Bombay High Court
Shivshankar Tilakraj vs Union Of India And Others on 4 February, 1987
Equivalent citations: 1988(16)ECC147, 1988ECR331(BOMBAY), 1987(28)ELT342(BOM)
ORDER
1. This is a petition under Article 226 of the Constitution by a person who is the sole proprietor of an enterprise which is carrying on business of merchant exporter of various kinds of fabrics. As per the Import Policy Appendix 19 of AM-88, the petitioner has been given on Import licence for importing raw material without payment of any customs duty. That the petitioner has been given such an import licence is not deputed. In fact, as it is mentioned in paragraph 4 of the petition, the Deputy Chief Controller of Imports and Exports has issued to the petitioner two separate licences to enable him to import two separate quantities of polyester filament yarn of 10 deniers and above. The petitioner accordingly imported one consignment and filed a bill of entry for home consumption. The goods imported are undoubtedly notified goods, but the consignment after clearance was stored in the godown belonging to the clearing agents. The clerk of the clearing agents by inadvertence did not apply for a notified number. The goods were released on 13th August, 1986. On coming to know the inadvertence on the part of the clearing agents, the petitioner himself wrote a letter on 19th August, 1986 for permission under section 11C of the Customs Act to store the notified goods and gave all the particulars about the same.
2. The petitioner has specifically sated in the petition that there was a delay of 6 days on his part, but it was entirely due to the inadvertence of the clerk of the clearing agents.
3. After the respondents came to know of the fact as informed by the petitioner, the goods were seized and an order purported to be under section 11(1) of the Customs Act was issued by the Superintendent of Customs, Notified Goods Section, on 25th August, 1986. This is the notice which is challenged in this petition under Article 226 of the Constitution. The petition originally came up for admission on 22nd January, 1987; thereafter it was adjourned to 30th January, 1987 and thereafter till today.
4. The facts as mentioned above have not been disputed by Mr. Rege who appears on behalf of the respondents and who is instructed, as I can see, by officers of the Customs Department. It is also clear that the notice dated 25th August, 1986 has been issued by the Superintendent of Customs, Notified Goods Section. On the facts mentioned above, therefore, in my opinion, there was no cause for taking action under section 11(1) of the Customs Act. The goods have been imported openly under an import licence which has been given by competent authority. Though there was a time lag between the clearance of the goods and the application for notified number, that time lag has been convincingly explained in the petition and it has not been denied even in the oral arguments before me.
5. However, Mr. Rege says that the investigations is in progress to find out whether the petitioner is an actual user. I do not see how this investigation can be made by the Customs authorities, especially in view of the fact that an import licence has been given by a competent authority obviously after being satisfied that the petitioner was entitled to the same. But Mr. Rege insists that the Customs authorities in Bombay can even find out whether an import licence which has been given by a competent authority has been correctly given and whether the conditions precedent for the granting of this licence were satisfied in a particular case. Mr. Rege now wants to clarify that the Customs authorities want to examine whether that import licence was obtained on the basis of misrepresentation made by the party concerned. I have read this dictated order back to Mr. Rege and he says that what he has stated is correctly recorded.
6. I have not a moment's hesitation in rejecting Mr. Rege's contention that the Customs authorities here are in law empowered to investigate into the correctness or otherwise of an import licence given by the appropriate authorities. It is not the contention on behalf of the respondents before me that they are suspecting that the import licence is a forged licence, in which case, of course, they may investigate. But I not see how the Customs authorities can sit in judgment over the power exercised by the office of the Controller of Imports and Exports, which office has already given an import licence. The Customs authorities in Bombay are justifying an action which is wholly unjustifiable as far as I can see on the facts of this case by having recourse to untenable arguments.
7. The petition deserves to be admitted. Interim relief must be given forthwith as prayed for by the petitioner. Rule returnable on 22nd April, 1987. Interim relief in terms of prayer (c). The respondents shall allow the petitioner to take the delivery of the consignment on or before 6th February, 1987, failing which they will be liable for action for contempt of Court.