Calcutta High Court
Promod Kumar Jalan & Anr vs Union Of India & Ors on 20 January, 2009
Author: Soumitra Pal
Bench: Soumitra Pal
W.P. No.1800 of 2008
G.A. No.4000 of 2008
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Promod Kumar Jalan & Anr.
Versus
Union of India & Ors.
Appearance:
Mr. R.K. Chowdhury, Advocate with
Mr. B.N. Pal, Advocate
.. for the petitioner
Mr. T. Basu, Advocate with
Ms. S. Das. De, Advocate
... for the respondents
Mr. J.P. Khaitan, Advocate with Mr. D. Basak, Advocate .. for the applicant.
Before The Hon'ble Justice SOUMITRA PAL Date : 20th January, 2009.
The Court: This writ petition has been filed by the petitioners praying for a direction upon the respondents to release 5 consignments of Boric Acid each comprising of 43000 kgs. against the Bills of Entry as mentioned in prayer (a) of the writ petition. It has been stated that the Customs Authorities have not released the 2 said consignments though the petitioners faced no difficulty in the clearance of the Boric Acid till 2004. It is submitted that under the circular dated 17th September, 2007 Boric Acid is classifiable under two heads - No.2810 and 3808. "Boric Acid" falling under 2810 is for non- insecticidal use, whereas "Boric Acid" used for insecticide and/or pesticide is classified under the heading 3808. According to the petitioner as it appears from the Bill of Entry for Home Consumption that it falls under Head No. 2810 neither import licence is required nor does it require permit from the Registration Committee. Moreover, it is covered by the exemption granted under Section 38(1)b) of the Insecticides Act, 1968. Submission has been made that Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, does not empower amendment of the provisions contained under the Insecticides Act, 1968. Therefore, it has been submitted appropriate direction, as prayed for, may be issued for release of the consignments in question either finally or provisionally. Alternatively, it has been submitted that the petitioner may be granted liberty to file appropriate application for provisional release before the Customs Authorities in accordance with law.
Learned advocate for the Customs Authorities submits that "Insecticide" has been defined in Section 3(e) 3 of the Insecticides Act, 1968 as any substance specified in the schedule. As Boric Acid finds place in the Schedule, it is an insecticide. Therefore, the petitioner is bound to make an application for such registration. Moreover, as policy conditions regarding import of Boric Acid have been framed in exercise of the power conferred under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, no such import is permitted except under an import permit issued by the Insecticides Board and the Registration Committee under the Ministry of Agriculture. Moreover, as show cause notice dated 8th December, 2008 under Section 124 of the Customs Act, 1962 has been issued by the Assistant Commissioner of Customs, Kolkata and no reply has been furnished, no order may be passed.
Learned senior advocate appearing on behalf of the applicant submits that since boric acid is an insecticide and as there has been a change in the import policy prohibiting import of boric acid without an import permit, it is hit by the provisions contained in Section 111D of the Customs Act, 1962. According to him as restrictions amount to prohibition and as there is a prohibition, the customs authorities have the power to confiscate the goods under Section 111D of the Customs Act. Further, under section 125 of the Customs Act discretion 4 has been conferred on the authorities either to confiscate the goods or to give an option to pay in lieu of confiscation such fine as the customs officer thinks fit. Therefore, as the policy under the law has been formulated and compliance is mandatory, the petition is without merit.
Having heard the learned advocates for the parties and in view of the submissions made by the learned advocate for the petitioner and considering the facts and circumstances of the case, the writ petition is disposed of by granting liberty to the petitioner to file an application before the customs authorities praying for provisional release of the consignment of boric acid in question. If such application for provisional release is filed, same shall be disposed of by the competent authority in the customs' department by passing a reasoned order in accordance with law after giving an opportunity of hearing to the petitioner within a fortnight from the date of filing such application.
I make it clear that I have neither gone into the merits of the case nor into the merits of the show cause notice.
Since parties were not called upon to file their affidavits controverting the allegations made in the writ petition and in the application for intervention, the 5 allegations made therein are deemed not to have been admitted.
The writ petition as well as the application being G.A.No.4000 of 2008 are disposed of.
No order as to costs.
All parties concerned are to act on a signed copy of the minutes of the operative portion of this order on the usual undertakings.
(SOUMITRA PAL, J.) subash/ssaha Asst.Registrar (C.R.)