The single judge bench held that the enhancement of customs duty applicable after the arrival of the gold consignment was sustainable and the writ petition was dismissed as devoid of merit.
Petition disposed of as being devoid of merit; no quashing of the communication.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF SEPTEMBER 2013
BEFORE
THE HON’BLE MR. JUSTICE A S BOPANNA
WRIT PETITION No.6649/2013 (GM-RES)
BETWEEN:
M/S MICRO INTERNATIONAL NO.401, 4TH FLOOR JAYANTHI BUILDING AVENUE ROAD BANGALORE 560 002 REP. BY ITS MANAGING PARTNER D P NARESH
... PETITIONER
(BY SRI S SHAKER SHETTY, ADV.)
AND:
(BY SRI B P PUTTASIDDAIAH, CGC. FOR R1 SRI B C GURU, ADV. FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE COMMUNICATION DT.24.1.13 UNDER REFERENCE ISSUED
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BY THE R2 AS PER ANN-B TO THE EXTENT OF DEMAND FOR PAYMENT OF CUSTOMS DUTY AT CURRENT RATE FOR THE SUBJECT CONSIGNMENT OF DELIVERY OF 100 KGS OF GOLD & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING :
O R D E R
The petitioner is before this Court assailing the communication dated 24.01.2013 impugned at AnnexureB to the petition insofar as demanding the payment of Customs duty at the current rate for the subject consignment of delivery of 100 Kgs of gold.
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purchase 100 kgs of gold with 999 purity. The second respondent is stated to have confirmed that the shipment would arrive and the petitioner is required to lift the entire material within one month. The customs duty on the same was to be paid and the second respondent was to charge trade margin money of $0.32 cents per Tr.oz. In that regard, ultimately when the gold had arrived, the respondent had informed the petitioner on 16.01.2013. The prior correspondence with regard to the intimation is also referred to. Subsequently, but before the petitioner took delivery of the gold the customs duty was revised by the circular issued by the first respondent on 21.01.2013. In that regard, the second respondent addressed the communication dated 24.1.2013 to the petitioner informing about the circular and the guidelines issued by the corporate office and requesting the petitioner to pay the customs duty on the current rate for the said consignment as the stock is uncommitted and the petitioner was therefore required to pay and thereafter obtain the delivery of the gold. The petitioner is therefore aggrieved inasmuch as the enhanced customs duty
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indicated by the circular is being imposed on the petitioner, despite the same being enhanced subsequent to the date on which the gold had arrived and the petitioner was required to clear the same and the relevant date being 16.01.2013.
Insofar as the case put forth by the petitioner, it is contended that the contract between the parties had not been concluded but on the other hand if it is assumed that it was concluded, these aspects of the matter would not arise for consideration in a writ petition relating to contractual rights. In any event, to justify the action of the respondents, reliance is placed on the circular dated 30.04.2012 in No.PWD/44/2012-13 to contend with regard to the enhancement of the customs duty and has therefore contended that the action of the respondents in requiring the petitioner to pay the customs duty at the enhanced rate is sustainable and the impugned communication does not call for interference at the hands of this Court.
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parties and perused the petition papers.
matter is a contractual one, this Court need not advert to that aspect of the matter since, what requires to be considered in the instant petition is mainly with regard to whether the second respondent would be entitled to apply the circular which has been relied on in the instant petition wherein the customs duty has been enhanced subsequently, in the nature of the contention put forth by the petitioner that when the consignment has arrived on 16.01.2013 whether the revision made subsequent to the same on 21.01.2013 would be relevant to be applied and recovered from the petitioner. On this aspect of the matter though rival contentions have been urged, it is noticed that a similar question had arisen for consideration before the Hon’ble Division Bench of this Court in the case of Bangalore Bullion Traders vs. Minerals and Metal Trading Corporation Ltd (2003(2) Kar.L.J 555). The issue related to the import of gold which
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had been made by the second respondent herein who was
the respondent therein also.
Bench was of the view that the enhancement of the Customs duty made subsequently would be applicable even to the imports which have been made earlier but not delivered, though the second respondent has paid Prerevision Customs duty. Learned counsel for the petitioner no doubt would seek to draw a distinction by contending that in the said case, the issue was where the second respondent themselves had imported the materials and thereafter sold the imported TT Bars of gold. In that context, it is contended that in the instant facts, the petitioner themselves had requested the import of gold through the second respondent since the method of importing gold could only be through the second respondent as it cannot be purchased in the open market.
In such circumstance, it is contended that when the petitioner had requested and by such contract, the second respondent had agreed to import the gold and
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provided the same to the petitioner, any subsequent revision of customs duty after arrival of the gold would not be liable to be paid inasmuch as the very customs duty which was paid on the gold on having been imported by the second respondent and paid by them would be payable by the petitioner who had placed order for securing the gold.
any event is not questioned in the instant writ petition. The issue is only to consider as to whether the enhancement of the import duty made vide Circular which has now been made applicable to the petitioner would be sustainable. However, with regard to the order of Division Bench though the distinction was sought to be drawn, in
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my opinion, the observations made by the Hon’ble Division Bench in paragraph 7 as well as paragraph 15 would clearly indicate that a similar situation had been considered by the Hon’ble Division Bench with reference to the fact as to whether the second respondent who has paid the lesser customs duty as on the date of arrival of the gold would be entitled to recover the enhanced Customs duty. Hence, in my opinion the decision of the Hon’ble Division Bench would squarely apply to the instant facts of the case as well.
Accordingly, the petition is disposed of being devoid
of merit.
Sd/-
JUDGE
akc/bms
2 issues framed by the court
Whether the enhancement of customs duty made after the arrival of the consignment is applicable to the importer for recovering the enhanced duty.
Whether the respondent is entitled to apply the circular enhancing customs duty to the petitioner despite the gold arriving prior to the circular.
Colour shows how this judgement treated each authority
Bangalore Bullion Traders vs. Minerals and Metal Trading Corporation LtdExplained¶32
Bangalore Bullion Traders vs. Minerals and Metal Trading Corporation Ltd (2003(2) Kar.L.J 555)
Sharma Transport vs. Government of A.P.Distinguished¶41
Sharma Transport vs. Government of A.P. and others [(2002)2 SCC 188] · Who else cites this
1 provisions across 1 enactments
M/s Micro International
Union of India
Metals & Minerals Trading Corporation
A S Bopanna
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
