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SCA/17486/2006 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 17486 of 2006
=====================================================
ESSAR
STEEL LTD. & 1 - Petitioner(s)
Versus
UNION
OF INDIA THR' SECRETARY & 3 - Respondent(s)
=====================================================
Appearance :
MR
KS NANAVATI, SR.ADVOCATE for NANAVATI ASSOCIATES for Petitioners
MR
HARIN P RAVAL, ADDITIONAL SOLICITOR GENERAL OF INDIA for
Respondent(s) : 1 -
4.
=====================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 01/12/2008
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
The
petitioner Essar Steel Limited has preferred the present petition
under Article 226 of the Constitution of India against the decision
of the Government of India in not exercising power to grant exemption
conferred by Section 25 of the Customs Act, 1962 (hereinafter
referred to as, the Act )
in respect of the capital goods (machinery) imported by the
petitioner in the year 1993.
In
the year 1993 with a view to expanding its manufacturing capacity at
Hazira, District Surat, the petitioner had imported certain
machinery. The petitioner also made request for exemption from the
custom duty payable on such machinery. As early as on 7th
June, 1994 the Government of India advised the petitioner to clear
the imported goods (the machinery) from the Customs in the normal
course i.e. by paying custom duty. The petitioner did clear the goods
on payment of custom duty. The petitioner, however, went on to make
representations for such exemption which were repeatedly rejected.
Feeling aggrieved, the petitioner has preferred the present petition
in the year 2006. The reliance is placed on order no.207 dated 2nd
November, 1993 made by the Government of India in respect of
M/s.Maruti Udhyog Limited. Under the aforesaid order dated 2nd
November, 1993, M/s.Maruti Udhyog Limited has been granted exemption
from the custom duty in exercise of powers conferred by sub-section
(2) read with sub-section (3) of Section 25 of the Act on conditions
mentioned in the said order.
Mr.Nanavati
has appeared for the petitioner. He has taken us through the
aforesaid order dated 2nd November, 1993 and the public
notice dated 5th November, 1993 given by the Government of
India declaring that, …if similar proposals are received
involving very large import of capital goods for purposes of
generating exports of value added items in an internationally
competitive environment, the Finance Ministry will consider extension
of similar facilities to such exports. Mr.Nanavati
has assailed the decision of the Government of India. In the
submission of Mr.Nanavati, the petitioner has been meted
discriminatory treatment. The petitioner having exported finished
goods worth crores of rupees, the petitioner ought to have been
granted benefit of exemption from custom duty on the capital goods in
the same manner as it was granted to M/s.Maruti Udhyog Limited. He
has also submitted that as the petitioner had been corresponding with
the Government of India there was no occasion for the petitioner to
approach this Court prior to 2006.
The
petition is contested by the Government of India. Learned advocate
Mr.Raval has taken us through the counter affidavit. He has submitted
that the request made by the petitioner was rejected as early as on
7th June, 1994. The present petition filed as late as in
the year 2006 needs to be rejected on the grounds of delay, laches
and acquiescence alone. He has also taken us through the averments
made in the counter affidavit, particularly paragraph 7 onwards, to
demonstrate that the petitioner was not similarly situated as
M/s.Maruti Udhyog Limited. The export already made by the petitioner
was irrelevant in as much as the said export would have been made by
the petitioner in any case. The grant of exemption to the petitioner
as prayed for would also adversely affect the other similar
industries in the local market, etc.
We
are unable to agree with Mr.Nanavati. First; the petitioner has no
fundamental or statutory right to claim exemption from the custom
duty. The powers to grant exemption under Section 25 of the Act are
discretionary. The Court would not interfere in exercise of or in
refusal to exercise of such powers. Second; the petition filed more
than 12 years after the date of the cause of action requires to be
rejected on the grounds of delay, laches and acquiescence. The
explanation put-forward by Mr.Nanavati that the petitioner was
corresponding with the Government of India is no excuse for condoning
the delay and entertaining the petition at this belated stage. Third;
the Government of India has laid a case that the petitioner is not
similarly situated as M/s.Maruti Udhyog Limited and that the grant of
exemption to the petitioner would adversely affect similar industries
in the country. We are, therefore, of the opinion that the petitioner
cannot be said to have been meted discriminatory treatment compared
to M/s.Maruti Udhyog Limited. The comparison with M/s.Maruti Udhyog
Limited is inapposite and is not acceptable.
For
the aforesaid reasons, we dismiss this petition in limine. Notice is
discharged.
(K.M.Thaker,
J.) (Ms.R.M.Doshit, J.)
/moin
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