1970 (2) TMI 53 - SC - Customs

Whether the learned single Judge was right in holding that there were two apparent errors of law in the Assistant Collector s order, in that, he had relied on (a) a warning in respect of the previous year s consignment, and (b) a restriction on future imports of similar goods to the extent of 15% of the face value mentioned in the licence? Held that - In the absence of any proof that they were, the High Court obviously could not say that they were governed by the said clarification, and that, therefore, the goods did not fall under Entry 38A(e), as the Assistant Collector had ruled, or that there was any apparent error in that finding. It appears that except for relying on the said clarification no attempt was made at any time to establish that the goods were similar to those of the previous year s imports and therefore, could not be classified as auto-bulbs. The question of restriction to the extent of 15% arose only when Hazarimal relied upon the said clarification in his explanation to the show cause notice. It was, therefore, that the Assistant Collector in his order stated that even if the goods were covered by that clarification, only 15% of the value stated in that licence could be imported. It is thus difficult to see how the impugned order suffered from either of the two errors of law apparent on the record. he order stated that even if the clarification were to apply on the footing that the goods were similar to those of the previous year s import then the restriction of 15% import contained in the clarification would apply, and that, therefore, in either case the import could not be held valid. In view of such clear language in the impugned order the Division Bench cannot be said to have been in error as contended by Counsel. Appeal dismissed.

Summary

Issues Involved:
1. Classification of imported goods under Entry 38A(e) or Entry 38A(f).
2. Adequacy of opportunity for being heard.
3. Validity of the warning issued in the previous year.
4. Applicability of the 15% import restriction.
5. Jurisdiction of the Assistant Collector.
6. Observance of natural justice.

Detailed Analysis:

1. Classification of Imported Goods:
The core issue was whether the imported electric bulbs fell under Entry 38A(e) (motor car lamps/auto-bulbs) or Entry 38A(f) (other lamps). The Assistant Collector of Customs classified the goods under Entry 38A(e), asserting they were auto-bulbs, which was contested by the importer who claimed they fell under Entry 38A(f). The Division Bench of the High Court held that the classification was a question of fact, not law, and thus did not constitute an error apparent on the face of the record.

2. Adequacy of Opportunity for Being Heard:
The contention that the opportunity for being heard was inadequate was not raised as a ground for quashing the order. The High Court focused on whether there was an error apparent on the face of the record, rather than procedural fairness.

3. Validity of the Warning Issued in the Previous Year:
The Assistant Collector's order referenced a warning issued in the previous year, which was not appealed by the importer. The Single Judge found it erroneous to rely on this warning, as there was no provision for appealing against such a warning. However, the Division Bench noted that the real issue was whether the goods were similar to those previously imported, which was not proven.

4. Applicability of the 15% Import Restriction:
The Assistant Collector referred to a restriction that imports under Entry 38A(f) could only be up to 15% of the face value of the licence. The Single Judge found this reliance erroneous as the licence did not explicitly contain such a restriction, nor was it mentioned in the show cause notice. However, the Division Bench upheld the Assistant Collector's view, stating that the restriction was inherent in the entry itself and applicable if the goods were classified under Entry 38A(f).

5. Jurisdiction of the Assistant Collector:
The argument that the Assistant Collector had no jurisdiction to classify the goods as auto-bulbs was dismissed. The clarification obtained in the previous year did not bind the Assistant Collector, as there was no evidence that the current goods were similar to those previously imported.

6. Observance of Natural Justice:
The claim that the Assistant Collector failed to observe natural justice by not disclosing materials obtained during the examination of the goods was not raised in the writ petition or before the High Court. Therefore, this contention was not entertained by the Supreme Court.

Conclusion:
The Supreme Court upheld the Division Bench's judgment, rejecting the appeal. It concluded that no error of law apparent on the face of the record was established. The classification of the goods as auto-bulbs under Entry 38A(e) by the Assistant Collector was affirmed, and the import restrictions under Entry 38A(f) were deemed applicable if the goods fell under that entry. The appeal was dismissed, and costs were awarded to the respondents.