Bombay High Court
Dowsyl Polymers Pvt. Ltd. And Another vs M.G. Abrol, Special Secretary, ... on 27 August, 1987
Equivalent citations: 1988(1)BOMCR40, 1987(31)ELT895(BOM)
ORDER
1. Petitioner No. 1 - company is a small scale industrial unit. It has its registered office in Bombay. Petition No. 2 is a shareholder and Managing Director of petitioner No. 1 and also reside in Bombay. They manufacture textile auxillary chemicals and like products.
2. The petitioners state that the import trade control policy for the year 1976-77 permitted the nominee of the registered exporters to acquire import licence on actual user basis. Accordingly, as nominees of the registered exporters, the petitioners obtained 4 REP licences for the import of MHP and other chemicals. The licences contained a list of items attached thereto and one of the items permissible for the import therein was MHP. Under the aforesaid licences the petitioner-company could import any of the listed terms for and upto a total value of Rs. 2,95,130/- mentioned therein in specific terms. Amongst other things the licences had this specific condition....
"This licence is issued subject to the further condition that even if an item is by general nomenclature or specially included in this licence it shall not be considered to be so included in this licence if the said item is known by any other name/trade name/or a synonym and is cannalised under that name on the date of issue of this licence."
3. The petitioners imported a consignment of 11.8 tonnes of the said MHP which arrived in Cochin on August 20, 1977. The petitioners presented their bill of entry for the CIF value of Rs. 2,92,868/- and requested the Collector of Customs at Cochin (respondent No. 3) to release the said consignment in terms of the aforesaid bill of entry. The third respondents pointed out that the said MHP imported by the petitioners was on test found to be silicon oil and the import thereof was restricted to the 10% of the face value of the said four licences. He accordingly contended that the face value of the said four licences came to Rs. 2,95,130/- and as such goods only worth Rs. 29,513/- were covered by the said four licences and consequently the remaining goods were imported without the valid import licence and was unauthorised
4. A show cause notice dated January 12, 1978 was thereupon issued to the petitioner-company to show cause as to why the said MHP valued at Rs. 2,63,355/- (being the excess value over and above the 10% of the face value of the four licences) should not be confiscated under Section 111(d) of the Customs Act, 1962 read with 3(2) of the Imports and Exports (Control) Act, 1947. By the said show cause notice, third respondent also called upon petitioner-company to show cause as to why MHP valued at Rs. 2,63,355/- should not be confiscated also under Section 111(m) of the Customs Act, 1962. The allegation in the show cause notice was that there was a misdescription on the part of the petitioners. The second allegation was that the import was without a valid licence. The petitioners pointed out that there was no misdescription. The item had been shown as MHP and it was imported as MHP and it could be known as silicon oil also. But they pointed out that there is no mis-description or any attempt to mis-describe the item on the part of the petitioners. They also pointed out that they have imported items strictly according to the licence which permits them to import the material and, therefore, it cannot be said that the import was without a valid licence.
5. However, respondent No. 3 by his order dated November 27, 1978/December 2, 1978 held that the quantity of MHP valued at Rs. 2,63,355/- CIF was not covered by the aforesaid licences and the same was liable to be confiscated under Section 111(a) of the Customs Act, 1962, read with S. 3(2) of the Imports and Exports (Control) Act, 1947. He also said that the same was liable for confiscation under Section 111(m) of the Customs Act, 1962 for Mis-description. Accordingly, goods came to be confiscated and a fine of Rs. 2,00,000/- was imposed and personal penalty of Rs. 50,000/- was also imposed on the petitioners under Section 112(a) of the Customs Act, 1962.
6. The petitioners filed an appeal to the Central Board of Excise and Customs, New Delhi. However, the appeal was rejected by an order dated January 15, 1980. The petitioners thereafter paid the redemption fine as also the personal penalty as ordered earlier. On July 8, 1980 the petitioners preferred a revision petition to the Government of India and set out various contentions in the said application. The petitioners' revision application was also rejected on November 20, 1980. The petitioners thereafter filed the present petition on or about February 17, 1982. On the question of jurisdiction, the petitioners stated that the petitioners have their registered office in Bombay and their licences were issued to them in Bombay and the respondents have their administrative offices in Bombay and, therefore, they stated that a part of the cause of action has arisen in Bombay and that is how this petition should be entertained in this court.
7. As far as the respondents were concerned, there is no affidavit-in-reply. The only contention the respondents raised was one of territorial jurisdiction. I will deal with this question last.
8. On the charge of mis-description under Section 111(m) the order in revision holds that the goods had been correctly described in the bill of entry by their chemical name and that, therefore, the petitioners cannot be said to be guilty of that offence under Section 111(m).
9. Therefore, the only limited question is as to whether if could be said that the import was without any valid licence. For the purpose of contending that the import was without a valid licence, the respondents relied on import policy of year 1976-77. It appears that under the said policy there is a condition restricting the import to 10% of the face value of the licence. Mr. Rana points out that the import policy does not have the force of law. He also submits that the policy may bind the authorities but not the citizens. He further submits that assuming that the policy lays down a condition restricting 10% import, there is no restriction under notified orders under Section 3 of the Imports and Exports (Control) Act, 1947. In this connection he has drawn my attention to some of the judgments to which I will briefly refer. Firstly, he drew my attention to the case of Andhra Industrial Works. v. Chief Controller, Imports, . He has also drawn my attention to the case of J.C.C. of Imports & Exports v. Aminchand, wherein it is expressly stated that prohibition of import of article cannot be recognised unless there is an order to that effect published in the official gazette. It has also been stated here that the Red Book for rules and procedure for import Trade Control are in the nature of instruction provided for grant of import licence and they do not have statutory force. Mr. Rana also referred to the case of B.C. & Co. v. Union of India, and the relevant portion is as follows at Para 153.
"What is termed "policy" can become justifiable when it exhibits itself in the shape of even purported "law". According to Article 13(3)(a) of the Constitution, "law" includes "any Ordinance, Order, Bye-law, Rule, usage having in the territory of India the force of law". So long as policy remains in the realm of even rules framed for the guidance of executive and administrative authorities it may bind these authorities as declarations of what they are expected to do under it. But, it cannot bind citizens unless the impugned policy is shown to have acquired the force of "law"."
10. Mr. Rana has also drawn my attention to an unreported judgment of the Supreme Court in Civil Appeal No. 801 of 1964 M/s. Jagannath Aggarwala v. B. N. Dutta and others. The relevant portion is as follows :
"But this statement of policy was not a notified order under Section 3 of the Importers & Exports Control Act 1947 and could not amount to prohibition of import of the goods, see the Joint Chief Controller of Imports & Exports, Madras v. Amin Chand Mutha. The Central Government could prohibit the import of camphor only by an order under Section 3, published in the official gazette. The Assistant Collector of Custom and the High Court held that the import of camphor BP was not authorised by the licence largely on the ground that the import of camphor was totally banned during the relevant licensing period. As a matter of fact, the Division Bench of the High Court said that the appellant would have been entitled to import camphor BP under the licence "if there was no specific ban on camphor as such in the schedule itself." But we find that there was no ban on the import of camphor and consequently much of the reasoning of the High Court falls to the ground."
11. There is yet another case of our High Court reported in 1981 E.L.T. 235 Lokesh Chemical Works v. M. S. Mehta, Collector of Customs (Preventive) Bombay and others. The learned Judge has categorically stated herein that once the licence is issued to authority can present import of items mentioned in the licence except by cancellation thereof under Import & Exports (Control) Act, 1947 or under Import (Control) Orders, 1955. He has also referred to a number of cases and has reiterated the legal position that the import control policy has no force of law. In the present case, it is clear that the authorities have come to the conclusion that the import was restricted to 10% of the face value of the licence, on the basis of the import policy of 1976-77 and not by virtue of any statute or any order. If that is so, in my view the order of confiscation purported to have been passed under Section 111(d) will have to be set aside.
12. This takes me to the only question which has been argued by the respondents. Mr. Sethna for the respondents argued that no part of the act has been arisen in Bombay. He submitted that goods were imported in Cochin and it was in Cochin that the action was taken. He also pointed out that the petitioners were not correct when they said that licences were issued in Bombay. Therefore, excepting the petitioners having their registered office here, there is nothing else which could be said to have happened within the jurisdiction of this High Court. He relied upon certain cases. Firstly, he referred to the case of Lt. Col. Khajoor Singh v. Union of India, . I need not deal with this case inasmuch at this was prior to the amendment of Article 226 of the Constitution of India. However, he referred to a later case being the case of State of Rajasthan v. Swaika Properties, , which requires consideration.
13. As against this Mr. Rana submitted that it can be said that his Court has jurisdiction inasmuch as a part of the cause of action has arisen in Bombay. He submitted that the petitioners have their registered office in Bombay and that they received the show cause notices in Bombay. He also submitted that it can be said that the petitioners were affected in Bombay. Therefore, he submitted that in such circumstances it is possible to hold that this Court has jurisdiction to try and entertain this case.
14. Mr. Rana in particular relied on the case of Damomal v. Union of India, . The case related to a certain claim under the Displaced Persons (Claims) Supplementary Act of 1954. The petitioner was a resident of Ulhasnagar while the order were passed in Delhi. However, while dealing with question as to whether it could be said that this Court has jurisdiction, the learned Judges have taken into account the fact that the petitioner was a resident of a place situated in the District of Maharashtra State and that the impugned order itself shows that the case was heard in Bombay. The Court has further held that there can hardly be any doubt that the effect of this order fell on the petitioner at Ulhasnagar where he resides. Again, it has been stated that it is not in dispute that the proceedings in consequence of the order would be held by the officers located within the jurisdiction of the Court. Therefore, I am doubtful whether this authority can be of any help to Mr. Rana as such.
15. However, I think that his contention falls squarely within the ratio of the case of Prem Cables Pvt. Ltd. reported in 1981 E.L.T. 440 (Raj.). This is a case of Rajasthan High Court and is in relation to Customs and countervailing duty. After referring to the amendment of Article 226 of the Constitution of India and after referring to a number of judgments including the judgments cited by Mr. Sethna, the Rajasthan High Court took the view that even though all actions had been taken outside Rajasthan and in Bombay, still the Rajasthan High Court had jurisdiction inasmuch as all the order were forwarded to the petitioner at Pipalia Kalan in Rajasthan and they were received at that place in Rajasthan. In this connection a reference was made to a Madras High Court's judgment being the case of L. V. Verri Chettiar v. Sales Tax Officer, Bombay, . (Mr. Rana has also relied on this case.). The Rajasthan High Court followed the same reasoning and quoted with approval, the following :
"The person primarily affected by the respondent issuing the notices from time to time to the petitioners and calling upon there to produce the accounts of their business carried on in the State of Tamil Nadu and again by proposing to assess them to the best of his judgment on the assumption of certain jurisdictional facts is the addressee of such notice and such affection relates to the bundle of facts in the totality of the list or proceeding concerned, and such impact necessarily gives rise to a cause of action, though it may be in part. It is established that in the fiscal laws a proposal to assess forms part and parcel, of the machinery of assessment and thus understood, the service of notice to assess and calling upon the petitioner to explain has given rise to a cause of action as is popularly and legally understood and the machinery of assessment has been set in motion and the impact of that motion is felt by the petitioners within the territorial limits of this State. We have, therefore, no hesitation in holding that a part of the cause of action has arisen in the State of Tamil Nadu."
16. Mr. Sethna relied heavily on the case of State of Rajasthan v. Swaika Properties, . In this case what happened was that the petitioners therein had their registered office at Calcutta and they owned certain land on the outskirts of Jaipur city of Rajasthan. Under a town planning scheme the property belonging to the petitioner-company was sought to be acquired. It appears that initially a notice was given under the local Act and in response to the said notice the petitioner-company had appeared before the Special Officer in special hearings and particularly contended that the land was needed for themselves. The Special Officer on being satisfied that the land was not bona fide required by the petitioner, rejected the prayer for its release and recommended that the entire land be acquired by the State Government. Thereafter the State Government issued a impugned notification under Section 52(1) of the said local Act and thereby the land vested in the State Government free from all encumbrances. Thereafter a notice under Section 52(2) of the said local Act regarding acquisition of that land was served on the petitioners. The petitioners filed a writ petition in the Calcutta High Court and they pleaded that the part of the cause of action arose in Calcutta inasmuch they received a notice under Section 52(2) of the said Act and that they had their registered office within the territory of the State of West Bengal. The Supreme Court in terms held that the Calcutta High Court had no jurisdiction to try and entertain the said writ petition inasmuch no material part of the cause of action had ever arisen within the jurisdiction of the Calcutta High Court. In relation to the notice under Section 52(2) of the said local Act which was served at the petitioners' registered office at Calcutta, the Supreme Court observed that that would not give rise to the cause of action within that territory unless, "the service of such notice was an integral part of the cause of action. The entire cause of action culminating in the acquisition of the land under Section 52(1) of the Act arose within the State of Rajasthan i.e. within the territorial jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to the question whether service of notice is an integral part of the cause of action within the meaning of Article 226(2) of the Constitution must depend upon the nature of the impugned order giving rise to a cause of action. The notification dated February 8, 1984 issued by the State of Government under Section 52(1) of the Act became effective the moment it was published in the official Gazette as thereupon the notified land became vested in the State Government free from all encumbrances. It was not necessary for the respondents to plead the service of notice on them by the Special Officer, Town Planning Department Jaipur under Section 52(2) for the grant of an appropriate writ, direction or order under Article 226 of the Constitution for quashing the notification issued by the State Government under Section 52(1) of the Act. If the respondents felt aggrieved by the acquisition of their lands situate at Jaipur and wanted to challenge the validity of the notification issued by the State Government of Rajasthan under Section 52(1) of the Act by a petition under Article 226 of the Constitution, the remedy of the respondents for the grant of such relief had to be sought by filing such a petition before the Rajasthan High Court, Jaipur Bench, where the cause of action wholly or in part arose."
17. In my view, these observations of the Supreme Court distinguish that case from the case which is before me. Can it be said that the notice served under Section 124(1) of the Customs Act, 1962 on the petitioners in Bombay was not an integral part of the cause of Action ? Under the Customs Act, 1962, no order confiscating any goods or imposing any penalty on any person shall be made unless a notice as contemplated under Section 124 is served on the owner of the goods or no such person who is made liable for the same. Mr. Rana drew my attention to the fact that all the notices and orders addressed to the petitioners were served at the address of the petitioners in Bombay. He, therefore, submitted that this being an integral part of the cause of action and the notices and orders having been received by them in Bombay, it could necessarily be said that this Court has jurisdiction to try and entertain this case. He also submitted that the petitioners were affected by the orders inasmuch as they paid the fine and penalty in Bombay.
18. In my view, having regard to these circumstances it can be said that a part of the cause of action has arisen within the jurisdiction of this Court and, therefore, I must hold that this Court has jurisdiction to try and entertain this case.
19. It is not necessary to refer to various other judgments cited across the bar.
20. I, therefore, pass the following order :
Rule is made absolute in terms of prayers (a) and (b).
Amounts to be refunded within a period of eight weeks from today.
21. However, in the circumstances of the case, there will be no order as to costs.