M/S PANKAJ JAIN AGENCIES v. UNION OF INDIA

The Judgment of the Court was delivered by

VENKATACHALIAH, CJ. By this petition under Article 32 of the Constitution of India, Mis. Pankaj Jain Agencies, the petitioner, assails the vires of the Notification No. 142/86-Cus., dated 13.2.1986 of the Central G Government issued in exercise of powers under Section 25(1) of the Customs Act, 1962, amending the earlier Notification No. 70/85 dated 17.3.1985. These notifications relate to rates of customs duty on the imports of parts, components and sub-assemblies of Ball Bearings and Roller Bearings. The impugned notification specifically relates to 'parts' of Ball and Roller Bearings. H

p. 606 Copy page pinpoint

2Copy pinpoint2. The petitioner carries on business of imports of component parts of Ball and Roller Bearings and claims to be the beneficiary by assignment and transfer of certain Replenishment licences initially issued in favour of Mis Geo Millers & Co. Pvt. Ltd. New Delhi, against experts made by the said licencee. The licences, were transferred to Mis. Ashoka Enterprises, New Delhi, which in turn, further transferred the licences in favour of the B petitioner.

Pursuant thereto, the petitioner claims to have entered into an agree- ment with M/s. Business Birds, Singapore, for the supply of 'cups' of chinese manufacture and said to be component parts O• Ball Bearings. The C foreign supplier shipped the goods in three different lots from singapore to Bombay Port. The first consignment of 8600 pieces was sent from Singapore to Bombay on 5.1.1986 per Stearn Ship, HANLIM MARINER. The Ship arrived in Bombay on or about 15th January, 1986 and the consignment was cleared by the Revenue charging import duty at the then D prevailing rates though, however, on the question of assessable values he Revenue did not accept the invoice-value. The controversy in regard to that particular consignment was as to valuation and not as to the rates of import duty.

3Copy pinpoint3. The two further consignments of 5000 and 13000 'CUPS' respec- E tively under invoice dated 2.2.1986 are stated to have arrived at Bombay · Port on or about 10.2.1986. The petitioner filed two Bills of Entry for home consumption which were noted on 19th February, 1986. The dispute in regard to these two consignments concerned in this writ petition is whether the higher rates indicated by the impugned Notification No, 142/86-Cus., F dated 13th February, 1986 were attracted. It is to be stated that the rates of duty are statutorily provided under the Customs Tariff Act, 1975 and these notifications under section 25(1) of the Customs Act, 1962 seek to exempt goods covered by the notification from such part of import duty as may be in excess of what may be specified in the notifications. In that sense the impugned notification, strictly speaking, does not impose or prescribe a rate of duty but has the effect of reducing the extent of the earlier exemption. The petitioner's contention is that the higher rates of duty indicated in the Notification No. 142/86-Cus., dated 13th February, 1986 could not be applied to the said two consignments as the impugned notification could not be held to have been duly promulgated or brought into force on the day the import had occurred.

PANKAJJAINAGENCIESv. U.0.1.[VENKATACHALIAH,J.] 607

4Copy pinpoint4. Sri Ganesh, learned counsel urged several contentio.is in support of the challenge to the validity - or in the alternative, of the applicability - of the impugned notification No. 142/86-Cus., dated 13th February, 1986. The contentions nrged at the hearing admit of being notified and formu- lated thus : First, that the import was complete even before the impugned Notification can be said to have come into force as the impugned notifica- B tion was nol made known to those who were likely to be affected byJt as the notification was not available in Bombay till the 19th of February, 1986. Secondly, it was urged, that the impugned notification in so far as it prescribed import duty on parts of Ball Bearings, is ultra vires the powers of the Central Government under Section 25(1) of the Customs Act, 1962 as inded no duty was really contemplated respecting spare-parts or com- c ponents of Ball Bearings under the Customs Tariff Act, 1975. The im- pugned notification, it is argued, in effect and substance purports to impose a fresh and nascent duty on spare-parts or components of Ball Bearings which were not originally brought to chargr; in the statute and that the . impugned notification is not only beyond the powers of the Central D Government under Section 25(1) but is also violative of the specific condi- tion in sub-section (3) of Section 25 which requires that the duty shall in no case exceed the "statutory duty". It is said that respecting 'part's of Ball Bearings there was no "statutory duty" at all. Thirdly, it was urged that the duty imposed constituted an unreasonable restriction on petitioner's fun- damental rights under Article 19(1)(g), in that the enhancement brought about by the impugned Notification, so far as the present consignments were concerned, was to raise the petitioner's liability from Rs. 1, 84.341 to Rs. 6, 42,065.

5Copy pinpoint5. Before assessing the merits of these contentions it is necessary to advert to the relevant statutory provisions relating to the rates of duty on imports of Ball Bearings and Roller Bearings and parts thereof under the Customs Tariff Act, 1975. Chapter 84 deals, amongst other things, with Ball or Roller Bearing. The relevant provisions say : -

84.62 Ball, roller or needle roller bearings : G (1) Ball and roller bearings not 100% plus Rs.100 elsewhere specified. per bearing

(2) Ball bearings of all types, not exce- 200% plus Rs. 100 eding 60 millimetres bore diameter. per bearing H

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A (3) Roller bearings, including needle 200% plus Rs. 100 roller bearings but excluding adapter per bearing roller bearings, not exceeding 85 millimeters bore diameter.

Apparently, the goods would, but for the impugned notification, otherwise attract 84.62(2) above.

The rigour of this statutory duty was mitigated by exemption notifica- tion No. 70/85-Cus., dated 17.8.1985 exempting the imports from so much of the duty as may be in excess of the rates specified in column No. 4 of the Table appended to the notification. This notification, however, was further amendment by the impugned notification No. 142/86-Cus., dated 13th February 1986. The impugned notification provides :"NEW DELHI, the 13th February, 1986. The impugned notification provides :

"NEW DELHI, the 13th February, 1986. D 24th MEGHA, 1907 (SAKA)

NOTIFICATION

No. 142/86-CUSTOMS

E G.S.R. 199(E) : In exercise of the powers conferred by sub-section (1) of the section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Dept!. of Revenue) F No. 78- 05-Cus., dated the 17th March, 1985 namely : -

In the Table annexed to the said notification for SI. No. 6 and the entry relating thereto, the following SI. No. and entry shall be substituted, 11amely:- (1) (2) G "6. Sub-head- l.(a) Parts including sub- 150 per cent ad- ing No ..(3) of assemblies of bearings of valorem plus Rs. 15 description mentioned in per part or sub- item 1(a) of SI. No. 5 assembly as the above. case may be. H

PANKAJ JAIN AGENCIESv. U.0.1. [VENKATACHALIAH,J.] 609

1 2 3 A (b) Parts including sub 150 per cent ad- assemblies of bearings of valorem plus Rs. 26 description mentioned in per part or sub- item l(b) of SI. No. 5 assembly as the above. case maybe. B (c) Parts including sub- 150 per cent ad- assemblies of bearings of valorem plus Rs. 38 description mentioned in per part or sub- item l(c) of SI. No. 5 assembly as the above. ca•e maybe. c (d) Parts including sub- 150 per cent ad- assemblies of bearings of valorem plus Rs. 80 description mentioned in per part or sub- item 1( d) of SI. No. 5 assembly as the above. case maybe. D

2. All other goods 150 per cent ad- valorem

Sd\- (K.S. VENKATAGIRI) E Under Secretary to the Govt. of India"

The impugned notification did not prescribe a rate higher than the statutory duty.

6Copy pinpoint6. The contention of Sri Ganesh that the relevant date with reference to which the rates of custom duty require to be ascertained had already occurred by the time the impugned notification No. 142/86-Cus. came into force is, on the facts of the present case, clearly untenable. Section 25(1) of the Customs Act, 1962' provides :

'If the Central Government is satisfied that it is ne~essary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fu1filled before or after clearance), as may be specified in the notification goods of any specified description from the whole or any part of duty of customs leviable thereon." H

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A In BHARAT SURFACTANTS (PVT.) LTD. v. UNION OF INDIA, in EXCISE LAW TIMES - (Vol. 43-1989, P.189, at p.194), this Court held:

"The provis;ons of Sec. 15 are clear in themselves. The date on which a Bill of Entry is presented u/s 46 is, in the case of goods cnlcrt.:d for home consumption, the date relevant for determining the rate of duty and tariff valuation. Where the Bill of Entry is presented before the date of entry Inwards of the vessel, the Bill of Entry is deemed to have been presented on the date of such entry Inwards."

(Emphasis supplied) c In the present case the date with reference to which rates of duty had to be ascertained was the 19th February, 1986. The impugned notifica- tion dated 13th February, 1986 was published in the Gazette on the 13th February, 1986. There is no infirmity in the impugned notification on this D ~.;cnrc.

7Copy pinpoint7. But. Sri Ganesh urged that it was not sufficient that a Law, Rc:gulation, Statutory Instrument or subordinate legislation is promulgated; and that for their coming into operation it is necessary that they are made Lno\\·n or hr1.1adcast in so1ne recognizable way, so that all men may known E "· '"" it Is Bui the law recognises the distinction between an Act of the l .\!~islature which comes into force on the rlate it receives the assent of the Prc~:ident or the Governor and subordinat:: legislation which require pub- lication .in some recognised way.

It ls, however, urged, that is, until the notification was available in F Bombay - and shown to be so available - the statutory rule or instrument would not become operative.

This contention has the familiar ring of the dictum of Bailhache, J. in Johnson v. Sargant, [1918] 1 KB 101, referred to with approval by Bose, G J. in Har/a v. 17ie State of Rajasthan, AIR (1951) SC 467 who said :

"Natural Justice requires that before a lawcan become operative it must be promulgated or published. It must be broadcast in some . recognizable way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or cus- H tomary channel by or through which such knowledge can be

PANKAJ JAIN AGENCIESv. U.0.1. [VENKATACHALIAH,J.] 611

acquired with the exercise of due and reasonable diligence'. A (See also D.B. Raju v. HJ. Kantharaj, [1990] 4 SCC 178 Para 14.)

In Lim Cltin Aik v. Raginam, (1963) All England Law Reports, P.223 AT 226, the Privy Council also observed : B "It was said on the respondent's part that the order made by the minister under the powers conferred by s.9 of the ordinance was an instance of the exercise of delegated legislation and therefore that the order, once made, became part of the law of Singapore of which ignorance could provide no excuse on a charge of con- travention of the section. Their Lordships are unable to accept this contention. In their Lordship's opinion, even if the' making of the order by the minister be regarded as an exercise of the legislative as distinct from the executive or administrative function (as they do not concede), the maxim cannot apply to such a case as the present where it appears that there is in the State of Singapore no provision, corresponding, for example, to that contained in S. 3 (2) of the English Statutory Instruments Act, 1946, for the publication in any form of an order of the kind made in the present case or any other provision designed to enable a man by appropriate inquiry to find out what "the law" is. " E

8Copy pinpoint8. But then in State of Maharashtra v. Mayer Hans George, AIR (1965) SC 722 at 742, Rajagopala Ayyanagar, J. referred to the following comment of Prof. C.K. Allen on Johnson v. Sargant :

"This was a bold example of judgment-made law. There was no precedent for it, and indeed a decision, Jones v. Robson, (1901) 1 F KB 673 which, though not on all fours, militated strongly against the judge's conclusions, was not cited; nor did he judge attempt to define how and when delegated legislation became known. Both arguments and judgment are very brief. The decision has always been regarded as very doubtful, but it never came under review by G a higher court. 11 •

And observed : 11 We see great force in the learned author's comment on the reasoning in Sargant's case, 1908-1 KB lOL Taking the present .f

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A case, the question would immediately arise is it to be made known in India or throughout the world for the argument on behalf of the respondent was that when the respondent left Geneva on Novem- ber 27 he was not aware of the change in the content of the exemption granted by the Reserve Bank. In a sense the knowledge of the existence or content r.f a law by an individual would not B always be relevant, save on the question of the sentence to be imposed for its violation. It is obvious that for an Indian law to operate and be effective in the territory where it operates viz., the territory of India it is not necessary that it should either be published or be made known outside the country. Even if, there- c fore, the view enunciated by Bailhache, J. is taken to be .correct, it would be apparent that the test to find out effective publication would be publication in India, not outside India so as to bring it to the notice of everyone who intends to pass through India. It was "published" and made known in India by publication in the Gazette on the 24th November and the ignorance of it by the respondent D viho is a foreigner is, in our opinion, wholly irrelevani."

Again in B.K Srinivasan & Anr. etc. v. State of Kamataka & Ors., AIR (1987) SC 1059 at 1067 it was observed :

E "There can be no doubt about the proposition that where a law, whether Parliamentary or Subordinate, demands compliance, those that are Governed must be notified directly and reliably of the law and all changes and additions made to it by various · processes. Whether law is viewed from the standpoint of the F 'Conscientious good man' seeking to abide by the law or from the standpoint of Justice Holmes's 'Unconscientious badman' seeking to avoid tho law, Law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinated legislative powers is not as important if not more important, then governance by Parliamentary legislation. But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must

PANKAJ JAIN AGENCIES v. U.0.l. [VENKATACHALIAH. J.J 613

be published or promulgated in some suitable manner, whether A, such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation."

9Copy pinpoint9. In the present case indisputably the mode of publication prescribed by Section 25(1) was complied with. The notification was pub- B lished in the Official Gazette on the 13th February, 1986. As to the effect of the publication in the Official Gazette, this Court held (Srinivasan' Case Supra at. p. 1067) :

"Where the present statute is silent, but the subordinate legis- C lation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette D or some other reasonable mode of publication."

(Emphasis supplied)

We, therefore, see no substance in the contention that notwithstand- E ing the publication in the Official Gazette there was yet a failure to make the law known and that, therefore, the notification did not acquire the ., elements of operativeness and enforecability. This contention of Sri Ganesh is unacceptable.

10Copy pinpoint10. The second contention is that the impugned notification is viola- F tive of the condition in sub-section (3) subject to which above the power to exempt under Section 25 could be exercised. Sub-section (3) of Section 25 of the Customs Act, 1962 says :

"An exemption under sub-section (1) or sub-section (2) in respect of any goods from any part of the duty of customs leviable thereon G (the duty of customs leviable thereon being hereinafter referred to as the statutory duty) may be granted by providing for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable and any exemption granted in relation to any goods in the H

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A manner provided in this sub-section shall have effect subject to the condition that the duty of customs chargeable on such goods shall in no case exceed the statutory duty."

(Explanation - 'omitted')

B It i~ urged that there was no statutory-duty at all on spare parts and components and that, therefore, the impugned notification is not an exer- cise of the power to exempt but is in itself a source and an independent. Substantive, fresh import spare parts on which no statutory duty obtained earlier. As noticed earlier this contention is devoid of force.

c li.' Note under Section XVI provides :

"2. Subject to Note 1 to this Section, Note 1 to Chapter 84 and Note 1 to Chapter 85, parts of machines not being parts of the articles described in Heading No. 84.64 or parts of the following articles falling within Heading No. 85.18/27, namely (i) insulators or insulated electric wire and the like, (ii) carbon articles used for electrical purposes, or (iii) electrical conduit tubing and joints therefore, are to be classified according to the following rules : -

(a) goods of a kind described in any of the Headings of Chapters 84 and 85 (other than Heading Nos. 84.65 and 85.28) are in all cases to be classified in their respective Headings;

(b) other parts, if suitable for use solely or principally with a particular kind of machine, or with a number of machines falling within the same Heading (including a machine falling within head- ing No. 84.59 or electrical goods and apparatus falling within heading No. 85.18/27) are to be classified with the machines of that kind. However, goods which are equally suitable for use principally with the goods of Heading Nos. 85.13 and 85.15 are to be classified in Heading No. 85.13;

G (c) all other parts are to be classified in Heading No. 84.65 or 85.28."

These notes which are part of the Tariff-provisions read with the Tariff indicate that the 'parts' and components of Ball and Roller Bearings are not excluded as contended. This contention has no substance. As H indicated earlier the rates prescribed in the impugned notification do not

PANKAJ JAIN AGENCIES v. U.0.1. [VENKATACHALIAH, J.] 615

also exceed the rates of statutory duty. The second contention of Sri A Ganesh is not substantial either.

12Copy pinpoint12. The third and the last submission is that the sudden and sharp increase of duty steeply puts-up the petitioner's liability from Rs. 1,84,341 to Rs. 6,42,065 on these consignments constitutes an unreasonable restric- tion on the petitioner's fundamental rights under Article 19(1)(g) of the B Constitution. A tax, in particular, in the nature of duties of customs is not per se violative of Article 19(1)(g). Mere excessiveness of a tax is not, by itself, violative of Article 19(1)(g). This question cannot be divorced from the nature of the right to import. There is no absolute right much less a fundamental right to import. See: the Deputy Assistant Iron and Steel C Controller, Madras & Anr. v. L. Manickchand, Proprietor, Katralla Metal Corporation, Madras, AIR (1972) SC 935 and Andhra Industrial Works v. Chief Controller of Imports & Ors., AIR (1974) SC 1539;!. Fernandes & Co. v. The Deputy Chief Controller of Imports and Exports & Ors., AiR (1975) SC 1208. That apart, no factual foundations are laid to demonstrate how this impost has had the effect of destroying the petitioner's right to carry D on a trade or business. This Contention also has no merit.

13Copy pinpoint13. Jn the result, none of the contentions so strenuously urged by Sri Ganesh deserves to succeed. The Writ Petition is dismissed with costs.

Writ Petition No. 170 of 1987. E WITH

Writ Petition Nos. 1498-99/1986, 1101/1986, 1768/1986, 1037/1986, 1661/1986, 1181/1986, 1522-23/1986 and 1729-30/1986. F ORDER

The contentions raised in these writ petitions are covered by the pronouncement of this Court in 'Writ Petition No. 123/1987 Mis Pankaj Jain Agencies v. Union of India & Others. G For the reasons set out in and following the said pronouncement, these writ petitions are dismissed with costs.

T.W. Petitions dismissed.