Bombay High Court
Franco Indian Pharmaceuticals Pvt. ... vs Collector Of Customs (Appeal) Bombay ... on 1 January, 1800
Equivalent citations: 1988(17)ECR121(BOMBAY), 1988(34)ELT447(BOM)
ORDER
1. Rule, returnable forthwith. Respondents waive service.
2. Against the order dated 1st October 1986 issued on 28th October 1986 at Exhibit 'N' an appeal was preferred to the Collector of Customs (Appeals). Pending appeal, an application was made for stay of the above order. Earlier, the said application was rejected ex parte. On grievance being made regarding want of hearing, the said application was fixed for hearing. At the hearing the Collector in his presently impugned order observed that though a letter was sent (by the Collector) to the Director, Research and Development Division, Ministry of Science and Technology, Government of India, New Delhi, on 12th May 1987,seeking confirmation of the end use claimed by the appellants for R and D purposes, the said authority has not sent the requisite certificate despite waiting for four months. The Collector thereupon and most surprisingly enough, dismissed the main appeal itself rendering the stay application infructuous. Hence this petition.
3. It is difficult to appreciate the impugned order. The petitioners were in no way responsible for the delay from the office of the Director, Research and Development Division, Ministry of Science and Technology, Government of India, New Delhi. It was the Collector of Customs who has written to the said Director and the Director was expected to reply thereto to the Collector. For the delay on the part of the Director, Research and Development Division, Ministry of Science and Technology, Government of India, New Delhi, it was not proper to penalise the petitioners. The Collector should have sent a reminder to the Director to expedite his reply. And after receiving a categorical reply, one way or the other, to the question whether Orthocresol in question was actually consumed for R and D purposes, the petitioners' appeal should have been taken up for hearing and decision on merits. Procedure followed as reflected in the presently impugned order was most unfortunate. It was also unjust and improper. The impugned order is unsustainable. It is liable to be set aside with directions as in the final order below.
4. Hence Order :
(a) This petition is allowed. The impugned order Exhibit R issued on 15th October 1987 is set aside and quashed.
(b) The petitioners' appeal against the order dated 1st October, 1986, Exhibit M, is restored along with the application for stay of the said order.
(c) The Collector of Customs (Appeals) will write to and remind the Director, Research and Development Division, Ministry of Science and Technology, Government of India, New Delhi, to expeditious send categorical reply to the Collector's letter of 12th May 1987, Exhibit Q. After receiving reply accordingly, the Collector should proceed, after notice to the petitioner, the hear their appeal aforesaid on merits and in accordance with law.
(d) In view of the facts and circumstances of the case, the order dated 1st October, 1986 Exhibit M by the Deputy Collector of Customs shall stand stayed till the hearing and final disposal of the petitioners' appeal.
5. Rule is made absolute in terms aforesaid but, in the circumstances.