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(b) the import duty levibale on such goods and all penalties, rent, interest and other charges payable in respect of such goods have been paid; and (c) an order for clearance of such goods for home consumption has been made by the proper officer.

For clearance of the goods, offloaded at the port, the importer has the option either to clear the goods for home consumption after payment of customs duties, or to clear them for warehousing, without immediate discharge of customs duties, in terms of the warehousing provisions of the Customs Act. For this purpose every importer is required to file, in terms of the Section 46, a Bill of Entry for home consumption or warehousing, as the case may be, in the form prescribed by the Regulations. The Bill of Entry is to be submitted in sets, different copies meant for different purposes. The Bill of Entry contains, among others, the name of the customs house agent, his address and licence number, the customs house agent code, the importers code, the Import-Export Code (IEC) number, importers name and address, the name of the vessel, the country of origin, the country of assignment, the bill of lading and its date, the particulars of the goods, invoice particulars, customs duty paid etc. Certain documents are also required to be submitted with the Bill of Entry. The correctness of the information has also to be certified by the importer in the form of a declaration at the foot of the Bill of Entry, and any mis- declaration/incorrect declaration has legal consequences.

In the exercise of the powers conferred by Section 157 read with Section 46 of the Customs Act, the Central Board of Excise and Customs made the Bill of Entry (Electronic Declaration) Regulations, 1995. Regulation 2(a) thereof defines authorized person to mean (i) the Customs House Agent who holds a permanent licence under the Customs House Agents Licensing Regulations, 1984, and is authorised by the Commissioner of Customs with a user identification; or (ii) an importer who holds a valid Import Export Code number, and is specially authorized by the Commissioner of Customs with a user identification for the purpose of obtaining clearance of goods imported by him. Regulation 2(b) defines bill of entry to mean the electronic declaration accepted and assigned with a number by the Customs Computer system for further processing. Regulation 2(d) defines electronic declaration to mean the declaration of the particulars relating to the imported goods, lodged in the Customs Computer System, through the data-entry facility provided at the service centre or the data communication networking facility provided by the National Informatics Centre. Regulation 3 requires the authorised person to furnish, for the purpose of clearance of the imported goods, a cargo declaration in the format set out in Appendix-A to the regulations, and such other information as may be necessary for preparing an electronic declaration of the bill of entry. Regulation 5 stipulates that the data entry shall be deemed to be complete when the option to lodge the electronic declaration in the Customs Computer System is exercised, and the declaration is accepted by the System. Regulation 8 requires the authorised person, after completion of assessment of the bill of entry, to obtain three copies of the print-out of the assessed bill of entry from the service centre. Such person is required to sign the copies of the print-out, indicating his name and designation at the space provided for the purpose affirming the truth of the contents recorded on the assessed bill of entry. He is required, thereafter, to present the same along with copies of challans evidencing payment of duty, and other supporting import documents in original, relating to the goods referred to in the bill of entry, for the examination of the said goods by the proper officer and for the issue of the order permitting clearance of the said goods for home consumption or warehousing. Regulation 10 requires the authorised person to obtain a declaration from the importer affirming the truth of the contents of documents relating to the imported goods sought to be cleared in duplicate, and to present one copy in original to the proper officer at the time of submission of the bill the of entry, and to retain one copy with him for his records. Regulation 11 requires the original print-out of the bill of entry to be retained by the proper officer and the duplicate and the triplicate print-outs to be returned to the importer.

The authorized person, entitled to furnish a cargo declaration in terms of Regulation 3 read with Appendix-A and to present various documents as stipulated in the Bill of Entry (Electronic Declaration) Regulations, 1995, is either the clearing house agent or the importer and none else. In terms of Regulation 2(a) thereof, the Clearing House Agent must have a permanent licence and the importer a valid Importer-Export Code number. Both of them are also required to be authorized by the Commissioner of Customs with an user identification. The user identification number is required for the importer to obtain clearance of the goods imported by him. It is evident, therefore, that it is either the Clearing House Agent or the Importer who alone can clear the imported goods for home consumption. In this context, it is useful to refer to the contents of one of the Bills of Entry enclosed along with W.P.No.6258 of 2010. The head of the said Bill of Entry refers to Indian Customs EDI System. Under the column importer details, the Code No. is stated as 2605001091 and the PAN No. as ABMPA8919R. The name of the importer is shown therein as Sanjay Kumar Agarwal, Vellanki Frame Works. The IGM number and date are recorded as 423/2006 dated 13.04.2006. The port of loading is shown as Yangon and the country of origin as Myanmar. The bill number is recorded as GCTC No.5310611 and the bill date as 08.04.2006. The number of packages is shown therein as 155 pcs. The invoice number and date is recorded as 209/2006 dated 11.04.2006 of M/s.Alkemal Singapore Private Limited. The invoice value is shown as 1,31,500.29 US Dollars and the HSS as Original Importer No.37000009100 Purbanchal Lumbars Pvt. Ltd. The Bill of Entry records the name of Srinivasa Transports as the clearing house agent, and their number as DDC No./DT.Officer:2100/03-05- 2006/TKESAV. The declaration thereunder is signed both by Sri Sanjiv Kumar Agarwal as the importer and Srinivasa Transports as the clearing house agent. It is evident, from the said Bill of Entry, that the goods were imported by the petitioner, and were cleared from customs with the assistance of the customs house agent M/s.Srinivasa Transports. If, as contended by the petitioner, the goods were sold by them to M/s.Radha Industries on high seas, and before the goods entered the customs port, the name of the importer should have been shown as Radha Industries, and not as Sanjiv Kumar Agarwal, Vellanki Frameworks. The fact that the name of the importer is shown as Sanjiv Kumar Agarwal, Vellanki Frameworks, and the Bill of Entry makes no reference to Radha Industries, goes to show that the goods were imported by the petitioner on a high sea sale effected in their favour by Purbanchal Lumbers Private Limited; it is they who had imported the goods; and sale of goods by them to Radha Industries could only have been effected after the goods had been cleared for home consumption.