M/S.Union Industries Vs Union of India and Ors.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.955 OF 1999

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 M/s.Union Industries,
 a partnership firm duly
 regustered under the India
 Partnership Act, 1932 and
 having its office at 83,
 Jail Road South Mumbai
 400 009 .. Petitioner.
 V/s.

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 1. Union of India
 through the Joint
 Secretary, Ministry of
 Law, Justice and Company
 Affairs, Aayakar Bhavan,
 M.K. Road, Churchgate,
 Mumbai - 400 020.

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 2. The Commissioner of
 Customs (Import) having
 his office at New Customs
 House, Ballard Estate,
 Mumbai - 400 038 .. Respondents.

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 Mr.Madhur Baya for the petitioner.

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 Mr.R.V. Desai, senior advocate with Mrs.Neeta Masurkar
 for the respondents.

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 CORAM : V.C. DAGA &
 J.P. DEVADHAR, JJ.

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 DATED : 14TH JUNE, 2006.

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ORAL JUDGMENT (Per J.P. Devadhar, J.) :

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 1. The present writ petition is filed to challenge

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 the validity of Section 95(ii)(b) of the Finance Act,
 1998 as well as the three orders all dated 26th
 February, 1999 passed by the Commissioner of Customs
 rejecting the application of the petitioner under Kar

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 Vivad Samadhan Scheme, 1998 (‘KVSS’ for short).
 However, counsel for the petitioner at the final hearing
 of the present petition has given up the challenge to
 the constitutional validity of Section 95(ii)(b) of the
 Finance Act, 1998. Therefore, the only issue required
 to be considered in the present petition is whether the
 Commissioner of Customs (Import) was justified in
 rejecting the application made by the petitioner under
 KVSS, 1998.

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 2. The facts relevant for the present petition are
 that : in the year 1981, the petitioner imported three
 consignments of crude palm stearin and sought clearance
 by paying the duty under heading 1514/17 of the schedule
 to the Customs Tariff Act, 1975. As the Assessing
 Officer opined that the said goods are classifiable
 under heading 1508/13 of the schedule to the Customs
 Tariff Act, 1975, the petitioner filed a writ petition
 in the Delhi High Court bearing Writ Petition No.1961 of
 1981. In the light of the interim order passed by the
 Delhi High Court in the aforesaid writ petition, the
 goods were allowed to be cleared on provisional basis by
 directing the petitioner to pay duty as per the
 classification claimed by the petitioner and on
 furnishing bond for the differential duty.

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 3. During the pendency of the aforesaid petition,

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 the Central Government introduced KVSS, 1998. With a
 view to avail the benefit of the said scheme, the
 petitioner filed three declarations in respect of the
 aforesaid goods which were imported in the year 1981 and
 cleared as per the interim order passed by the Delhi
 High Court. By the impugned orders all dated 26th
 February, 1999, the Commissioner of Customs (Import)
 rejected the application filed by the petitioner on the
 ground that no show-cause notice or demand notice were
 issued to the petitioner on the date of filing of the
 declarations. Challenging the aforesaid orders, the
 petitioner has filed present writ petition.

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 4. To complete the narration of facts, it may be
 noted that during the pendency of the present writ
 petition, the petitioner has withdrawn writ petition
 No.1961 of 1981 filed before the Delhi High Court, on
 4th October, 2001.

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 5. It may be noted that in the case of NRC Limited
 V/s. Union of India, (Original Side Writ Petition
 No.2135 of 2001) decided on 31st March, 2006, in similar
 circumstances we have held that Commissioner was
 justified in rejecting the declarations made under KVSS.
 As in the case of NRC Limited (Supra) in the present
 case also there was no determination of duty on the date
 on which the declarations were filed under KVSS. The

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 contention of Mr.Baya that the endorsement made on the
 bill of entry gives rise to demand of duty and such a
 demand raised by endorsing the bill of entry is covered
 under Section 87(m)(ii)(a) of the Finance Act cannot be
 accepted because admittedly there was no assessment
 order passed in respect of the goods in question. The
 endorsement made on the bill of entry to the effect
 ‘assessed provisionally’ clearly shows that there was no
 final assessment order passed in the matter. It is not
 the case of the assessee that in the present case
 provisional assessment was passed as contemplated under
 Section 18 of the Customs Act. Admittedly, there was
 neither a regular assessment nor provisional assessment
 and the goods were cleared pursuant to the interim order
 passed by the Delhi High Court by estimating the
 disputed duty liability. In such a case, in the absence
 of determination of duty, the petitioner cannot avail
 the benefit of KVSS. In this view of the matter, in our
 opinion the issues raised in this petition are squarely
 covered by the decision of this Court in the case of NRC
 Limited (supra) against the petitioner.

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 6. Mr.Baya placed strong reliance on the decision
 of the Gujarat High Court in the case of Navdurga
 Calendering Works & Others V/s. Union of India & Others
 reported in 2005 (71) RLT 313 (Guj.). The ratio laid
 down therein has no application to the facts of the

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 present case because in that case determination of duty
 liability was not an issue. What is held in that case
 is that all persons who were in arrears as on 31st
 March, 1998 constituted one class and no discrimination
 could be made with reference to the demand notice or
 show-cause notice. In the present case, we have held
 that there is no determination of duty and consequently
 demand notice was not issued. Moreover, in the case
 before the Gujarat High Court there was a show-cause
 notice issued, whereas in the present case no show-cause
 notice has been issued. Thus, the decision of the
 Gujarat High Court in the case of Navdurga Calendering
 Works (supra) is distinguishable on facts.

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 7. For all the aforesaid reasons we do not find any
 infirmity in the order impugned in the petition.

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 8. Accordingly, the petition fails. Rule is

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 discharged with no order as to costs.

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 (V.C. DAGA, J.)

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 (J.P. DEVADHAR, J.)

M/S.Union Industries v. Union of India and Ors.

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M/S.Union Industries v. Union of India and Ors.

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