9911796707
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Issues Involved:
1. Jurisdiction of the Court 2. Legality of the Import Policy and Public Notice 3. Validity of the Import License and Revalidation 4. Imposition of Personal Penalty 5. Discrimination in Granting Re-export Permission Issue-wise Detailed Analysis: 1. Jurisdiction of the Court: The petitioners argued that the High Court of Calcutta has jurisdiction because the business activities and office of the petitioner are situated within its jurisdiction, and the impact of the impugned order is felt at Calcutta. The Court held that "where the effect of an order is felt, part of cause of action arises within the jurisdiction of that Court." Consequently, the Court concluded that it has jurisdiction to try the writ petition, relying on the Division Bench judgment in the case of Hindustan Aluminium Corporation. 2. Legality of the Import Policy and Public Notice: The petitioners contended that the contract for import was entered into on 2nd June 1981, when the item was under the Open General License (OGL). They argued that the Public Notice dated 5th June 1981, being administrative in nature, cannot affect the statutory OGL order. The Court agreed, stating that "statutory order can only be changed, amended or anything deleted therefrom by means of another statutory order and not by administrative or executive order." Therefore, the item in question continued to be under OGL during the entire policy period of 1981-82. 3. Validity of the Import License and Revalidation: The petitioners argued that the import license issued on 29th June 1981 was valid for the import of the item in question, and the revalidation condition did not take away their rights. The Court held that "the licence will be governed by the policy during which the same has been issued." It further noted that the revalidation condition, which allowed the import of OGL items under the policy period of 1982-83, conferred additional rights on the petitioner. The Court concluded that extending the validity period of the import license cannot take away the rights which otherwise stood fastened on the date of issuance of the license. 4. Imposition of Personal Penalty: The petitioners challenged the imposition of a personal penalty of Rs. 5 crores under Section 112 of the Customs Act, arguing that the Collector of Customs had no jurisdiction to impose such a penalty after the adjudication order. The Court agreed, stating that "it is not open to the respondent no. 1 to go ahead again for another adjudication order and re-open the earlier order." The Court found the additional show cause notice and the imposition of personal penalty to be illegal and without jurisdiction. 5. Discrimination in Granting Re-export Permission: The petitioners argued that the respondent had granted re-export permission to another importer, M/s. Oswal Woollen Mills Ltd., without any conditions, while imposing conditions on the petitioners. The Court held that "laying conditions by means of the impugned order for grant of permission to re-export is not only illegal but are violative to Article 14 of the Constitution of India and misuse of powers." The Court concluded that the petitioner's import was valid and lawful, and the contract was legally entered into, thus entitling the petitioner to import the item against the said import license. Conclusion: The Court ruled in favor of the petitioners, quashing the order of the Collector of Customs dated 20th December 1983, which imposed a personal penalty of Rs. 5 crores under Section 112 of the Customs Act. A writ of certiorari was issued, and a consequential writ of Mandamus was issued commanding the respondent not to give effect to or act upon the impugned order. The Court also ordered that the petitioner's import was valid and lawful, and the goods were lawfully imported against a valid license. The parties were directed to bear their respective costs.
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