Bombay High Court
Motilal Gupta Karta Of Kanta ... vs Union Of India And Others on 22 April, 1987
Equivalent citations: 1988(36)ELT44(BOM)
Author: S.P. Bharucha
Bench: S.P. Bharucha
ORDER Bharucha, J.
1. The appellant is the Karta of a joint Hindu family which carries on business in the name of Kanta International. This entity obtained an advance licence to which the provisos of a notification dated 5th April, 1982 issued under Section 25(1) of the Customs Act, 1962, applies. One of the conditions of that notifications is that the exempted materials covered thereunder shall not be sold or transferred to any person or utilised or permitted to be utilised or disposed of in any manner without the previous permission of a committee therein mentioned. The entity was found to have violated this condition. Its explanation to a show-cause notice was found unsatisfactory. The material was confiscated and a penalty imposed. The appellant filed the writ petition challenging, the confiscation and the penalty. The learned single judge rejected the petition on the ground that an equally efficacious remedy by way of appeal was available. The learned judge noted the argument that the appeal would not be entertained without the deposit of the amount of the penalty. He stated that he had been inclined to permit the appellant to furnish a bank guarantee instead of having to make the deposit but the appellant was unwilling to give the bank guarantee. The learned judge also noted that, in his view, the argument on constitutionality had no substance. The appeal is on board for admission.
2. It is strange that the notification is challenged as conferring arbitrary powers upon the committee referred to therein but no copy of the notification is annexed to the petition. It is true that extracts therefrom have been set out in the petition but that is not, plainly, sufficient. However, even having regard to the extracts, it is reasonably clear that the committee is not invested with unguided and unfettered powers. A perusal of what is set out in the petition indicates the parameters within which the committee must function in deciding whether or not permission should be given to the licence-holder. It appears that the point of constitutionality has been taken only in an attempt to prevent this court from relegating the appellant to an appeal.
3. It was stated that pursuant to representations that had been made, the notification had been amended so that the previous permission of the committee was not required when the export obligation imposed upon the licence-holder had been fulfilled in advance. It was submitted that the notification, as amended, was the applicable law at the time of the adjudication. This is an argument upon which we will not comment. It will be open to the appellant to advance it in the appeal.
4. It was also submitted that the Tribunal which would hear the appeal had no power to order the return of the confiscated material pending the disposal of the appeal. Assuming that to be so, it is hardly conceiveable, in the circumstances, that the Tribunal would make such an order even if it had such powers.
5. There is no reason, therefore, why the learned Single Judge's order should not be upheld.
6. The appeal is dismissed.