1991 (10) TMI 65 - HC - Customs

Summary

Issues Involved:

1. Whether the writ petitions can be maintained under Article 226 of the Constitution of India.
2. Whether there was an "import" or "intention to import" the goods in question.
3. Whether the petitioners are entitled to a writ of mandamus for re-export of the goods.
4. Whether the order of adjudication by the Collector of Customs was valid.
5. Whether the petitioners, as foreign companies, have any enforceable legal rights under the Indian Constitution.
6. Whether the goods in question were liable for confiscation under the Customs Act, 1962.

Issue-wise Detailed Analysis:

1. Maintenance of Writ Petitions under Article 226:

The court examined whether the writ petitions could be maintained under Article 226 of the Constitution of India by foreign entities. Article 226 allows High Courts to issue directions, orders, or writs for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. The court referred to precedents, including Indo-China Steam Navigation Co. v. Jasjit Singh, which held that foreign companies are not entitled to claim benefits under Articles 14, 19, and 31 of the Constitution. The court concluded that the petitioners, being foreign companies, could not claim rights under Part III of the Constitution, including Article 300A, which pertains to the right to property.

2. "Import" or "Intention to Import":

The court considered whether there was an actual "import" or merely an "intention to import" the goods. The petitioners argued that no bill of entry was filed, indicating no intention to import. The respondents contended that the goods were manifested for import into India, and the act of bringing goods into the port of discharge constituted importation. The court referred to the Aluminium Industries Ltd. v. Union of India, which stated that the act of importation is complete when goods are brought into the port of discharge. The court found that the goods were intended for importation into India.

3. Writ of Mandamus for Re-export:

The court analyzed whether the petitioners were entitled to a writ of mandamus directing the re-export of the goods. The court noted that the petitioners' conduct did not compel the exercise of discretion under Article 226 in their favor. The court emphasized that the petitioners could not claim ownership of the goods, as the documents were with the Bank. The court also highlighted that the order of adjudication by the Collector of Customs stood, and the petitioners had alternative remedies available under the Customs Act and ordinary civil law.

4. Validity of the Order of Adjudication:

The court examined the validity of the order of adjudication by the Collector of Customs. The respondents argued that the goods were liable for confiscation under Clauses (d) and (f) of Section 111 of the Customs Act, 1962, due to non-genuineness of the S.S.I. Certificate and wrong declaration in the manifest. The court found that the order of adjudication was passed in compliance with the principles of natural justice and that the goods vested with the Central Government under Section 126 of the Customs Act.

5. Enforceable Legal Rights of Foreign Companies:

The court discussed whether the petitioners, as foreign companies, had any enforceable legal rights under the Indian Constitution. The court reiterated that foreign companies are not entitled to claim fundamental rights under Part III of the Constitution. The court also referred to the Supreme Court's decisions in Indo-China Steam Navigation Co. v. Jasjit Singh and British I.S.N. Co. v. Jasjit Singh, which held that foreign companies cannot claim rights under Articles 14, 19, and 31.

6. Liability for Confiscation under the Customs Act:

The court considered whether the goods in question were liable for confiscation under the Customs Act, 1962. The respondents argued that the goods required a valid import license and were liable for confiscation under Clauses (d) and (f) of Section 111 of the Customs Act. The court found that the goods were restricted items under the Import Policy and were "prohibited goods" under the Import and Export Order, 1947. The court concluded that the respondents were entitled to take action under the provisions of the Customs Act.

Conclusion:

The court dismissed the writ petitions, holding that the petitioners, as foreign companies, could not maintain the writ petitions under Article 226 of the Constitution of India. The court found that there was an intention to import the goods, and the goods were liable for confiscation under the Customs Act. The court also held that the petitioners had alternative remedies available and were not entitled to a writ of mandamus for re-export of the goods.