IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WP(C).No. 18375 of 2003(K) --------------------------------------- PETITIONER(S): ------------------------- COVEMA FILAMENTS LIMITED, 14-B, COCHIN SPECIAL ECONOMIC ZONE, KAKKANAD, COCHIN-682 030 REPRESENTED BY ITS GENERAL MANAGER (FINANCE), MR.A.S.DEVA RAJAN. BY ADV. MR.A.K.JAYASANKAR NAMBIAR MR.E.K.NANDAKUMAR MR.A.K.JAYASANKAR NAMBIAR MR.ANIL D. NAIR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN RESPONDENT(S): ---------------------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI-110 001. 2. THE COMMISSIONER OF CUSTOMS, CUSTOM HOUSE, COCHIN-9. 3. THE DEPUTY COMMISSIONER OF CUSTOMS, COCHIN SPECIAL ENONOMIC ZONE, KAKKANAD, COCHIN-682 037. BY ADVS. MR.JOHN VARGHESE, ASSISTANT SG FOR R1 TO 3 MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR MR.JOHN VARGHESE,SC,CEN.BOARD OF EXCISE FOR R2-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.4105/2003 IN WPC. NO.18375/2003 DISMISSED 19.06.2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RELEVANT EXTRACTS FROM THE EXIM POLICY WHICH DETAIL THE SCHEME REGARDING ESTABLISHMENT AND ADMINISTRATION OF UNITS IN SPECIAL ECONOMIC ZONES, DT. NIL. P2:- COPY OF THE RELEVANT EXTRACTS FROM THE HAND BOOK OF PROCEDURES WHICH DETAIL THE SCHEME REGARDING ESTABLISHMENT AND ADMINISTRATION OF UNITS IN SPECIAL ECONOMIC ZONES DT. NIL. P3:- COPY OF THE RELEVANT EXTRACTS FROM THE NOTIFICATION NO.6/02 C.EX DT. 1.3.02. P4:- COPY OF THE ORDER OF THE 3RD RESPONDENT DT. 13.5.03. P5:- COPY OF THE RELEVANT EXTRACT OF NOTIFICATION NO.7/03 CES DT. 1.3.03. P6:- COPY OF THE CIRCULAR NO.37/01 CUS DT. 18.6.01 OF THE MINISTRY OF FINANCE, GOVT. OF INDIA. TRUE COPY P.S. TO JUDGE TSS V.K.MOHANAN, J. ---------------------------------------- W.P.C. No.18375 OF 2003 ---------------------------------------- Dated, 19th day of June, 2009 JUDGMENT The petitioner's company is having a unit at Cochin Special Economic Zone engaged in the manufacture of Superior Nylon Monofilament Yarn. The petitioner has approached this court challenging Ext.P4 order of the 3rd respondent, by which, the request of the petitioner for exemption in terms of Notification No.6/2002 C.Ex. dated 1.3.2002 and No.7/2003 C.Ex. dated 1.3.2003, was disallowed. 2. The prayer in this writ petition is for a declaration that Section 5A of the Central Excise Act, to the extent it mandates that units in the Special Economic Zone must pay additional duty of customs in excess of the amounts paid by domestic manufacturers by way of Central Excise Duty under the Central Excise Act, is illegal and ultra vires the charging provisions of the Central Excise read with the Customs Tariff Act. 3. In support of the above prayer several contentions on the basis of factual assertion and legal provisions are taken in this writ petition. It is specifically urged that before passing Ext.P4 order, no opportunity was given to the petitioner for WPC 18375/03 -:2:- personal hearing. It is also the contention that the 3rd respondent passed the impugned order in a mechanical and arbitrary manner by following Ext.P6 circular and without considering the merits of the cases with reference to the specific provision of the notification. The learned counsel for the petitioner submitted that before passing Ext.P4 order, no show cause notice was also issued calling for explanation of the petitioner. On a perusal of Ext.P4, it appears that the above contention of the petitioner cannot be treated as incorrect or baseless. Nothing is discernible from Ext.P4 to hold that either the petitioner was heard or his contentions or claim were properly dealt with. Under the above circumstances, I am of the view that without entering into the merits of the case, the matter can be remitted back to the same authority for fresh consideration after giving effective opportunity to the petitioner of being heard. 4. In the result, this writ petition is disposed of remitting back the matter to the 3rd respondent for fresh consideration and disposal after hearing the petitioner on merit. In order to enable the 3rd respondent to pass a fresh order, Ext.P4 is quashed. I make it clear that Ext.P4 is quashed without entering into any merits or demerits of the contentions raised by the petitioner. WPC 18375/03 -:3:- The 3rd respondent is directed to dispose of the matter within three months from the date of receipt of a copy of this judgment , which will be produced by the petitioner, after giving opportunity of being heard to the petitioner. The writ petition is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- WPC 18375/03 -:4:- V.K.MOHANAN, J. W.PC.No.18375 OF 2003 JUDGMENT Dated:19.6.2009