Century Textiles And Industries ... vs Union Of India (Uoi)
2001 Latest Caselaw 771 Bom

JUDGMENT

1. The petitioners and one Apart Pvt. Ltd. filed Writ Petition Nos, 1215 of 1979 and 774 of 1979 [1985 (22) E.L.T. 644 (Bom.)] respectively contending inter alia that on the date when the goods were bonded, the goods were exempt under Notification dated 2-8-1976, though the exemption was later on withdrawn on 1-3-1979. The issue was what the relevant date for levy of duty - date of bonding or date when the bill of entry is presented or the date when the goods were removed from the warehouse. The said issue came to be referred to the Full Bench and the Full Bench following a decision of the Division Bench in Shawhney v. Sylvania and Laxman - 77 Bom L.R. 380 decided in favour of the petitioners and held that as the goods were exempt from payment of tax on the date when they entered the territorial waters no custom duty was payable. In view of this conclusion the Full Bench directed that both the writ petitions be placed before the Division Bench for passing appropriate orders. The Division Bench vide order dated 4-9-1990 allowed the writ petitions in terms of the judgment of the Full Bench.

2. In the meantime the Customs department preferred appeals before the Supreme Court being Appeal Nos. 1257-1258 of 1987 . Both the appeals were allowed by the Supreme Court. It was held that the relevant date for levy of duty is when the bill of entry is presented or the date when the goods were removed from the bonded warehouse. The Full Bench decision was overruled. Pursuant to the decision of the Supreme Court the demand notices have been served upon the petitioners.

3. The learned Counsel for the petitioners submitted that the Customs department had not challenged the order dated 4-9-1990 passed by the Division Bench and thus there is a finding and conclusive judgment in favour of the petitioners and, therefore the demand notices are totally without jurisdiction. We are unable to accept the submission of the learned Counsel for the simple reason that the Division Bench has merely followed the Full Bench and passed final orders allowing the writ petitions in terms of the Full Bench. As the decision of the Full Bench is overruled by the Supreme Court it is not permissible for the petitioners to rely upon the Division Bench decision which was entirely based on the Full Bench decision.

4. The learned Counsel for the petitioners contended that in the writ petition the petitioners had also raised a contention that no show cause notice was issued and therefore the impugned notice issued by the department was not legal and valid. It is not possible for this Court to entertain this submission as the matter now stands concluded by the decision of the Supreme Court in United India & Ors. v. Apart Pvt. Ltd. and Anr. . The petitioners are free to approach the Supreme Court for appropriate clarification or relief.