1990 (2) TMI 74 - HC - Customs

Summary

Issues:
1. Export of Intensive Care Respirator System with accessories.
2. Interpretation of Exports (Control) Order.
3. Restrictions on export under Customs Notification No. 208.
4. Bill of Entry for home consumption and its implications.
5. Constitutional guarantee under Article 19 for trading by way of export.

Analysis:
1. The petitioner imported Intensive Care Respirator System with accessories and intended to export it to Moscow for a net foreign exchange earning. Customs authorities refused to endorse the shipping bill for export, citing that the export of the item is not permitted under the law. The petitioner sought a mandamus to permit the export of the goods.

2. The petitioner argued that under the Exports (Control) Order, the subject goods could be freely exported to any country. The respondents contended that the export was not permitted based on a clarification received from the Joint Chief Controller of Imports & Exports. However, the Court noted that the item was not prohibited under any law from being exported, as it was not included in Schedule I of the Exports (Control) Order.

3. The Customs Notification No. 208 allowed duty-free import of the item, but there was no explicit restriction on exporting the goods. The Court held that availing the benefit of exemption from customs duty did not prohibit the petitioner from exporting the item, unless expressly prohibited by law.

4. The Bill of Entry for home consumption was cleared for the imported item, but the Court clarified that the description was not a restriction on how the consignment should be used. The Bill of Entry categories did not impose any specific restrictions on the utilization or export of the imported goods.

5. The judgment emphasized the constitutional guarantee under Article 19 of the Constitution of India, protecting trading through export unless prohibited by law. The Court highlighted that the Exports (Control) Order aimed to regulate exports without affecting the country's economy, and since the item was not prohibited for export, the petitioner was entitled to relief. The writ petition was allowed with no costs imposed.