Document Fragment View

Matching Fragments

J.Chelameswar, C.J.

Aggrieved by the judgment dated 5th July, 2011 in W.P(C). No.16503 of 2011, the unsuccessful petitioner preferred the instant appeal.

2. The appellant, one Mr.T.A.Joslin, describes himself to be the proprietor of a business concern carrying on business of imports and exports. He has been duly registered as such and duly allotted an 'Import Export Code'. He imported certain consumer goods, such as cosmetics etc. The goods arrived at the Cochin Port some time in the month of April, 2011. They were de-stuffed on 27.4.2011 at the Container Freight Station, Petta. The said material was examined by the respondents in the first week of May, 2011. But the goods were not cleared for home consumption. The appellant received a communication dated 16.5.2011 from the Commissioner of Customs, Cochin, Special Intelligence and Investigation Branch (IPR Cell). The substance of the said communication is that, of the various items of the goods imported by the appellant (numbering 23), three items are found to be objectionable items. According to the said communication, import of the said items amounts to infringement of the Trade Marks Act, 1999. It appears from the said communication that the respondents received complaints from two companies, M/s.Johnson & Johnson Ltd. and M/s.Wipro Cyprus Private Ltd. claiming to be the holders of a trade mark in the products specified by them and the import of the same would infringe the trade mark conferred on them. The Commissioner, therefore, called for certain informations from the appellant, the details of which are contained in paragraphs 4 and 5 of the said communication. The relevant portion of the said communication reads as follows:

iv) Pass such other order or direction as this court may deem fit and proper in the interest of justice."

6. The respondents filed a counter affidavit dated 28.6.2011. The substance of the counter affidavit is that apart from the question of infringement of the intellectual property rights (the trade mark), the import in question involved the issues of "under invoicing, mis-declaration, bogus imports for third parties by misusing Import Export Code etc." It is also stated in the counter affidavit that the track record of the importer indicated that he habitually declares very low prices to evade duty and therefore, a detailed investigation is required in the matter. The relevant portion of the counter affidavit reads as follows:

"....The issue of intellectual property right infringement is one among the many issues involved in this case. Major issues involved are under invoicing, mis-declaration bogus imports for third parties by misusing Import Export Code etc. Regarding intellectual property right infringement, department is bound to initiate proceedings, wherever import of goods with registered trade mark by authorized importers are noticed. On detailed scrutiny three items are found covered under intellectual property right regulations. Hence a single letter in this regard was issued. There is no piecemeal approach as alleged by the importer as the single letter Exhibit P- 2 issued by Department to importer covers all these items. The contention that these items are not covered by Intellectual Property Right rules is also absolutely false and hence denied.
"7. Importer-exporter Code Number.- No person shall make any import or export except under an Importer-exporter Code Number granted by the Director General or the officer authorised by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General".

The expression "import" occurring in the said section means bringing into India of goods as defined under Section 2(e). There is nothing in the law which requires an importer to be either the consumer or even the buyer of the goods also. Even otherwise, we are of the opinion that it is a matter of common sense that no importer would consume all the materials imported. Necessarily, the goods imported are meant for sale to the consumer, in which case, if an importer, who enjoys the facility of I.E Code imports certain goods in the normal course of business on the strength of a contract entered by such importer with either a consumer or a trader who eventually sells the imported goods to consumers. We do not understand what can be the legal objection for such a transaction especially where the import of such goods is otherwise not prohibited by law. At any rate, if the respondents have any tenable legal objection on that count, the respondents must pass an appropriate order indicating the legal basis on which the action is proposed and also the nature of the action proposed for such perceived violation of law on the part of the respondents after giving a reasonable opportunity to the importer to meet the case against him. Instead of proceeding to determine the duty leviable on the imported goods by following the appropriate procedure or passing an order of confiscation if they believe that they are justified in the facts and circumstances, the respondents, it appears, are indefinitely detaining the goods without any appropriate order being passed thereon. Such a course of action, in our opinion, is absolutely illegal.