Karnataka High Court
Pooja Exporters vs Assistant Director, D.R.I. on 1 January, 1800
Equivalent citations: 1988(18)ECC407, 1989(22)ECR86(KARNATAKA), 1989(41)ELT21(KAR), ILR1988KAR2985, 1988(3)KARLJ300
ORDER Swami, J.
1. In this petition under article 226 of the constitution, the petitioner has sought for the following reliefs:
(a) Issue writ of mandamus or any other order or direction or appropriate writ directing respondent no. 1 to release in favour of the petitioner-firm 51 bales of 100% mulbery raw silk seized on 21-9- 1987 and thereafter from the premises of the petitioner and from the premises of M/s. Shivananda Silk Koti, Vasavi Silks, B. T. V. Silks, Kamal Silks and from M/s. G. Shanthilal Transport company holding the same as being without jurisdiction and illegal.
(b) Issue writ of prohibition or any other appropriate writ or order or direction as the goods [case] may be prohibiting respondent no. 1 from conducting/holding any proceedings/enquiry with respect of 51 bales of 100% mulberry raw silk imported by the petitioner in pursuance to import licence validly and legally.
(c) Grant such relief or reliefs as this Honble court may deem fit and proper in the circumstances of the case.
2. The petitioner is a registered partnership firm having its head office at phagawara and a branch office at Bangalore. It is the case of the petitioner that it is an exporter of pure silk textile goods manufactured out of 100% mulberry raw silk imported under the import licence.
3. It is contended on behalf of the petitioner that it has imported 60 bales of 100% mulberry raw silk pursuant to the advance import licence granted to it under the provisions of the Imports and Exports (Control)Act, 1947 read with Import and Export policy for the period from April 1987 to March 1988; that after taking delivery of 60 bales of mulberry raw silk at Bombay port, the same were transported to Bangalore through M/s. G. Shantilal Transport Co., for the purpose of twisting and for carrying out manufacturing process and thereafter to return the manufactured goods to phagwara for embroidery work and thereafter to export the same out of India; that the petitioner has complied with the conditions of the licence' therefore, the Customs Authorities have no jurisdiction either to seize or to take any action in the matter. In support of these contentions, the petitioner has produced the Advance Licence issued under Duty Exemption scheme dated 7-5-1987 as Annexure-D; and bill of entry for home consumption dated 24-9-1987 of Shri Anil Kumar, an active partner of the petitioner - firm as annexure - G.
4. Whereas it is contended on behalf of the respondents that no doubt the petitioner was granted advance import licence to import 60 balsas of 100% mulberry raw silk weighing 6850 Kgs. with duty exemption on 6844.5 Kgs. only ; but the licence was subject to actual user condition and as such the petitioner was not entitled to transport the same from Bombay to Bangalore; that the transport of the bales in question from Bombay to Bangalore was in violation of the exemption notification issued under the Customs Act, 1962; that the authorities exercising the power under the customs Act are entitled to exercise the power irrespective of the fact that the petitioner has exported the manufactured material in compliance with the condition of the import licence. In support of their case, the respondent, along with the statement of objections, have produced the mahazars effecting the seizure of 51 bales of 100% mulberry raw silk in question and the notification dated 5-4-1982 issued under section 25 of the Customs Act in super session of the earlier notification dated 1-9-1977 and also the Duly Exemption Scheme - Appendix-19 (Chapter 16). The contents of the import licence granted to the petitioner and the duty exemption entitlement certificate and also the notifications issued under sub- section (1) of section 4 of the customs Act, 1962 by the Central Government appointing and empowering certain officers of the customs Department to exercise the powers under the Customs Act. They have also placed reliance on the relevant provisions of the Import and Export policy and the actual user scheme. In addition to to this, they have also filed additional statement stating that the show cause notice has been issued and it is now open to the petitioner to file his objections and pursue the remedy available under the Customs Act.
5. Having regard to the aforesaid contentions, the following points arise for consideration:
(1) Whether the respondents have had no authority to size 51 bales of mulberry raw silk in question?
POINT NOS. 1 AND 2:
These two points are considered together as they are inter-connected.
6. It is not in dispute that the petitioner is a registered partnership firm having its head office at phagwara and branch office at Bangalore. It is also not in dispute that the petitioner is a manufacture-exporter. The petitioner was granted Advance Licence N. P/L/2243588/61/IXX/103/Z/87 dated 7-5-1987 for importing 100% mulberry raw-silk with duty exemption on 6844.5 Kg. only worth Rs. 17,47,750 on certain conditions. The conditions of import are stated in the very licence itself, which are as follows:
"(1) The licence shall be subject to the conditions in force relating to the goods covered by the licence as described in the relevant Import Trade Control Policy Book, or any amendment thereof made up to land including the date of issue of the licence, unless otherwise specified.
(2) This licence shall be subject to the conditions applicable to the class of importer concerned as contained in the relevant Import Trade Control Policy Book and the Hand Book of Import Export Procedures, or any amendment thereof made up to and including the date of issue of the licence, unless otherwise specified.
(3) This licence shall be subject to the conditions contained in clause 5, subclasses (2) and (3) of the Imports (Control) Order, 1955, dated the 7th December, 1955 as amended up to land including the date of issue of licence unless otherwise specified."
7. Under the Imports (Control Order, 1955, the Central Government has issued Advance Licence Scheme exempting the goods imported under the Advance Licence Scheme from payment of duty of customs levied thereon. As per the advance licence scheme, the licence apart from complying with the conditions of licence the importation of the material is subject to the conditions contained in the notification No.44, dated 19-2-1987 which superseded the earlier notification No. 117/78. Those conditions are as follows:
"G. S. R. (E). - In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) and in supersession of notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 117/Customs [G. S. R. 318 (E), dated the 9th June 1987, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts goods imported into India, against an Advance Licence issued under the Imports (Control) Order, 1955, or obtained against an Advance Release Order, being materials required to be imported for the purpose of manufacture of products (hereinafter referred to as the resultant products) or replenishment of materials used in the manufacture of the resultant products, or both, or for export as mandatory spares along with resultant products, for execution of one or more export orders, from the whole of the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and from the whole of the additional duty leviable thereon under section 3 of the said customs Tariff Act subject to the following conditions, namely: -
(a) the materials imported are covered by the a Duty Exemption Entitlement Certificate (hereinafter referred to as the said certificate), issued by the licensing authority in the form specified in the schedule to this notification, in respect of the value, quantity, description, quality or technical characteristics, as specified in part `C` of the said Certificate;
(b) the importer at the time of clearance of the imported imported materials makes, -
(i) a claim in writing to the Collector of Customs for such exemption and executes a bond or legal undertaking before such authority as may be approved by the central Government for compelling with the conditions specified in this notification;
(ii) a declaration before the Assistant collector of Customs binding himself to pay on demand an amount equal to the duty leviable but for the exemption, on the imported materials in respect of which the conditions specified in this notification have not been complied with;
(c) the goods corresponding to the resultant products and the mandatory spares, in respect of value, quantity, description, quality or technical characteristics, as specified in part `E` of the said certificate are exported within the time specified in the said certificate or such extended period as may be granted by the committee;
(d) the exempt materials shall be utilised for the manufacture of resultant products specified in part `E` of the said certificate or for export as mandatory spares, and no portion thereof shall be sold, loaned, transferred or disposed of in any other manner:
Provided that where such exempt materials are imported for replenishment of materials used in the manufacture of resultant products exported, holder of an advance licence being a manufacturer - exporter may utilise the replenished materials for further production subject to actual user conditions:
(e) in the case of goods being nylon fibre, nylon yarn, nylon fabrics, polyester fibre, polyester yarn, polyester fabrics, stainless steel sheets, stainless steel strips, magnetic tapes, precious metals, metals clad with precious metals and articles thereof, the import shall be only through any of the sea ports a Kandla, Bombay, Cochin, Madras, Visakhapatnam and Calcutta or through any of the airports at Bombay, Calcutta, Delhi, Madras and Bangalore or through either of the internal container depots at Delhi or Bangalore, and the export of resultant products in which such goods are used shall be only through any of the said sea ports or airports or internal container depots;
(f) the import of mandatory spares shall not exceed 5% of the value of the Advance Licence.
Explanation. - In this notification,-
(i) `Committee' means the Inter-departmental Committee as constituted by the Central Government under the office Memorandum of the Government of India in the MInistry of Commerce No. 1 (3) 66-EAC dated the 26th June, 1967, for the time being in force, or as re-constituted by the central Government from time to time;
(ii) `exempt material' means the materials imported and specified in part `C' of the said certificate and eligible for exemption from duty under this notification;
(iii) `imported against Advance Licence' includes goods imported under O. G. L. in terms of the import and export policy for the time being in force, for which at the time of clearance out of customs control, a valid Advance licence is produced by the exporter;
(iv) `licensing authority' means an authority competent to grant a licence under the Imports and Exports (Control) Order, 1955 made under the Imports and Exports (Control) Act, 1947 (18 of 1947);
(v) `mandatory spares`means parts of the resultant product which are to be compulsorily supplied as pears as per the relevant export order or contract for substitution if it becomes faulty or worn out.
(vi) `materials` means goods which are raw materials, components, intermediate products or consumables used in the manufacture of resultant products and their packing, or mandatory spares to be exported along with the resultant products;
(vii) `Obtained against Advance Release order' means goods obtained in terms of a Release Order from a canalising agency or a public sector trading or service agency allowed importation in bulk for servicing the requirements of the Advance Licence holders where the goods are imported by the said agencies and ware housed in accordance with chapter IX of the Customs Act, 1962 (52 of 1962);
(viii) `Release Order' means a Release Order issued by the licensing authority under Duty Exemption Scheme (contained in the Import and Export policy for the time being in force) on the concerned canalising or public sector trading and servicing agency, for release of goods already imported and warehoused under Chapter IX of the Customs Act, 1962 (52 of 1962);
(ix) `resultant products' means the goods specified in part `E' of the said Certificate."
From the aforesaid conditions, it is clear that the importation of the material is subject to actual user conditions.
8. "Actual user" as defined in the Import and Export policy for April 1985 to March 1988 is as follows:
"Actual user `means a person who applies for/secures a licence for the import of any item or an allotment of an imported item required for his own use, and not for business or trade in it. Thus, in the case of an industrial undertaking, the item concerned shall be utilised for the manufacturing processes or operations conducted within is authorised premises (or made available to jobbing units or other units outside for intermediate processing only as part of such production effort). In the non-industrial category, such as hospitals, research and development units or any other institutions, commercial establishments and individuals, the concerned item shall be utilised for its/his own use, i.e., for the purpose for which the item was sought for import."
The petitioner is "actual user (industrial)" is also defined in the aforesaid policy.
"actual user (industrial)"shall mean an industrial undertaking be it in the large scale, small scale or cottage industries sector, engaged in the manufacture of any goods for which it holds a licence or registration certificate from thee appropriate Government authority, wherever applicable."
9. The Duty Exemption Entitlement certificate contains several parts. Part-A relates to name and addresses of factories of the holder of the certificate where the resultant products will be manufactured. In part-A only the address of the petitioner as "M/s. Pooja Enterprises, Bazar Bansanwala, phagwara, 8" is mentioned. No other address or place is mentioned. No other place of manufacture is mentioned. Part-B relates to the name and addresses of the factories where the ancillaries of the resultant produce will be manufactured. In part-B it is stated "as above" meaning as stated in Part- A. That means factory at Phagwara only. Part-C relates to the list of materials and port of Registration. In part-C, in the second column "100% mulberry raw silk" is mentioned. In other columns, weight and value of the material are mentioned. Port of registration is mentioned as Delhi. Part-D relates to the particulars of imports of exempt materials. Part-E relates to resultant products. In part-E it is stated that the resultant products are pure silk sarees, fabrics, dupattas made up of 100% mulberry raw silk, suit pieces weighing 5070 kgs. Part-F relates to particulars of exports in which 25 entries are made.
10. The notification issued under section 25 of the Customs Act, 1962, among other things, enables granting of advance licence for importing 100% mulberry raw silk. The import of mulberry raw silk is subject to customs duty under section 11 of the customs Act, 1962 (hereinafter referred to as the "Act"). The Central Government has got power to impose prohibition on importation and exportation of goods. It is under this provision, the notification is issued with regard to importing of certain articles and also regulation of importing and conditions thereof. Sub-section (1) of section 12 of the Act provides that except as otherwise provided in the Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975, or any other law for the time being in force, on goods imported into, or exported from India. As per sub-section (2) of section 12 of the Act the provisions of sub- section (1) shall apply in respect of all goods belonging to Government as they apply in respect of goods not belonging to Government as they apply in respect of goods not belonging to Government.
Section 25 of the Act enables the Central Government to grant exemption from duty in respect of certain articles imported. It is in exercise of the power under section 25(1) of the Act that the Central Government has issued the notification No. 44, dated 19.2.1987 regarding "Import of Goods against Advance Licences" superseding the notification No. 117/78, dated 9.6.1978, exempting from duty for the goods imported into India against an Advance Licence issued under the Imports (Control) Order, 1955 obtained against an Advance Release Order for the purpose of manufacturing of products which are called as "resultant products", or replenishment of materials used in the manufacture of the resultant products, or both, or for export as mandatory spares along with resultant products for execution of one or more export orders from the whole of the duty of customs leviable thereon which is specified in the First Schedule to the customs Tariff Act, 1975 (Act 51 of 1975) and from the whole of the additional duty leviable thereon under section 3 of the said Customs Tariff Act on certain conditions.
One of the conditions is that the exempt materials shall be utilised for the manufacture of resultant products specified in the duty exemption entitlement certificate. The further condition is that the exempt material or any portion thereof shall not be sold, loaned, transferred or disposed of otherwise under any circumstances. In case where such exempt materials are imported for replenishment of the materials used in the manufacture of resultant products exported and holder of an advance licence being a manufacturer-exporter may utilise the replenished materials for further production subject to actual user conditions. Similarly, the licensing authority may consider the request of holder of advance licence not being a manufacturer-exporter for transfer of the replenished materials at landed cost, to the supporting manufacturer concerned, whose name appears in the duty exemption entitlement certificate for further production, subject of actual user condition.
11. As it is already pointed out "the actual user condition" means the imported material should be used at the place specified in the advance licence and for manufacture of resultant products for exportation. Therefore, in the instant case, the advance licence only mentioned the manufacturing place at phagwara. Even in Par-B also the very same address is mentioned. That being so, it was not at all open to the petitioner to transport the 100% mulbery raw silk bales in question from Bombay to Bangalore, even after fulfilling the export obligation.
12. The case of the petitioner is that the imported mulberry raw silk was transported to Bangalore for the purpose of twisting whereas it is stated by the respondents in para of the statement of objections as follows:
"The goods were seized on the reasonable belief that the goods imported under the cover of an advance licence with duty exemption were being used for a purpose other than the purpose for which the alleged advance licence was obtained and are liable to confiscation under the provisions of Customs act, 1962. It may be mentioned here that no goods were seized from any of the weavers` premises as contended by the petitioner. The respondent has authorized under the provisions of the Customs Act, viz. under section 105 of the customs Act, 1962, the DIR officers to search the aforesaid premises. The officers entered the premises with proper authorisation to search the aforesaid premises and the authorisation has been issued as per the requirement of law. After the searches were completed, a proper mahazzar/panchanama were drawn by the authorised officer for seizing the goods/documents from the above mentioned premises. The proprietor/partners of the above mentioned premises were present throughout the search and they have signed the panchanama as well as the search authorisation also. The searches were carried out in the presence of independent witnesses and also the partners/proprietors of the premises. After completing the panchanama the copies of the panchanamas were giving to the partners/proprietors of the premises (copies enclosed). It is a blatant lie of the petitioner contended in this para. of the writ petition that mahazars were drawn showing the seizures of goods but neither the petitioner nor the weavers were given copies of the mahazar/panchanama made by respondent- 1. In fact the petitioner has made this wrong averment and has suppressed the true facts. Petition has to be dismissed on the ground of laches."
It is also further stated in para. 10 of the statement of objections that the bales were actually sold contrary to the conditions of the licence. The names of the persons from whom the bales were seized are stated in para. of the statement of objections. Except 4 bales which were found in the premises of the petitioner-firm, the remaining 47 bales were found in the premises of different person, In fact it is claimed by the respondents that those persons from whom the bales are seized, have admitted that they have purchased them. As the mulberry raw silk in question imported under Advance Licence Scheme has been seized under section 111 of the Act, a show cause notice has also been issued under section 112 of the Act for contravention of section 111(o) of the Act. Therefore, it is neither necessary nor appropriate to express any opinion on the merits of the case. It is because of this, Shri Chandra Kumar, learned Counsel for the petitioner did not address arguments on merits.
13 . However the main contention of the petitioner is that the Customs Authorities have no jurisdiction to seize as long as there is no material to show that the notification No. 44, dated 19.2.1987 issued under section 25(1) of the Act has been contravened. The fact that the goods in question are imported under the advance license issued under the Imports (Control) Order, 1955 does not in any way affect the authority or jurisdiction of the customs authorities to pursue the imported material. As such the seizure of the imported mulberry raw silk in question is accordance with the provisions of the Act and the notification issued thereunder. However Sri Chandra Kumar, learned Counsel for the petitioner has placed reliance on a decision of the supreme Court in M/s East India commercial Co. Ltd., Calcutta and Another v. Collector of customs, Calcutta 1983 ELT 1342 (S.C.) (IR 1962 SC 1893). That was a case in which contravention of the conditions of licence wa alleged. It was held by the Supreme Court that for the contravention of the conditions of the licence, the Customs Authority would not have jurisdiction as along as there was no contravention of the order issued under the Imports and Exports (Control) Act, 1947. As the notices issued only alleged contravention of the conditions of the licence, even if the allegations contained in the notice were accepted, the same did not amount to contravention of the provisions of the Imports and Exports (Control) Order. Therefore, it was held that the action taken was not sustainable. That position does not obtain in the instant case. Therefore, this decision is of no assistance to the petitioner.
13A. However, in a later case in Abdul Aziz v. State of Maharashtra while dealing with clause 5 of the Imports (Control) Order and after referring to the aforesaid decision in the case of M/s. East India Commercial Co. Ltd, it was observed thus:
"12 In support of the second contention that the Order does not provide for imposing the condition that the imported goods be not sold, reliance is placed on the decision in East India Commercial Co. v. Collector of Customs - . In that case, a condition was imposed in the licence prohibiting the importer from selling the imported goods. Sub-clause (1) of clause (a of Notification No 2/ITC/48, dated March 6, 1948, provided for imposing a condition in the licence to the effect that the importer shall not dispose of or otherwise deal with the goods without the written permission of the licensing authority or any person duly authorised. Sub-clause (v) of Clause (a) of the notification provided:
"that such other conditions may be imposed which the licensing authority considers to be expedient from the administrative point of view and which are not in consistent with the provisions of the said Act."
The actual condition imposed, however, did not fall under sub-clause (1) of clause (a) and was sought to be supported by relying on sub- clause (v). This Court held that under that clause a licensing authority was competent to impose only such conditions as may be expedient from the administrative point of view. This Court further held that prohibiting an importer from disposing of the goods imported affects the rights of that person and therefore such a condition cannot be prescribed in the licence in the absence of a rule permitting that to be done, In the case before us, the licence has been issued under the Order of 1955. The language of sub-clause (2) of clause 5 of that order is wide and permits the imposition of a condition which was outside sub-clause (v) of clause (a) of the Order of 1944. Sub-clause (4) of clause (5) further makes it obligatory upon the licensee to comply with all the conditions imposed or deemed to be imposed under Clause 5. We therefore do not agree with the second contention and hold that the licensing authority is competent under the Order to impose the condition that the imported goods be not sold to any person and thus to affect the ordinary right of the importer.
14. The third contention too has no force. Sub-clause (4) of clause 5 provides that the licences shall comply with all conditions imposed or deemed to be imposed under that clause. The contravention of any condition of a licence thus amounts to the contravention of the provisions of sub-clause (4) of clause (5) of the order and consequently to the contravention of the order made under the Act. It follows that if the Association, the license, dos not comply with the conditions of the licence about the use of the goods to be imported, it contravenes the order made under the Act and makes itself liable to punishment wider section 5 of the Act.
14A. The cases reported as C. T. A. Pillai V. H. P. Lohia, and holding that the infringment of a condition in the licence not to sell goods imported to third parties is not an infringment of the order, are not of help as they deal with the contravention of the conditions of the licence granted under orders dated July 1, 1943 and March 6,1948 which did not contain a provision comparable with the provisions of sub-clause (4) of clause 5 of the order of 1955. In the instant case, as already pointed out, the respondents have alleged contravention of the condition prescribed by the Notification No. 44, dated 19.2.1987 reproduced in the earlier portion of this order. Further, the observations contained in paras. 13 and 14 of the judgment of the Supreme Court in Abdul Aziz`s case reproduced above are also to the affect that contravention of the conditions of permit having regard to the provisions contained in sub-clause (4) of Clause 5 is equivalent to the present sub-clause (5) of clause 5 of the Imports (Control) Order, 1955 as it stands today. Therefore, the decision in Abdul Aziz`s case does not help the petitioner. On the contrary it does support the case of the respondent.
15. Reliance was also placed on a single Judge decision of the High court of Madras in Ceyvero Southern Inc. V. Union of India and other (W. P. NOs. 9578 and 11152 of 1985 D. D. 1986). Apart from the fact that the said decision is under appeal before a Division Bench of that court in Write Appeals Nos. 585 of 1986, and the operation of that judgment has been stayed, it is rendered without considering the effect of violation of actual user condition subject to which the import licence in question was granted under Advance Licence Scheme. Therefore, it is not possible to agree with view taken by the High court of Madras in the aforesaid case.
16. Reliance was also placed on a decision of the High court of Bombay in Loash Chemical works V. Messrs. Mehta, Collector of customs (Preventive)Bombay in Others -1987 ELT 235 (BOM), in support of the proposition that once the export obligation is fulfilled, the goods ceased to be prohibited goods, it is observed thus:
"The functions of the licensing authorities and the customs Authorities operate in different fields though they may at times interest so as to operate in some common area. The function of the licensing authorities is to consider whether any particular item should be allowed to be imported or not, looking to various circumstances such as the requirement of the item, the amount of foreign exchange involved, permissibility for import and other relevant relevant factor,. If satisfied about the feasibility and permissibility of import it is their function to permit the import by grant of licence and imposed such conditions as they find necessary. This granting of licence may be dependent upon a policy enuciated in advance by the Government or may even be made to depend on the individual judgment of the licensing authority. Such a policy may be publicised for the convenience of the importers or kept confidential and made known only to the officers concerned. It may be that from time to time import of certain items instead of instead of being governed by a policy laid down in advance, benefit to the individual judgment of an officer who may not enunciate any policy in advance. As against this the function of Customs Authorities start only after the goods are imported and brought into to the territorial water of the country. Customs Authorities are concerned with the recovery of customs duty and to check evasion of payment of duty and with the prevention of entry of the goods which are prohibited goods as defined by the Customs Act. The prohibited goods are defined by Section 2(33) of the Customs Act, 1962 to mean any goods the import or export of which is subject to any prohibition under that Act or any other law for the time being in force. However, the goods in respect of which the conditions subject to which the goods are permitted to be imported have been complied with are excluded from the definition of prohibited goods. This exception in respect of goods permitted to be imported has correlation with and it is to be understood in the light of the scheme of the Import and Export (Control) Act and Import (Control) Order. By section 3 of the Act, the central Government is given power to prohibit, restrict or control the import of goods and under clause 3 of the order, there is blanket prohibition on import of any goods of the description specified in schedule I except under and in accordance with the licence or customs clearance permit granted by the Central Government or by any officers specified in Schedule II. It is in view of this provision, that when the conditions subject to which the goods are permitted to be imported are complied with, they are excluded from the definition of prohibited goods in the customs Act. Accordingly, by section 47 of the Customs Act, it is provided that where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under that Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. The effect of section 47 read with section 2(33) is that once licence is granted, the proper officer has to ascertain (i) whether the goods sought to be imported correspond to the description in the licence (ii) whether the conditions imposed in the licence and required to be complied with by the importer have been complied with by the importer and if his finding on the aforesaid issues is in the affirmative, he is bound to allow clearance of the goods on payment of duty. It is not for the customs Authorities to interpret licensing policy or to enforce the same once a valid licence is produced. This function is of the licensing authority. If this bifurcation of function is not adhered to, there is every likelihood of utter confessional.
The licensing authority may interpret the policy one way and the customs Authorities may take contrary views, producing a conflict between the two authorities resulting in harassment to the importer. It is therefore, that the function of the two authorities which operate in two different spheres must be kept within their proper ambit. If a licence is granted in respect of a particular item by the licensing authority, the customs authority will have no right or power to go beyond the licence and determine as to whether the said licence related to prohibited item. It is only the licensing authority who has to determine the said question at the time of granting licence.
The question is not one of whether goods are prohibited category or not. Admittedly, the goods are subject customs duty. The are exempted from customs duty under certain conditions and are imported under advance licence. When the importation of goods takes place under Advance Licences Scheme, it is governed by the conditions imposed under the notification No.44,dated 19-2-1987issued under section 25 of the Customs Act. As such, the Customs Authorities have always the power to find out whether the conditions of the notification No.4. dated 19.2.1987 are complied with . If prima facie there is contravention of the conditions imposed by the notification No. 44. dated 19.2.1987 which form part of the advance licence also, the customs authorities are entitled to seize the goods and proceed with the matter in accordance with the provisions contained in the Act. It is also very pertinent to notice that clause (o) of section 111 of the Customs Act is very widely worded. It includes not only contravention of the conditions of the licence by also contravention of the orders issued under the Act. It specifically provides :
"The following goods brought from a place outside India shall be liable to confiscation:-
(a) to (n) not necessary.
(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer."
Therefore, if the customs authorities are prima facie satisfied that there is a contravention of the conditions under which the importation of goods has taken place and there is no waiving of those conditions by the proper officer, they are entitled to take action in accordance with the provisions of the Act. In the instant case there is no order passed by the proper officer, they are entitled to take action in accordance with the provisions of the Act. In the instant case there is no order passed by the proper officer under the Imports and Exports (Control) Order and the notification issued thereunder, excepting the petitioner from observing the actual user condition.
17. In fact a communication dated 6-11-1987 daring No. 17/19/P. 5/AM. 86/ECA/ASR/820 issued by the Assistant Director, Directorate of Revenue Intelligence in connection with the goods in question is placed before me. The said communication reads thus:
"Kindly refer to your letter No.856(17) ASR/87/879 dated 13-10-1987 on the above subject.
The paras we required information is as under:-
(i) M/s. Pooja Exporters, Phagwara submitted in this officer certain shipping bills for FOB value of Rs. 38,96,188 in respect of exports made before issue of the said licence to them. They also submitted certain shipping bills for a FOB value of Rs. 31,11,378 in respect of exports made after issue of the said licence but before execution of bank guarantee, which was submitted for proportionately reduced amount of the bank guarantee. Photostat copies of the concerned shipping bills submitted by the firm have already been obtained by you from the concerned licence file No. Adv-128/AM. 87/EPI/ASR/Lic.
(ii) The firm did not intimate this officer regarding diversion of the goods to Bangalore. Hence there was no question of grant of permission in this behalf.
(iii) There is no provision for making inquiry regarding existence of factory. Therefore this officer is not in a position to say whether the factory is actually functioning at the given address shown in the application.
(iv) This office has not verified the existence of the foreign buyer."
From the aforesaid communication it is clear that the petitioner did not intimate the office regarding diversion of the goods to Bangalore. Hence, there was no question of grant of permission in this behalf. That being the position and there being a prima facie case of contravention of the condition of the Notification No.44, dated 19-2- 1987 as to actual user in as much as the imported goods are transported from Bombay to Bangalore, it is not possible to hold that the customs authorities have had no jurisdiction to seize the goods in question and pursue the matter in accordance with the provisions of the Act.
18. Paragraph 30 of Appendix 19 relating to utilisation of exempt materials specifically stated thus:
"Exempt materials imported against a licence under this scheme shall be utilised for the manufacture of the resultant products specified in the DEEC. Such materials shall not be loaned, sold or transferred or disposed of otherwise under any circumstances. However, in cases where the export obligation has been partially of fully met before the receipt of the licence (but made after the date of receipt of the application for the licence), the Advance Licensing Committee in the office of the CCI & E, New Delhi, may consider transfer at Landed cost of the exempt materials imported subsequently on this licence as replenishment to the supporting manufacturer concerned whose name appears in the DEEC for further production and subject to Actual User Conditions."
In the instant case, there is no mention of the names of supporting manufacturer in the advance licence. In addition to this, as already pointed out there is no permission granted for transporting mulberry raw-silk in question form Bombay to Bangalore.
19. The contention of the petitioner that on issue of a certificate for having complied with the export obligation, the petitioner becomes free to deal with the imported 100% mulberry raw-silk in question which is imported under the advance licence scheme cannot be accepted. As long as the importation is on actual user condition, it has to be used in the manner provided under the Notification No. 44, dated 19-2- 1987. For the purpose of transporting such material from the place mentioned in the advance licence to another place, the permission has to be obtained. No such permission was obtained and such a condition was also not waived. The petitioner has not even sought for exemption of such a condition. that it is so, is clear from the communication dated 6-11-1987 which is reproduced earlier.
20. Reliance was also placed on the public No. 40/87, dated 9-6-1987 relating to utilisation of indigenous material for export obligation under the advance licence. The said notice reads thus:
"Attention is invited to customs Notification No. 117/78, dated 9-6- 1978, which has been superseded by customs Notification No. 44/87, dated 19-2-1987 relating to duty-free import against Advance Licence. Duty- free replacement has been allowed in terms of the said Notification.
A doubt has been expressed as to whether exports made by utilising in dragons material from stock may be counted towards discharge of export obligation under the licences and corresponding duty free import by way of replenishment should be allowed. The matter has been examined by the Central Board of Excise and Customs and it is clarified that so long as materials used from stock-whether imported or indigenously procured pending actual importation against Advance Licence correspond to description, quality and technical characteristics as allowed under the licence, the exports effected should be accepted under the DEEC and duty free replenishment should be permitted.
The Above clarification from the Central Board of Excise and Customs is hereby communicated to the Trading Public for their information."
From the aforesaid notice, it is clear that it has nothing to do with the complicance of the conditions of the advance licence. it only provides that any export made either before or at the time of importing the material shall be taken into consideration for the purpose of issuing the duty exemption entitlement certificate. That does not mean that the petitioner is entitled to use the imported goods contrary to the conditions of the Notification No. 44, dated 19- 2-1987 and the conditions of the licence.
21. For the reasons stated above, both the points raised for determination are answered against the petitioner. Accordingly, this petition fails and the same is dismissed.
22. It is made clear that as the petitioner has only challenged the jurisdiction of the customs authorities to seize and proceed in the matter, any opinion expressed in this order shall not be taken as affecting the other contention having a bearing on the merits of the case and the proceeding initiated under the Act shall be decided in accordance with law.