9911796707
TMI Blog2000 (2) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble High Court : "Can provisions of Section 112 (a) of the Customs Act, 1962 be invoked on an importer who even prior to import, has relinquished his title to the goods in terms of Section 23 (2) ibid?". 3. Ld. Counsel for the applicants briefly narrated the facts of the case as under : Applicant had in January, 1995 placed an order for 600 cartons of dry battery cells on a company in Hongkong. Such items were freely importable under the Advance Import Licences under the DEEC Scheme and were transferrable under para 127 of Import Export Policy 1992-97. Since they could not arrange for the said licence in time, they had cancelled the order subsequently in February, 1995 but the goods had already been shipped on 29-1-1995. On receipt o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of import till they were cleared through customs. Ld. Counsel submitted that the Apex Court itself had entered a caution while interpretting the provisions of Import (Control) Order by saying that the said legal fiction should not be carried beyond the provisions of that order and it cannot go to the extent of extinguishing the title of the exporter of the goods when the exporter has not received payment. He submitted that the fiction that was created was relatable to the licencee at the time of import. In the instant case though the applicant had applied for a licence, the same had not been granted to him and even before the goods were imported, he had cancelled the order placed with the foreign supplier and had made all efforts to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn supplier or by a consignee of the foreign supplier. The said decisions were therefore, distinguished in the Final Order. On the other hand the Apex Court had, on the basis of detailed analysis of the scope and purport of Clause 5(3)(ii) of the Import (Control) Order held that the goods for which the licence was granted shall be the property of the licencee at the time of import and thereafter. The Apex Court had further held that the idea was to hold the licencee responsible for anything and everything that happened to the goods from the time of import till they were cleared from customs. The Apex Court had observed "whether or not he is the owner of such goods in law, the Import (Control) order created a fiction that he shall be the own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the observations made by the Apex Court in Sampat Raj Duggar case relating to interpretation of Clause 5(3)(ii) of the Import (Control) Order and relied on by the Tribunal clearly supports the view taken in the Final Order that the purport of the said clause was to create a legal fiction that the importer shall be the owner of the goods from the time of their import till they were cleared through Customs. The underlying object was to ensure proper implementation of the Import (Control) Order issued under the Import and Export (Control) Act, 1947. Caution entered by the Apex Court in construing the said fiction was only to the extent of not extinguishing the title of the exporter when he has not received the payment. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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