Calcutta High Court
Eastern India Edible Oil ... vs Union Of India (Uoi) And Ors. on 9 June, 2004
Equivalent citations: 2004(4)CHN121, 2004(178)ELT114(CAL)
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This writ application was filed by the Eastern India Edible Oil Manufacturer's Association represented by its secretary. Subsequently, some individual manufacturers filed a separate application for being added as co-petitioners on the allegation that they are members of the petitioner No. 1 and that they have similar grievance as that of the petitioner No. 1 and consequently, they are in the same way affected by the illegal action of the respondents. Those applicants agreed to be bound by the averments made in the writ application. This Court with the consent of the original petitioners allowed their prayer and they were added as co-petitioners.
2. The facts giving rise to filing of the present application may be summarized thus:
a) By virtue of a treaty between India and Nepal, the Government of India, department of revenue, in exercise of power conferred under Section 25 of the Customs Act, 1962, issued a notification in the public interest thereby exempting the vegetable fat imported from Nepal from the whole of the duty of customs to the extent indicated therein.
b) The Government of India, Ministry of Commerce and Industries prescribed the procedure for duty-free import of vanaspati upto 1,00,000 mt. on annual quota basis and further directed that such import should be made only by the Central Warehousing Corporation (C.W.C.).
c) Subsequently by way of issue of further notification, such right was given jointly to the C.W.C. and State Trading Corporation (S.T.C.). Ultimately another notification was issued conferring such right exclusively to the S.T.C.
d) The S.T.C., however, instead of importing the commodities by itself, entered into agreements with various private agents authorizing them to import vanaspati on payment of some amount of money to the S.T.C. by way of "service charge". The S.T.C. by the so-called "import contract" sold the commodities to those agents before actual arrival of those goods in India. In those import contracts, the S.T.C. was described as "seller" and the agents were mentioned as "associate distributor".
e) The Customs Authorities permitted those agents to import those duty-free goods without charging any amount of excise duty as if those were imported by the S.T.C. Those agents after procuring such duty-free goods, according to the petitioners, are doing business of selling vanaspati at a lesser price.
f) The petitioners complain that by virtue of the notifications issued by the Government of India, the S.T.C. alone is entitled to import the duty-free vanaspati from Nepal. According to them, S.T.C. has no right to transfer such authority to the private individuals in lieu of money thereby enabling those persons to import vanaspati to India at 30% lesser price than the one prevailing in the market. The petitioners further complain that the relevant notification issued by the Union of India having permitted the S.T.C. alone to import those duty-free goods, the Customs Authority illegally permitted those private agents of S.T.C. to get the benefit of free importation. The petitioners allege that both the S.T.C. and the Customs Authority are bound to follow the policy decision taken by the Ministry of Revenue and that of Commerce and Industry. Hence this application, for a direction upon those authorities to strictly implement the policy decision of the Government of India.
3. This writ application is opposed by both the S.T.C. and the Customs Authorities by filing two sets of affidavit.
4. In the affidavit-in-opposition filed by the Customs Authority, it has justified its action and its defence may be summarized thus:
S.T.C. selected various buyers/importers from each State and entered into contracts with them along with the Nepalese sellers whereby each of those buyers were allowed a particular quantity/quota from the total annual quota of the S.T.C. and issued them separate registration number. The said procedure was discussed between the Custom Authorities and the S.T.C. and the former agreed to allow the importation by those buyers on behalf of and on account of S.T.C., however, limited to the annual quota fixed. According to the Customs Authority, such procedure did not affect the revenue or the general importation procedure as those have been made on behalf of S.T.C. According to such authority, the exemption of duty, pursuant to the treaty with Nepal, was granted, inter alia, only to the goods viz. vanaspati and not to any personnel and the total quantity of goods fixed under the notification is 1,00,000 mt per annum. It is further asserted that by relying on the said procedure, and after being satisfied that all those importations were done on behalf of S.T.C., the Customs Authority cleared those duty-free goods. Apart from the aforesaid defence, the Customs Authority has also questioned the territorial jurisdiction of this Court to entertain this writ application. The locus standi of the petitioners to maintain the writ application has also been challenged.
5. In its affidavit, the S.T.C. has virtually adopted the stance taken by the Customs Authority. It has been, however, reiterated that this Court has no territorial jurisdiction to entertain this writ application inasmuch as the office of the S.T.C. is situated beyond the territorial limit of this Court and at the same time, the alleged irregularities committed by the Customs Authority have taken place in Bihar and Uttar Pradesh. It is further stated that the petitioners have neither any locus standi nor any cause of action to file this writ application. Various agreements entered into between S.T.C. and the prospective buyers have been annexed to the affidavit and according to it, in the absence of those buyers, this writ application is not at all maintainable.
6. Mr. Kapoor, the learned Additional Solicitor-General of India, appearing on behalf of S.T.C., and Mr. Roy Choudhury, the learned advocate appearing on behalf of the Customs Authority, have at the very outset, taken preliminary objection as regards the territorial jurisdiction of this Court to entertain this application. They have also raised the question of maintainability of this writ application on the ground of absence of necessary parties, namely, the associate distributors with whom S.T.C. had entered into agreements permitting them to import goods on its behalf. They contend that in the absence of those persons, this Court cannot grant relief to the petitioners.
7. Mr. Kapoor, by referring to the averments made in the writ application, contends that this Court should find out from those averments whether any part of the alleged cause of action has arisen within the State of West Bengal. Mr. Kapoor alleges that in the writ petition there is no averment that the Customs Authority cleared any importation through the border of Nepal and West Bengal. Mr. Kapoor submits that the documents disclosed by S.T.C. would rather show that all the transactions were cleared by the Customs Authorities in the State of Bihar. According to Mr. Kapoor, simply because the petitioners are carrying on their business in West Bengal, such fact cannot empower this Court to entertain this writ application for the purpose of scrutinizing the alleged illegality committed by the Customs Authority at the Nepal border in the State of Bihar. Mr. Kapoor submits that for the simple averment in the writ application that those imported goods have been dumped in West Bengal, this Court cannot be vested with the power to decide the cause of action accrued in Bihar. In support of such contention Mr. Kapoor relies on the following decisions of the Supreme Court:
(a) Oil and Natural Gas Commission v. Utpal Kumar Basu and Ors., .
(b) Kusum Ingots and Alloys Ltd. v. Union of India (UOI) and Anr. (decided by Supreme Court on 28.04.2004 in Civil Appeal No. 9159 of 2003 -unreported.)
8. Mr. Sengupta, the learned counsel appearing on behalf of the petitioners has vehemently opposed the aforesaid preliminary objections raised on behalf of the respondents. As regards the question of want of territorial jurisdiction, Mr. Sengupta contends, that the grievance of the petitioners in this writ application, precisely, is that the Customs Authority and the S.T.C. , both "states", within the meaning of Article 12 of the Constitution, have violated the law of the land and such violation has affected the fundamental right of the petitioners to have equality before law, the moment the duty-free vanaspati illegally cleared by the customs authority in favour of the so-called associate distributors of the S.T.C. had entered the market of the West Bengal because those agents are favoured with the self-same commodities at 30% lesser price, whereas the petitioners are obliged to purchase the vanaspati at a higher price. Mr. Sengupta, thus, contends that a part of cause of action has definitely arisen within the State of West Bengal. Mr. Sengupta in this connection draws attention of this Court to the annexures attached to the affidavit filed by the S.T.C. wherefrom it will appear that the agreements between the S.T.C. and their agents were executed in Kolkata. Mr. Sengupta in this connection submits that although at the initial stage, the jurisdiction of a Court is determined on the basis of the averments made in the plaint alone and not on the basis of the defence, but at the time of final hearing, if it appears from the documents of the defendant that a part of cause of action has arisen within the jurisdiction of the Court, such fact can be taken into consideration notwithstanding the fact that the plaintiff did not draw attention of the Court to such fact.
9. On the question of maintainability of the writ application for the absence of the agents of the S.T.C., Mr. Sengupta contends that his clients are impeaching the illegal activities of Customs Authority in connivance with the S.T.C. on the ground that those are violative of Article 14 of the Constitution. In such a situation, Mr. Sengupta contends, those agents of S.T.C. can, at the most, be said to be proper parties. But there being no specific relief claimed against those persons, this writ application is maintainable even in their absence. Mr. Sengupta submits that his clients' prayer is that a direction should be given upon the Custom Authorities not to give the benefit of the notification issued pursuant to the treaty between India and Nepal unless the formalities mentioned in the notification are strictly complied with. In other words, as per such notification, the Customs Authority should give benefit of duty-free importation only to S.T.C. but not to its so-called associate distributors. Mr. Sengupta, thus, asserts that the preliminary objections raised by the respondents should be overruled and the writ application should be heard on merit. In support of such contentions, Mr. Sengupta relies upon the following decisions of the Supreme Court:
(a) General Manager, South Central Railway and Anr. v. A.V.R. Siddhanti and Ors., .
(b) A. Janardhana v. Union of India and Ors., .
(c) State of H.P. v. Kailash Chand Mahajan and Ors., reported in 1992 Supp. (2) SCC 351.
10. Therefore, the first question that falls for determination is whether this Court has territorial jurisdiction to entertain this writ application.
11. The law relating to the territorial jurisdiction of a High Court in relation to an application under Article 226 of the Constitution of India is now well-settled. A High Court can issue appropriate order in exercise of power conferred under the aforesaid Article upon any person or authority situated within the territories in relation to which such Court exercises jurisdiction, if such person or authority interferes with the legal or fundamental right of the petitioner. Even if such person or authority is not stationed within such territorial limit, the High Court can exercise its jurisdiction under the aforesaid Article if the cause of action for filing such application arises wholly, or in part, within its territorial jurisdiction.
12. In the present case, except the respondent Nos. 2 and 6, namely, the Commissioner of Customs, West Bengal and the Director of Revenue and Intelligence, respectively, all other respondents are situated beyond the territorial limit of this Court. Even in the writ application, the petitioners have not alleged any illegal action or inaction on the part of those two respondents, which, according to the petitioners, have infringed their legal or fundamental right. Thus, the petitioners can maintain this writ application before this Court only if they can show that the cause of action for filing this writ application has arisen either wholly, or in part, within the State of West Bengal.
13. "What is a cause of action" has been appropriately discussed by S.B. Sinha, J. in the case of Kusum Ingots and Alloys Limited v. Union of India and Anr., an unreported decision of Supreme Court, decided on 28.04.2004 in Civil Appeal No. 9159 of 2003. In the said case, the question was whether the seat of the Parliament or the legislature of a State would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India. In the aforesaid context, His Lordship in paragraph 6 of the judgment made the following observations:
"Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the Court. Negatively put, it would mean everything which, if not proved, gives the defendant an immediate right to judgement, would be part of cause of action....."
Ultimately His Lordship in paragraph 21 of the said judgement arrived at the following conclusion:
"A parliamentary legislation which receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the Constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions the Act or some them which were implemented shall give rise to civil or evil consequences to the petitioner. A Writ Court, it is well-settled would not determine a question in vacuum."
14. If we apply the aforesaid principle to the fact of the present case, as soon as the Customs Authority illegally cleared the commodities in the Bihar border of Nepal, although the illegality complained of is accomplished, such impropriety committed by the customs officers at Bihar did not give rise to any cause of action for filing any writ application in favour of the petitioners so long such act did not invade any of the rights of the petitioners. But the moment those duty-free goods intruded into the zone of the business of the petitioners, such intrusion gave rise to "evil consequence" to the petitioners causing infringement of their rights guaranteed by Article 14 of the Constitution of India and thus, a cause of action accrued in favour of the petitioners and such cause of action has arisen within the State of West Bengal, the place where the petitioners are carrying on their business notwithstanding the fact the illegalities were really committed by the customs officers at Bihar. As pointed out by the Apex Court in the case of Kusum Ingots and Alloys Limited (supra), although the petitioner therein wanted to challenge an enactment passed by the Parliament, they were not permitted to file the writ application in Delhi High Court as the impugned enactment had an "evil consequence" upon the petitioner at the place of their business at Bhopal notwithstanding the fact that the enactment was passed by the Parliament situated in New Delhi.
15. I now propose to deal with the two decisions cited by Mr. Kapoor in this regard.
16. Before dealing with those cases, we must not lose sight of the fact that while considering a decision as a precedent, each case is to be considered on its own fact. A slight difference in fact may make a lot of difference (see Regional Manager and Anr. v. Pawan Kumar Dubey ).
17. In the case of Oil and Natural Gas Commission v. Utpal Kumar Basu and Ors., (supra), the Supreme Court was dealing with a case where the petitioner company, having its registered office in Kolkata, had read in Kolkata based newspaper the advertisement of O.N.G.C. inviting tenders at Delhi for works to be executed in Gujarat and in response, the petitioner sent its tender to the Delhi address of the O.N.G.C. from Kolkata and also made representation from Kolkata against non-consideration of its offer on the ground of its ineligibility because of failure to fulfil the experience criterion. Ultimately, he filed a writ application in the Calcutta High Court. In such a situation, the Supreme Court was of the view that the advertisement itself having mentioned that the tender should be submitted at New Delhi and that those should be scrutinized there and that the final decision would also be taken at New Delhi, merely because the petitioner read the advertisement at Kolkata and submitted the offer from Kolkata and made representations from Kolkata, such facts would not constitute "facts forming an integral part of cause of action." Therefore, in the said case, the petitioner challenged rejection of his tender which was submitted at Delhi, considered at Delhi and the final rejection order was also taken at Delhi. Thus, it was rightly pointed out that no part of cause of action had arisen at Kolkata merely because the registered office of the petitioners was in Kolkata and that there was exchange of correspondence from Kolkata. In the case before us, although the goods were illegally cleared in Bihar by the Customs Authority, the moment those commodities arrived in the place of business of the petitioners, such entry had an adverse consequence and thus cause of action for filing the present writ application complaining illegal entry of those goods arose. Therefore, the said decision cannot have any application to the fact of the present case.
18. The other decision namely Kusum Ingots and Alloys Ltd. (supra) has already been discussed and I am of the view that the principles laid down therein rather support the petitioners' contention that the cause of action has arisen within the territorial limit of this Court.
19. I, thus, find that the cause of action of filing the present writ application has accrued within the territorial limit of this Court and as such, this Court has jurisdiction to entertain this writ application.
20. The next question is whether this application should fail for want of necessary parties.
21. I have already pointed out that the writ petitioners have prayed for direction upon the Customs Authority not to allow any other person than S.T.C. to avail the benefit of the notification granting exemption issued by the Union of India pursuant to the treaty between Nepal and India and their specific case is that the so-called associate distributors of the S.T.C. cannot get such benefits. In my view, Mr. Sengupta was quite justified in contending that the petitioners having challenged the misinterpretation of the instructions issued by the Union of India at the instance of Customs Authority and the S.T.C., those two authorities are the real necessary parties to this writ application and in their absence no effective relief can be given to the petitioners. Moreover, once some persons claim to be the agent of another, those agents are not necessary parties in a proceeding adjudicating the right of their principal. Since the agents cannot have any better right than that of their principal, the presence of the principal sufficiently safeguards the interest of its agents. I, thus, find that this writ application is not liable to be dismissed for not impleading the associate agents of the S.T.C.
22. I now propose to enter into the merit of the case and to investigate whether the notifications and guidelines issued by the Union of India authorise the S.T.C. to appoint the so-called agents for the purpose of importing the goods on its behalf; in other words, whether the effect of the importation by the agents should be construed to be import by the S.T.C. itself.
23. At this juncture, it will be profitable to refer to the definition of "Importer" given in Section 2(26) of the Customs Act, some of the clauses of the import agreement, and the amended notification issued by the Government of India appointing the S.T.C. as the sole import agent in accordance with the treaty between India and Nepal. Those are quoted below;
"Section 2(26)--'importer', in relation to any goods at any time between their importation and the time when they are cleared for home consumption, includes any owner or the person holding himself out to be the importer;"
"Import-agreement Whereas associate distributor having agreed for a quantity of--mt imported vanaspati for distribution in various states falling in Northern/ Eastern/ Western/Southern Zone has agreed to pay Rs.--pmt towards S.T.C.'s net service charges and abide by the following terms and conditions:
1) _____________
2) ____________
3) To pay S.T.C.'s net service charge @ Rs. ---------- pmt in advance for the quantities awarded for import and distribution in States falling in Northern/ Eastern/ Western/ Southern Zone.
4) ____________
5) To arrange payment to Nepalese exporter directly A/C The S.T.C. of India Ltd. Alternatively, S.T.C. will make payment to Nepalese Exporter after receipt of advance payment from associate distributor.
6)____________
7) S.T.C. will sell the goods (vanaspati) to associate distributor in course of import. For the purpose, document of title i.e. RRS/GRs will be endorsed in favour of associate distributor before the goods cross custom frontier of India. The associate distributor will arrange clearance of cargo through the designated customs after paying all relevant and statutory duties, levies and taxes. S.T.C. will not be responsible for payment of customs duty, levy and taxes, claims expenses, if any, whatsoever in the operation. S.T.C. will issue sale invoice showing "Sale during the course of import" ex-Indian border point duly PPA cleared as per Indian laws. The sale invoice will indicate value of goods and the S.T.C.'s service margin.
8)______________ .............................................................................................................................
.............................................................................................................................
16)_____________________________________"
"PUBLIC NOTICE NO.
30(RE-2003) / 2002-2007 NEW DELHI: 23-10-2003 Subject: Procedure for import for certain items under the Indo-Nepal Treaty of Trade signed on 2.3.2003--amendment therein.
In exercise of powers conferred under paragraph 24 of the Export and Import Policy 2002-2007, as notified in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii) vide S.O. No. 349-E dated 31.3.2002, as amended from time to time, the Director-General of Foreign Trade hereby notifies the following amendments in Public Notice No. 9/2002-07 dated 30.04.2002 and Public Notice No. 12/2002-07 dated 6.6.2003 prescribing the procedure for import of certain items under the Indo-Nepal Treaty of Trade signed on 2.3.2002:
a. Para 2 in Public Notice No. 9/2002-2007 dated 30.04.2002 shall stand deleted.
b. State Trading Corporation (S.T.C.) shall be the sole agency to make imports of vegetable fats (vanaspati) upto the indicated quantity of annual quota basis. Other conditions of the Public Notice No.9/2002-07 dated 30.04.2002 remain unchanged. This issue in the public interest.
(L.M. MANSINGH) DIRECTOR - GENERAL OF FOREIGN TRADE.
Copy to all concerned By order etc."
24. From the import contract, mentioned above, it is clear that the associate distributor is required to pay the price of the goods to the Nepalese exporter either direct or through the S.T.C. and also the service charge payable Jo the S.T.C. before the goods cross the Indian border. The S.T.C. has on the other hand agreed to complete the sale transaction before the goods touch the Indian border by issuing appropriate sale certificate. The liability to pay customs duty etc. has been cast upon the associate distributor and the S.T.C. has made it clear that it has no responsibility in the matter of complying with the customs formality. Thus, by the time the goods pass the border, the associate distributor is required to pay not only the price of the goods to the Nepalese exporter but also the service charge to the S.T.C. and is armed with the sale certificate issued by the S.T.C. In other words, the associate distributor, at that time is possessed of all the ingredients of ownership. If we now look at the definition of "importer" given in the Customs Act, it will be apparent that the associate distributors fulfil the requirements of the said definition and the S.T.C. cannot come within the purview of the same as it is neither the owner of the goods nor does it hold itself out as importer, having specifically declared that it would not take the responsibility of complying with the formalities required under-the law relating to customs. In the bill of entry presented before the Customs Authority, the name of the associate distributor has been shown as that of the importer, although he has also been described as "associate distributor of S.T.C."; but the code number of such importer appears to be that of the distributor himself and not of the S.T.C.
25. From the aforesaid materials it is clear that the S.T.C. had neither held itself as importer nor was the S.T.C. owner of the goods at the time of importation and as such, the Customs Authority illegally cleared those goods without imposing any duty, as if, the S.T.C. was the importer. Merely because the owner of the goods, for the purpose of illegally getting the benefit of relaxation of customs duty, described himself as the "associate distributor of the S.T.C.", the Customs Authority could not grant such benefit to the owner of the goods notwithstanding the fact that the S.T.C. is not the "importer" in accordance with law.
26. Mr. Kapoor in this connection has placed strong reliance upon the following decisions of the Supreme Court in support of his contention that the provisions contained in Section 2(26) of the Customs Act should be interpreted in a reasonable manner so as to achieve the purpose of the statute:
a) Bajaj Tempo Ltd., Bombay v. Commissioner of Income Tax, Bombay City-III, Bombay, .
b) Meera Gupta (Smt.) v. State of West Bengal and Ors., .
c) Northern Plastics Limited v. Hindustan Photo Films Mfg. Co. Ltd. & Ors., .
d) Indian Handicrafts Emporium and Ors. v. Union of India and Ors., (.
27. The principles laid down in those decisions are all well-settled. All that has been held in those decisions is that while interpreting a particular provision of a statute, the Court should give a purposive construction so as to give full effect to the object and purport of the statute and that the entire statute must be read as a whole. The object of the notification was to make the S.T.C. the sole import agent for public interest and not to allow private individuals the benefit of duty-free commodities and with the aid of those goods, to make unfair gain in the business by outrivaling other businessmen who collect the selfsame commodities from the market at a higher price. Thus, while interpreting the aforesaid notification, the Court should see that the S.T.C. cannot misuse its authority by indiscriminately selling such benefit to others by violating the provisions of the Customs Act. I, thus, find that those decisions rather support the contentions of the petitioners.
28. As regards the objection of the respondents on the question of locus standi of the petitioners, I am of the view that although initially there was some scope of argument that an association may not be aggrieved by the illegality of the respondents by which its members have been individually affected, the moment individual members have been added as co-petitioners, such-question is now immaterial. The individual members are definitely prejudiced by the unfair treatment of the respondents and in the process, those members are deprived of the protection guaranteed by Article 14 of the Constitution of India. Therefore, they can maintain this writ application praying for a direction upon the respondents to comply with the obligations arising out of the notification.
29. In the case of National Textile Corp. Ltd. and Ors. v. Haribox Swalram and Ors., , the question was whether liabilities in respect of a taken-over textile undertakings could be enforced against the Central Government through a writ of mandamus at the instance of the persons who entered into contact with the said undertakings for supply of material and making payment, According to the case set up by the writ petitioners, money was paid by them to the textile mills before the appointed day but they had failed to supply the cloth. In such a situation, the Supreme Court was of the view that after receipt of money, the textile mills having incurred a liability, were under an obligation to supply the cloth to the writ petitioners, but such liability having been incurred by the textile mills before the date of taking over, the same could not be enforced against the Central Government or the custodian. Thus, the said case was an instance of pure and simple business contract and therefore the writ application was not maintainable. I fail to understand how the said decision can be of any help to the respondents in contending that the petitioners have no right to maintain the present writ application.
30. As a last resort, the learned Counsel for the respondents tried to impress upon this Court that this writ application should be dismissed on the ground of delay. The notification, conferring absolute right of import upon S.T.C. was published in October, 2003 and the writ application was filed on March 3, 2004. I have already indicated that the cause of action for filing this application really accrued long thereafter when the S.T.C. misused such benefit, the Customs Authority approved such misdeed and consequently, such duty-free commodities, illegally cleared, were dumped in the zone of business of the petitioners. Thus, there was no such delay in moving this writ application. Apart from the aforesaid fact, when infringement of fundamental right has been alleged, delay is inconsequential. Once it is detected that the Customs Authority had illegally allowed some private parties to import commodities without payment of customs duty at the instance of S.T.C. thereby affecting fundamental rights of others, such writ application cannot be dismissed on the ground of delay, even if there be any, because there can be no loss of fundamental right on the ground of non-exercise of it. (See the case of Kerala Education Bill, reported in AIR 1958 SC 956 at 981). In the case of Amalgamated Coalfields Ltd. v. Janpada Sabha, Chhindara, , the Supreme Court observed that if a tax imposed is held to be ultra vires, the petition under Article 226 of the Constitution of India cannot be refused on the ground that the petitioner had been paying the tax without objection for years, because, such ultra vires tax will encroach upon the fundamental right guaranteed under Article 19(1)(f)(g) of the Constitution of India. Similarly, in my view, simply because the Customs Authorities in the past, for few months, had illegally permitted evasion of duty in favour of somebody by infringing the fundamental rights of the petitioners, they should not be permitted to go on with such illegality, just because, the petitioners did not file this application a few months earlier. In the case of Basheshar Nath v. C.I.T., , it has been specifically held that there cannot be any waiver of fundamental right conferred under Article 14 of the Constitution.
31. I thus find that the writ petitioners have been able to prove beyond doubt infringement of Article 14 of the Constitution of India at the instance of Customs Authority and the S.T.C.
32. Accordingly, a writ in the nature of mandamus do issue commanding the respondents, their agents and servants to allow duty-free import of vanaspati in terms of the Customs Notification No. 40/2002 -Customs dated 12.04.2002 read with Public Notice No. 9/2002-07 dated April 30, 2004, as amended by notices dated 6.6.2003 and 23.10.2003, only in favour of S.T.C. but not its agents or so-called associate distributors. The Customs Authority is further directed to impose 30% duty on the vanaspati imported from Nepal by the various associate distributors from the quota of S.T.C. as per agreement with the S.T.C. and to realise such duty immediately from the S.T.C. who connived with their so-called associate distributors in evading the duty. The S.T.C. being instrumental to the evasion of the duty and having derived benefit out of it by way of service charge, it is its primary duty to compensate the national loss. The S. T. C., will be, however, entitled to realise such amount from its associate distributors in accordance with law.
33. No costs.
Later on.
34. After this order is passed, the learned advocate appearing for S. T. C., prays stay of operation of this order.
35. In view of what have been stated above, I find no reason to stay my order. The prayer for stay is refused.
36. If applied for, let xerox certified copy of this order be given parties by Friday next.
Bhaskar Bhattacharya, J.