1982 (8) TMI 66 - HC - Customs

Issues Involved:
1. Constitutionality of the Customs Tariff (Amendment) Bill and Act, and related notifications.
2. Rate of customs duty applicable.
3. Identity and locus standi of the petitioner.
4. Valuation of imported goods.
5. Confiscation of goods due to breach of import license.
6. Effect of the Income Tax Department's order under Section 132A of the Income-Tax Act.

Detailed Analysis:

1. Constitutionality of the Customs Tariff (Amendment) Bill and Act, and related notifications:
The petitioner challenged the Customs Tariff (Amendment) Bill No. 50 of 1982, the Customs Tariff (Amendment) Act No. 40 of 1982, and the notification dated 16-4-1982, arguing that they were ultra vires and unconstitutional, violating Articles 19(1)(g), 265, and 300A of the Constitution. The court observed that retrospective imposition of taxes to prevent revenue loss is not inherently unreasonable and does not violate constitutional provisions. The court cited the case of Motibhai Lalloobhai & Co. v. Union of India and Another, AIR 1957 All. 84, and concluded that the Amendment Act is not unconstitutional.

2. Rate of customs duty applicable:
The petitioner contended that the duty payable was only 45% based on the value shown in the invoices, excluding landing charges. However, the court noted that according to Section 15 of the Customs Act, 1962, the rate of duty is determined by the rate in force on the date of the bill of entry presentation. Since the bill was presented on 11-5-1982, the petitioner was liable to pay customs duty at the rate of 230% ad valorem, as per the amended Act effective from 16-4-1982.

3. Identity and locus standi of the petitioner:
The respondents questioned the identity of the petitioner, alleging that the person who opened the bank account and applied for the letter of credit was not the petitioner but Anil Kumar, brother of Vinod Kumar. The court examined various documents and statements, including bank records and forensic reports, which suggested that there was confusion due to the similarity in names. Despite grave doubts about the petitioner's identity, the court proceeded on the presumption that the goods were imported by the petitioner for the purpose of the present problem.

4. Valuation of imported goods:
The Customs authorities valued the goods at $2650 per M.T., based on several invoices from the same suppliers and Japanese producers. The petitioner argued that the goods were defective and should be valued at a lesser price. The court provisionally fixed the value at Rs. 15,000 per M.T., considering the petitioner's agreement to sell the goods at that price and the statement in the invoices.

5. Confiscation of goods due to breach of import license:
The respondents argued that the goods were liable to confiscation under the Customs Act and Import Control Order due to a breach of license, as the value of the goods exceeded the license value. The court noted that the goods had not yet been confiscated and that the valuation was seriously contested by the petitioner. Therefore, this issue should not prevent the petitioner from clearing the goods at this stage.

6. Effect of the Income Tax Department's order under Section 132A of the Income-Tax Act:
An order under Section 132A of the Income-Tax Act was issued by the Income Tax Department, directing the Assistant Collector not to release the goods. The court dismissed a writ petition against this order but stated that the potential income-tax liability could be safeguarded by a proper guarantee. Thus, it would not be reasonable to hold the goods for this reason.

Interim Orders:
The court directed that pending the decision of the writ petition, the respondents should allow the petitioner to clear the goods upon fulfilling certain conditions:
1. Payment of customs duty at 230% on the value computed at Rs. 15,000 per M.T., with part payment in cash and the rest secured by an unconditional bank guarantee.
2. Furnishing a bank guarantee for an amount equal to 10% of the invoice value of the goods to the Director of Inspection (Investigation) Department of Income-Tax.
3. Keeping inventories and records of the sold goods and furnishing them to respondent No. 3.
4. Furnishing a bank guarantee for any potential claims regarding demurrage/ground rent/detention charges before issuing a detention certificate.

The court disposed of the C.Ms. 2737, 2907, and 2908 of 1982 accordingly.

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