the issuance of writ of mandamus directing the respondent nos.2 and 3 to destuff the cargo from the containers and return the empty containers to the writ applicant - Writ applicant has also prayed for a direction to the respondents nos.2 and 3 to collect the CFS/demurrage charges and other statutory charges, to be recovered from the respondent no.4.
Held : Court finds that considering the nature of hazardous substance lying in the subject containers, it would be appropriate to direct the respondent customs authorities to complete the proceedings as regards the "misdeclaration" of the imported goods followed by the confiscation order, if any, within a period of 30 days - If no such order is passed within a period of 30 days, the respondent authorities including respondent no.3 shall proceed to de-stuff the cargo into any other suitable containers - Respondent authorities are at liberty to even auction the imported cargo as proposed in the final notice issued by the respondent no.3 under Section 48 of the Act and at the same time, hand over the custody of the empty subject containers to the writ applicant within 15 days thereafter - Writ application is disposed of: High Court [para 8]
- Application disposed of: GUJARAT HIGH COURT
2022-TIOL-513-HC-AHM-CUS
Torrent Power Ltd Vs UoI
Cus - DGFT issued the policy circular dated 4th January 2019 "clarifying" that the transmission and distribution of electricity constituted the same process of supply of electricity from one point to another and that Sr. No. 12 of the Appendix 5F of Foreign Trade Policy 2015-20 did not permit the import of capital goods for generation, transmission and distribution of power - Petitioner submits that the said Circular is ultra-vires Para 5.01(g) of the Foreign Trade Policy 2015-20/Foreign Trade Policy 2009-14 read with the provisions and scheme of the Electricity Act and, therefore, needs striking down.
Held:
+ Question that falls for consideration is whether the policy circular dated 4th January 2019 is only in the nature of clarification so as to have retrospective effect or whether it introduces a new substantive condition in the EPCG scheme which can, if at all, operate only prospectively?
+ It is not in dispute that the para 5.01(g) of the EPCG scheme which was introduced w.e.f . 18th April 2013 only used the term "transmission" in the prohibited list of activities. Thereafter, by a specific amendment dated 29th January 2016, the "generation" of electricity was also brought within the ambit of negative list of activities. Even then there was no reference to the "distribution" of electricity. Even in the Public Notice No. 47/2015-20 dated 6th December 2017 containing a list of capital goods prohibited under the EPCG scheme, there was no reference to distribution of electricity. [para 19]
+ It was only in the impugned circular dated 4th January 2019 that for the first time reference was made to "distribution" of electricity and it was "clarified" that even distribution of electricity was debarred under the provisions of the EPCG scheme. [para 20]
+ Bench is of the view that the impugned circular cannot be considered as a clarification but it imposes a new restriction in the EPCG scheme by specifying distribution of electricity also as a restricted activity. The terms "transmission" and "distribution" of electricity have distinct and separate meaning in the electricity business which is reflected in the provisions of the Electricity Act. [para 21]
+ Further, there are distinct chapters in the Electricity Act for transmission and distribution. While Part V deals with the transmission of electricity, the Part VI is dedicated for distribution of electricity. Both the activities require separate licenses and they are governed by different statutory provisions. [para 22]
+ Thus, it is apparent that transmission and distribution are separate activities for the purpose of the Electricity Act and they are distinctly understood by persons such as the writ applicants who are engaged in the business involving supply of electricity. [para 23]
+ It is well established by a series of judgements that the terms used in fiscal statute are to be interpreted as they would be interpreted by persons engaged in the relevant trade. [para 24]
+ Applying such principle to the facts of the present case, "transmission" and "distribution" being separately understood in the trade concerning electricity and they having been separately defined and dealt with under the Electricity Act, the impugned circular "clarifying" that transmission and distribution are one and the same cannot be held as valid and legal. Transmission and distribution are separate activities. If the Respondents chose to include even "distribution" in the list of prohibited activities for the purpose of EPCG scheme they could have always done so prospectively by amending Para 5.01(g) of the scheme. It is not even the case of the writ applicants that the respondents cannot prospectively enlist the distribution activity in the prohibited category under the EPCG scheme. [para 27]
+ Having granted the EPCG licenses to the writ applicants on the basis of their disclosure that the capital goods will be used in distribution of electricity, the writ applicants cannot now be put to prejudice for the past transactions by issuing retrospective circular. Such retrospective circular, apart from being legally fallacious is also manifestly arbitrary and violative of Articles 14 and 19(1) (g) respectively of the Constitution in so far as it operates retrospectively. [para 28]
+ Circular dated 4th January 2019 issued by the Government of India is declared and held to be ultra vires Para 5.01(g) of the Foreign Trade Policy 2015- 20/Foreign Trade Policy 2009-14 read with the provisions and scheme of the Electricity Act. [para 34]
- Application allowed: GUJARAT HIGH COURT
2022-TIOL-512-HC-AHM-CUS
Modern Syntex India Ltd Vs Asstt. CCGST & CE
Cus - Grievance of the writ-applicant is that the final assessment proceedings in terms of the Project import Regulations, 1986 are yet to be undertaken.
Held: Bench directs the Assistant Commissioner of Central Excise, Vadodara to immediately take up the matter and see to it that the assessment proceedings are concluded finally with an appropriate order of assessment in accordance with law within a period of two (02) months - writ-application stands disposed of: High Court [para 10, 12]
- Petition disposed of: GUJARAT HIGH COURT |
