Bombay High Court
Chokhani Pharma Vet vs Union Of India & Ors on 26 July, 2018
Equivalent citations: AIRONLINE 2018 BOM 943
Author: S.C. Dharmadhikari
Bench: S.C. Dharmadhikari, Prakash D. Naik
jud-wp-1096-1999 with chsw-64-1999
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1096 OF 1999
M/s.Dilipkumar & Company
a Partnership Firm duly registered
under the Indian Partnership Act,
1932 and having its office at
455, Kalbadevi Road, Chikhal House,
1st Floor, Mumbai - 400 002. ...Petitioner
V/s.
1. Union of India
(through the Joint Secretary
Ministry of Law, Justice and
Company Affairs, Aaykar Bhavan
M.K. Road, Churchgate,
Mumbai-400 020
2. The Additional Director
General of Foreign Trade,
having office at Udyog
Bhavan, New Delhi.
3. The Commissioner of Customs
(Export), Group VII,
having office at New Custom
House, Ballard Estate,
Mumbai- 400 038.
4. The Assistant Commissioner
of Customs, Group-VII,
having his office at Annexe
Building, New Custom House,
Ballard Estate, Mumbai-400 036.
5. The Joint Director General of
Foreign Trade,
Government of India, Ministry
of Commerce Directorate
General of Foreign Trade
N.S. Kamble page 1 of 23
jud-wp-1096-1999 with chsw-64-1999
Preventive & Intelligence Section
Udyog Bhavan, New Delhi-110014. ...Respondents
WITH
CHAMBER SUMMONS NO.64 OF 1999
IN
WRIT PETITION NO.1286 OF 1998
WITH
NOTICE OF MOTION NO.217 OF 1999
WITH
WRIT PETITION NO.1286 OF 1998
Chokhani Pharma Vet ...Petitioner
V/s.
Union of India & Ors. ...Respondents
----
Mr.V. Sridharan, Senior Counsel a/w Mr.Prakash Shah, Mr.Jas
Sanghvi i/b PDS Legal for the Petitioner.
Mr.Pradeep S. Jetly a/w Smt. Shehnaz V. Bharucha for the
Respondent Nos.1 and 2.
----
CORAM : S.C. DHARMADHIKARI &
PRAKASH D. NAIK, JJ.
RESERVED ON :12th MARCH 2018
PRONOUNCED ON : 26th JULY 2018
COMMON JUDGMENT :(Per S.C. Dharmadhikari,J)
1. These two petitions under Article 226 of the Constitution of India are by a partnership firm and involve common questions of fact and law. They are disposed of by this common judgment.
2. It is agreed by both the sides that we can take the facts N.S. Kamble page 2 of 23 jud-wp-1096-1999 with chsw-64-1999 from Writ Petition No.1096 of 1999 which suffices for the purpose of our judgment.
3. Prior to 1st April 1997 and in terms of the Standard Input Output Norms ("SION" for short) published by the Director General of Foreign Trade, 227 kgs of Vitamin Mixes was permitted to be imported against export of one Metric Tonne of Fish products. The exporter in this case Suryo Udyog Limited(Exporter), exported Fish product prior to March 1997. This export was to take place from 17th October 1996 to 19th November 1996 and the exporter applied for issuance of Quantity Based Advance Licence under Foreign Trade Policy 1997-2002 (for short "FTP"). The Office of the Director General of Foreign Trade (for short "DGFT") issued deficiency letter to the exporter on 8 th November 1996 seeking certain declarations. On 4th February 1997 the DGFT claimed that the exporter did not reply and the case was closed by the DGFT. On 1st April 1997, the SION published by the DGFT were revised and total quantity of 0.227 metric tonnes of the goods allowed to be imported was bifurcated into 0.027 Metric Tonnes for Vitamin Mixes and 0.200 Metric Tonnes for Mineral Mixes. In other words, against export of one Metric Tonne of Fish products 27 kg of Vitamin Mixes were allowed as against 0.227 of Vitamin Mix allowed before the N.S. Kamble page 3 of 23 jud-wp-1096-1999 with chsw-64-1999 revised norms. In other words the norms were revised and there was no bifurcation.
4. On 5th April 1997 (Exhibit-E page Nos.63-72), the exporter, inter alia, made detailed submissions to the DGFT in the context of issue of Advance Licences for export of shrimps and inter alia, requested the DGFT to issue Advance Licenses for the said exports prior to 1st April 1997 based on the (old SION) in terms of paragraph 66 of the Export Import Policy. This request was realterated by a letter dated 25 th April 1997 (Exhibit-E-1 page Nos.73 to 78) contending that the Advance Licence to be issued in relation to the exports effected prior to 31 st March 1997 in terms of paragraph 66 of the Export Import Policy and Input Output Value Addition Norms as in force at the time of export already, be considered. This plea was reiterated on 14 th May 1997. The exporter made claims though revised application to the respondents for issuance of Quantity Based Advance Licence for exports effected before 31st March 1997. This revised application is claimed to be dated 16th October 1997. On 27th October 1997 (Exhibit-A page Nos.32-50), the DGFT issued Quantity Based Advance License to the exporter. The licence specified 31,780 kgs of vitamin mixes against export of 1,40,000/- kgs fish products. This corresponded to SION N.S. Kamble page 4 of 23 jud-wp-1096-1999 with chsw-64-1999 prevailing prior to 01st April 1997. It did not correspond to SION prevailing after this date. The licence was registered in Mumbai Port.
5. On 27th November 1997 the office of the DGFT issued Export Obligation Discharge Certificate to the exporter in terms of Circular No.24 of 1996 dated 19th April 1996. A copy of this certificate is annexed as (Exhibit-B on page Nos.51 to 52). On 27 th November 1997 this licence was amended, whereby import quantity was reduced to 15,769.61 and export quantity was reduced to 69,469.660. Further, the licence was made transferable in terms of paragraph 727 of Handbook of Procedures 1997-2000. Licence is transferable only if the export obligation has been fulfilled. On 28 th November 1997 the exporter transferred this license to M/s.Praful G. Kamdar and Sons, perhaps with intimation to DGFT. On 30 th December 1997 M/s. Praful G. Kamdar and Sons transferred the licence to the petitioner and the petitioner presumed that intimation was given to DGFT.
6. On 12th February 1998 the exporters submitted the licence under consideration for transferability and further amendment of the import items. The exporter justified the issuance N.S. Kamble page 5 of 23 jud-wp-1096-1999 with chsw-64-1999 of licence based on the norms prevailing at the time of export by referring to paragraph 66 of the Export Import Policy for the year 1996-1997. This was done on 14 th February 1998 (Exhibit-E-4 page Nos.86-87). On 24th February 1998 the Director General of Foreign Trade, with the approval of the Additional Director General of Foreign Trade, allowed amendment in licence No.0013882 by way of inclusion of additional items of imports. On 25 th May 1998 subsequent to the transfer of the licence, the DGFT issued impugned instructions restricting the quantity of Vitamin Mixes to the extent of 27 kg against export of one Metric Tone of Fish products until further orders. On 28th September 1998 by (Exhibit-C-1 to C-3 page Nos.53-58) the petitioner had imported two consignments of 750 kgs of Vitamin Mixes which was allowed to be cleared by debiting the said license. On 23 rd November 1998 (Exhibit-C-4 page No.59) the petitioner imported 500 kgs of Vitamin Mixes and filed Bill of Entry seeking clearance against the said licence. Since, the respondent No.4 was not allowing clearance relying on the instructions dated 25th May 1998, the petitioner cleared only 375 kgs which was debited in the said licence and the balance was transferred to bond. The petitioner has not imported any goods in excess of revised norms. Subsequently, the respondent No.2 initiated proceedings against the exporter but it represented and N.S. Kamble page 6 of 23 jud-wp-1096-1999 with chsw-64-1999 requested that no action be taken.
7. Thereafter, on 15th June 1999 (Exhibit-C-5 Page Nos.60- A to 60-H) show cause notice was issued to the exporter, M/s.Praful Kamdar and Sons and the petitioner calling upon them to show cause as to why the licence should not be cancelled and also penalty should not be imposed for violation of Rule 10 of the Foreign Trade (FTR) Rules and Section 11(2) of the Foreign Trade (Development and Regulation) Act, 1992. On 28 th June 1999 petitioner filed reply to the show cause notice.
8. By the impugned order dated 30th June 1999 the respondent No.5 cancelled the licence in terms of Section 9(4) of the FTDR Act and Rule 10(3) of the FTR Rules. Further, the respondent No.5 imposed penalty of Rs.2.50 crores each on both the Transferees.
9. This Writ Petition under Article 226 of the Constitution of India therefore seeks to challenge all these actions including the impugned order and prays for issuance of writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction ordering and directing the respondents, their officers N.S. Kamble page 7 of 23 jud-wp-1096-1999 with chsw-64-1999 subordinate, servants and agents to allow the petitioners to import and clear full and/or balance quantity of 13894 Vitamin Mixes as endorsed/described on the said licence and the validity period for utilization of the licence be extended for that purpose. The petitioners have impleaded to this writ petition the Union of India, the Additional Director General of Foreign Trade, the Commissioner of Customs (Export), the Assistant Commissioner of Customs and by amendment the Joint Director General of Foreign Trade as respondents.
10. It is claimed that the exporter had challenged the adjudication proceedings before the High Court of Orissa at Cuttak. Then reliance is placed on the detailed correspondence between the exporter and office of DGFT, New Delhi. It was urged therein that the exporter was representing in the matter to the DGFT Headquarters at New Delhi. Some reasons were assigned in support of the interpretation of the documents by the exporter. It was inter alia contended by the exporter that advance license be issued based on the norms prevailing at the time of export of goods having regard to paragraph 66 of the policy. It is claimed that the DGFT issued advance license in question in or around 27th November 1997 by accepting the interpretation/representation of the exporter.
N.S. Kamble page 8 of 23 jud-wp-1096-1999 with chsw-64-1999
11. After this Writ Petition was filed, an affidavit has been filed by the Commissioner of Customs and it is stated that the main allegations in the Writ Petition are directed against the DGFT, Additional DGFT and the Joint DGFT, as far as the customs are concerned the facts as narrated above are more or less admitted but the stand is that based on the circular and revised policy the customs have dealt with these imports. This affidavit is filed on 25 th June 1999. There is an affidavit in reply filed on 22 nd January 2015 and in that affidavit it is asserted by the respondent Nos.1 and 2 that the firm was required to export 1,40,000 kgs of Headless Shrimps of species Black Tiger/Penaeus Monodon/and White Shrimps/Penaeus indicus for FOB value of US$ 11,98,000/- to GCA countries. It is then stated that the DGFT was justified in issuing deficiency letters. It is also claimed that there were amendments to the licences but the DGFT justified the issuance of show cause notice and the penalty. It says that the action was taken to protect the interest and loss of Revenue to the Government of India and the petitioner has filed this Writ Petition at the fag end of the validity of the subject authorization.
12. It is stated in paragraph Nos.12,13,15 and 16 as under:-
N.S. Kamble page 9 of 23 jud-wp-1096-1999 with chsw-64-1999 "12. With reference to para 12(a) of the petition, I say that the subject authorization was issued and subsequently made transferable on 27.11.1997 vide letter No.CTC/23/000124/52/AM'97/QBAL dated 27.11.1997, the para 2 of the same says as follows:-
"However, the redemption of LUT shall not preclude the customs authority from taking action against the licence (authorization) holder for any misrepresentation, misdeclration and default detected subsequently," and accordingly the defect/default detected subsequently has been rectified by the authority concerned, which appears to be a correct action taken by the authority concerned.
13. With reference to para 12(b) of the petition, I say that the subject authorization was issued during the policy period of 27.10.1997 when the revised input/output norms for the subject export product have come into force and accordingly the said authorization should have been issued and made transferable as per the revised input output norms and it appears that the said letter of Additional Director General of Foreign Trade, New Delhi dated 25.05.1998 was issued to Customs authorities to restrict the entitlement and refer the matter to Director General of Foreign Trade, New Delhi for further action.
15. With reference to para 12(d) to (f) of the petition, I say that the subject letter dated 25.05.1998, issued by N.S. Kamble page 10 of 23 jud-wp-1096-1999 with chsw-64-1999 respondent No.2 was not to withheld any clearance of goods mentioned in the subject authorization but to restrict the quantity as per revised input output norms.
16. With reference to para 14 to 22 of the petition, I repeat reiterate and confirm incomplete what is stated in the foregoing para and deny all that is contrary to what is stated by me. The action taken by the respondent no.2 is only to protect the interest of the country and to stop drainage of valuable govt. revenue and foreign exchange. The licencee M/s.Surya Udyog Ltd., A/68, Sahid Nagar, Bhubaneswar have filed a writ petition before the Hon'ble Cuttack High Court on the issue of Show cause notice dated 14th/15th June, 1999, where the subject matter is this particular advance licence, vide O.I.C. No.7612 of 1999, which is pending before the Hon'ble Cuttack High Court. The Petitioner could have preferred appeal before the Additional Director General of Foreign Trade, New Delhi (Appellate Authority), as per Section 15 of the Foreign Trade Development Regulation Act, 1992."
13. On these materials, we have heard the learned counsel appearing for the parties and with their assistance we have perused the Writ Petitions, the affidavits placed on record and their exhibits. We have also perused the relevant statutory provisions and terms and conditions of the policy.
N.S. Kamble page 11 of 23 jud-wp-1096-1999 with chsw-64-1999
14. In Writ Petition No.1868 of 1998, which is the prior petition and as stated above the facts being identical except the details of the licences etc, affidavits and additional affidavits have been filed by the parties. Suffice to say that in this writ petition two Notice of Motions were taken out seeking stay of the order dated 30th June 1999. The earlier Motion was to allow the petitioners, by staying operation of the letter dated 25 th May 1998, import and clearance of full quantities of Vitamin Mixes as endorsed on the license. That writ petition was also amended so as to challenge similar impugned order and in that there was a prior Notice of Motion seeking to restrain the authorities from passing any orders in furtherance of the show cause notice.
15. However, it is evident that the papers and proceedings in this petition, namely, Writ Petition No.1286 of 1998 were not traceable and after report to that effect to the registry there was a reconstruction of the record and the record was reconstructed, which has been admitted to be accurate by both sides. We must also refer to some orders which were passed after filing of Writ Petition No.1096 of 1999 in which inter alia Rule was issued on this petition on 9th August 1999. This petition was to be heard along with Writ Petition No.1286 of 1998. The statement made by the Advocates for N.S. Kamble page 12 of 23 jud-wp-1096-1999 with chsw-64-1999 the respondents on 26th July 1999 was directed to be continued till 04th October 1999. From the record, it appears that the said statement has been continued. That statement was that status-quo will be maintained as regards the impugned order dated 30 th June 1999 issued against the petitioners. Thus, the Status-quo order continues till date.
16. Mr.Sridharan, learned Senior Counsel appearing for the petitioners submitted that though cancellation of the licences cannot be made retrospectively but the petitioners are not challenging the cancellation of the impugned license No.0013883 dated 27 th October 1997 after a lapse of long duration.
17. However, Mr.Sridharan submits that the petitioner had undertaken only part import, namely, 1,875 kgs out of total entitlement of 13,894 kgs., of Vitamin Mixes against the impugned licence which was issued based on norms prevailing prior to 1 st April 1997. The petitioners are not interested in importing balance quantity of entitlement under the licence since such import will be of no use. The same has lost its relevance and the imported goods will fetch no market/customer due to passage of time. Mr.Sridharan submitted that the petitioners have undertaken import of vitamin N.S. Kamble page 13 of 23 jud-wp-1096-1999 with chsw-64-1999 mixes of 1,875 kgs vide three Bills of Entries of September 1998 and November 1998, duty free against the impugned licence. These imports were/are well within reduced entitlement of the quantity as per the revised norms published by the DGFT which are effective from 1st April 1997. These imports were not disputed by the Customs Department at any point of time. The goods were allowed to be cleared duty free, without any objection. However, the Custom Department had disputed part quantity of one consignment of Vitamin Mix of 125 kgs imported vide Bill of Entry No.10597 dated 23rd November 1998, even though this quantity was well within reduced quantity norms and issued on 01 st April 1997. The petitioner obtained clearance of this consignment covered by the said Bill of Entry on payment of applicable custom duties without availing benefit of the Advance licence. The petitioner submits that there were no proceedings pending with the Customs Department in relation to either the duty free clearance or the duty paid clearance of 125 kg of the subject goods. Further, the petitioner is not interested in claiming refund of the duty paid on such consignment of 125 kg. Mr.Sridharan submits that all the imports made by the petitioner were/are within reduced entitlement based on revised norms published by DGFT, effective from 01 st April 1997. He also lays special emphasis on the fact that Vitamin Mixes falling under N.S. Kamble page 14 of 23 jud-wp-1096-1999 with chsw-64-1999 Exim Code 230990 are freely importable under the ITC-HS of Export Import Policy. There is neither any restriction nor any condition has been specified under ITC(HS) on import of goods in question. Further, the export obligation also has been discharged in full by the exporter. Else, the license could not have been transferred nor can be made transferable by the DGFT. Thus, it was satisfied that the export obligation has been discharged in full.
18. Finally, it is urged by him that in this background and when there was an interim order during the pendency of this petition, the penalty amount has not been recovered, meaning thereby the impugned order has not been enforced and implemented much less executed. Mr.Sridharan therefore, submits that in the facts peculiar to this case and which are undisputed, it is clear that there is no question of cancellation of the licence with retrospective effect. The imports being already made are not nullified as well. The petitioner is transferee of the licence. The petitioner has undertaken imports in accordance with the licence. There is no mis-statement/suppression by the parties and there are detailed representations on the record of the respondent Nos.1 and
2. The respondent Nos.1 and 2 had opportunity either to agree or reject the submissions of the exporter. However, the respondent N.S. Kamble page 15 of 23 jud-wp-1096-1999 with chsw-64-1999 Nos.1 and 2 entertained another view but at no stage held that there was any mis-statement or suppression. The petitioner says that the first defective application was made in November 1996 for issuance of licence based on the exports made during the period from 17 th October 1996 to 19th November 1996. A declaration was sought for but once the predecessor in title of the petitioner did not submit that declaration, the case was closed by the licensing authority. The second application was filed in continuation of the first application. At that stage the Exporter believed that the norms prevalent on the date of the export ought to be considered. Even the Licensing Authority proceeded on that basis. It is the adjudicating authority which takes a different view and that is no ground to impose a penalty.
19. The two without prejudice arguments of Mr.Sridharan are as follows :-
"17. Without prejudice and in any event, it is submitted that Petitioner dealt with the impugned licence only after it was transferred in its favour in May, 1998, much after the issuance of the licence by the DGFT. The petitioner cannot be held guilty of abetment in issuing the licence with the old norms in October, 1997. Indeed, there is no material on record to show that the Petitioner was N.S. Kamble page 16 of 23 jud-wp-1096-1999 with chsw-64-1999 involved in the original licence holder applying for the licence. In fact, the Petitioner has no direct dealing with the original licence holder. The Petitioner purchased the licence from the first transferee and hence charge of abetting in issuance of the license with old norms cannot be sustained.
18. Without prejudice, show cause notice called upon the original licence holder and its Directors to show cause against the proposed cancellation or licence and imposition of penalty. The show cause never required the Petitioner to show cause against the cancellation of license and imposition of penalty. The imposition of the penalty is beyond the proposal in the show cause notice."
20. Mrs.Bharucha appearing on behalf of respondent Nos.1 and 2 however submitted that the view taken by the adjudicating authority is correct and requires no interference. She justifies the fact that this was a case of a clear violation of the law justifying the imposition of penalty. She therefore, submits that the petition be dismissed.
21. Reliance is placed by the petitioner on the judgment of the Hon'ble Supreme Court reported in Collector of Customs N.S. Kamble page 17 of 23 jud-wp-1096-1999 with chsw-64-1999 V/s.Sneha Sales Corporation 2000(121)1. View that is taken in this judgment by the Supreme Court follows that in East India Commercial Company Ltd. V/s. Collector of Customs 2. It is held that in a case where the licence is obtained by misrepresentation or fraud it is not rendered non est as a result of its cancellation so as to result in the goods that were imported on the basis the said licences as goods imported without a licence in contravention of the order passed under section-3 of the Import and Export Act. That fraud or misrepresentation only renders a licence voidable and it becomes in operative before it is cancelled. The licences were cancelled by order dated 18th December 1986 after the goods have been imported and cleared. Therefore, the Tribunal rightly held that the import of the goods was not in contravention of the Import and Export Order 1955, Import and Export (Control), Act, 1947. Hence, the goods were not liable to be confiscated on that basis under Section-111(d) of the Customs Act, 1962.
22. We have also found from a reading of the FTDR Act that the penalty is sought to be imposed on the basis that the person making or abeting or attempting to make any export or import in 1 Excise Law Times-577 2 1983(13) Excise Law Times-1342 N.S. Kamble page 18 of 23 jud-wp-1096-1999 with chsw-64-1999 contravention of the provisions of this Act or any Rules or order made thereunder or the Export and Import Policy is liable to pay it. The penalty in the instant case has been imposed though there was in vogue a policy styled as Export and Import Policy from 1 st April 1992 to 31st March 1997, Chapter-VII of which contained Duty Exemption Scheme. Paragraph 66 of this Policy reads as under :
"66. Exports/supplies made from the date of receipt of an application under this scheme by the licensing authority may be accepted towards discharge of export obligation. If the application is approved, the licence shall be issued based on the input/output and value addition norms in force on the date of receipt of the application by the licensing authority in proportion to the provisional exports already made till any amendment in the norms is notified. For the remainder of the exports, the Policy/Procedures in force on the date of issue of the licence shall be applicable. The conversion of duty free shipping bills to drawback shipping bill may also be permitted by the Customs authorities in case the application is rejected or modified by the licensing authority. The exports/supplies made in anticipation of the grant of a duty free licence shall be entirely on the risk and responsibility of the exporter."
23. Reliance is also placed on the ITC(HS) Classifications of Export and Import Items prevalent from April 1997 to March 2002 N.S. Kamble page 19 of 23 jud-wp-1096-1999 with chsw-64-1999 and the Handbook of Procedure Volume-II referring to the Duty Exemption Scheme and Standard Input Output Norms. It is in this background and in the light of the undisputed factual position that we must see the show cause notice. The show cause notice refers to the acts of the exporter and thereafter says that the noticee firm was required to export 1.40,000 kgs of Headless Shrimps and in view thereof letter dated 25th May 1997 the license was amended on 27 th November 1997. The exporter transfers the license to M/s.Praful G. Kamdar and Sons referred as transferee No.1 by letter dated 28 th November 1997 and the petitioner Dilipkumar and Company was the second transferee from 30th December 1997. All the allegations in the show cause notice thus reveal that the acts attributable to the exporter are its subject matter. It is clear from the reply to the show cause notice that reliance was placed by the present petitioner on the pendency of the Writ Petition No.1286 of 1998 and the stand of the Department therein. There were certain without prejudice contentions as well which are raised specifically in the reply to the show cause notice.
24. With this background the order in original refers to all the arguments and submissions of the parties but beyond stating that the authorities have gone through the facts of case carefully N.S. Kamble page 20 of 23 jud-wp-1096-1999 with chsw-64-1999 what we find is that the findings and conclusions in the impugned order are based only on the allegations in the show cause notice. They are but a reiteration of the same. Paragraph Nos.13 and 14 of the impugned order and right upto paragraph 18 thus say nothing beyond noting the contentions. However, all that is observed at the end of of paragraph 14 is that the application for licence on the basis of old norms would reveal that there is a possibility of violation of the provisions of the policy by means of fraud, suppression of facts and misrepresentation.
25. At the same time the mitigating factors have also been noted. Yet, a prima-facie finding is rendered that the licence has been issued on the basis of forged and incorrect documents. If there were forged and incorrect documents then, the exporters' stand as reflected in his representation and reiterated from time to time should have been noted and appropriately dealt with at that stage itself. The parties who have been responsible for the alleged fraud, suppression of facts and representation should have been proceeded against at that time. Further, we find that the conclusion is not resting on fraud but fraud, suppression of facts or misrepresentation. We do not find any scope for such a mixed conclusion. Either of the acts have to be held as established and N.S. Kamble page 21 of 23 jud-wp-1096-1999 with chsw-64-1999 proved. This Court cannot be left to guess as to whether the authority concluded that either fraud is proved or that parties like the petitioner is guilty of suppression of facts or misrepresentation. We do not wish to go into niceties for a fraud could be said to be established and proved if there was suppression of facts. However, when the finding also refers to misrepresentation, then, we are left wondering as to what are the acts attributed to the present petitioner. They are essentially proceeded against for having abeted the Exporter. They have allegedly abeted in the process by importing the goods for ulterior motives is the finding but that is rendered unmindful of what is brought to our notice by Mr.Sridharan, namely, for payment of customs duties in respect of atleast 125 kgs of the goods were exported under the Bill of Entry. Thus, we are of the clear view that the finding and conclusion in paragraph 19 of the impugned order having been the sole basis on which these petitions were admitted, a status-quo order was granted restraining the respondents from giving effect to and implementing the impugned order. Rather that was the statement of the respondents themselves and they did not implement it for more than a decade now. It is in these circumstances, no useful purpose will be served by allowing the impugned order to be enforced and implemented. Moreso, when none of the contentions based on the N.S. Kamble page 22 of 23 jud-wp-1096-1999 with chsw-64-1999 admitted facts are dealt with in the impugned order. In the facts peculiar to this case and when the impugned order does not deal with the without prejudice arguments, ignores the mitigating factors, they, all the more we are disinclined to allow the respondents to enforce such an order. The impugned order is therefore quashed and set aside. It is also quashed and set aside for having not been based on cogent and satisfactory reasons. The writ petitions accordingly succeed. Rule is made absolute in the above terms. The impugned order stands quashed and set aside in both the matters, with no order as to costs.
(PRAKASH D. NAIK, J.) (S.C. DHARMADHIKARI, J.)
Digitally signed
Nilam by Nilam
Santosh Kamble
Santosh Date:
Kamble 2018.07.26
03:39:26 +0530
N.S. Kamble page 23 of 23