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2020 ] ADANI POWER LTD. v. UNION OF INDIA 67

iable” as used under Section 3 of the Customs Tariff Act, which pertains to levy
of countervailing duty, that is, additional duty equal to excise duty etc. has been
interpreted not in context of the word “levy” which means chargeability, but in
the context of the word “payable” and that while interpreting the similarly
worded Section 30(a) of the SEZ Act, the aforesaid decisions would apply on all
fours.
5.4 It was submitted that while interpreting the provisions of Section
30(a) of the SEZ Act, this Court in the case of the petitioner company itself in
Special Civil Application No. 3142 of 2010 rendered on 15-7-2015, took a view
that when no Customs duty is payable on the goods imported in India, no duty
will be payable on similar goods transferred from SEZ to DTA in view of Section
30 read with Section 51 of the SEZ Act, and was further pleased to hold that the
Notification No. 25/2010-Cus., dated 27-2-2010 as well as the Notification No.
21/2002-Cus. as amended by clause-60 of the Finance Bill, 2010 (Second Schedule
thereto) are ultra vires Entry 83 of List-1 of Seventh Schedule of the Constitution
of India, Section 62 of the Customs Act, 1962 and Section 30 of the SEZ Act, 2005
as well as Articles 14 and 265 of the Constitution of India and consequently, de-
serve to be quashed and set aside.
5.5 It was submitted that once the initial action of levying Customs du-
ty on removal of electricity from SEZ to DTA came to be held as invalid, the sub-
sequent proceedings would not sanctify the same, inasmuch as, it is a settled le-
gal position that in case the foundation is removed, the superstructure falls. In
support of such submission, the Learned Counsel placed reliance upon the deci-
sion of the Supreme Court in the case of Kalabharati Advertising v. Hemant Vimal-
nath Narichania and Others, (2010) 9 SCC 437, wherein the Court placed reliance
upon its earlier decision in the case of Badrinath v. State of T.N., (2000) 8 SCC 395,
wherein it was observed that once the basis of a proceeding is gone, all conse-
quential acts, action, orders would fall to the ground automatically and this prin-
ciple of consequential order which is applicable to judicial and quasi-judicial
proceedings is equally applicable to the administrative orders. Reliance was also
placed upon the decision of a Division Bench of this Court in the case of Gujarat
Paraffins Pvt. Ltd. v. Union of India, 2012 (282) E.L.T. 33 (Guj.), wherein this Court
has held that it is a settled legal position that if initial action is not in consonance
with law, the subsequent proceedings would not sanctify the same. In such a fact
situation, the legal maxim sublato fundamento cadit opus is applicable, meaning
thereby, in case the foundation is removed, the superstructure falls. It was sub-
mitted that in the light of the law laid down in the above decisions, subsequent
exemption notifications to the limited extent, viz., (i) Entry at Serial No. 573 in
Notification No. 91/2010-Cus., dated 6-9-2010, providing for rate of duty at Rs.
100 per 1000 kwh, (ii) Entry at Serial No. 145 in Notification No. 12/2012-Cus.,
dated 17-3-2012, providing for rate of duty at Rs. 30 per 1000 kwh, (iii) Entry at
Serial No. 145 in Notification No. 26/2012-Cus., dated 18-4-2012 providing for
rate of duty at Rs. 30 per 1000 kwh and (iv) Entries at Serial No. 146A and 146B
in Notification No. 9/2006-Cus., dated 16-2-2016 providing for rate of duty at Rs.
40 per 1000 kwh and Rs. 24 per 1000 kwh, respectively are non est and void ab
initio to the said extent, more particularly, when no duty at all is payable with
reference to electricity imported from outside India.
5.6 It was submitted that in view of the above position of law, the im-
pugned demand contained in the communications dated 8-10-2015 and 16-11-
2015 demanding payment of customs duty on the domestic clearance of electrici-
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