9911796707
TMI Blog1963 (9) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Petitioner imported from Japan 10 cases of black insulating tapes of the C.I.F. value of Rs. 995/-. The goods arrived at Bombay from Japan by s.s. 'Nakashi Maru" on or about April 3, 1962. 2. The goods were not allowed to be cleared. The Petitioner was served with a memo to show cause dated April 24, 1962, on the ground that the Petitioner's licence was not valid to cover the goods of import. The contention was that the goods of import were "adhesive tapes" and the import of "adhesive tapes" was banned under Serial No. 38 Part II of the I.T.C. Schedule. The Petitioner submitted his written explanation in May 1962. In due course, the Petitioner was given personal hearings, in the first instance by one S. B. Sarkar, the then Assistant Collector of Customs, and ultimately by Respondent No. 1. The Petitioner's case is that before the Respondent 1 passed the above order the Petitioner's representatives were informed by the Assistant Collector of Customs that the file containing the Petitioner's case had been sent for consideration to the Additional Collector of Customs and to the Collector of Customs and that after the file was returned by the Collector, the Respondent 1 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k published by the Central Government. The index in fact shows that adhesive tapes'' is a separate category by itself. The index also shows that "black insulating tapes" is also a separate category in respect of "electric insulations". If the 1st Respondent had approached the matter in a correct way, having regard to the two distinct categories mentioned in the index to the Policy Book as regards adhesive tapes" and "black insulating tapes", he would not have permitted himself to make a finding that the Petitioner's goods were "adhesive tapes". The Petitioner's contention is that the phrase "adhesive tapes" refers to a distinct category of goods. To ascertain whether the goods of import are "adhesive tapes", it is not permissible for the Customs officers to find out whether the goods have the quality of adhesiveness. The Petitioner's contention is that as there is no positive specific provisions of law restraining and/or banning import of "black insulating tapes", the findings made by the 1st Respondent were altogether unjustified. The findings are the result of wrong approach to the facts of the Petitioner's case by the 1st Respondent and accordingly arbitrary and perverse. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hird contention made on behalf of the Petitioner is that in the matter of other importers of black insulating tapes the Customs Officers have allowed the clearance of the goods of import by issuing mere warnings. The confiscation of the goods of import and imposition of fine by the impugned order is accordingly discriminatory and violative of the provisions in Article 14 of the Constitution. 7. The next contention of the Petitioner is that the fine of Rs. 2,000/- imposed has no rational relation to the value of the goods of import. The fine is accordingly excessive. The fine imposed without any rational relation to the value of the goods of import and object of the provisions in Section 183 of the Sea Customs Act is liable to be set aside as arbitrary. 8. The last contention made on behalf of the Petitioner is that by the impugned order directions are given for payment of Customs duty before clearance of the goods. Those directions do not give to the Petitioner the option to clear the goods upon mere payment of fine. The condition attached to the right to clear the goods upon payment of fine in lieu of confiscation is invalid having regard to the provisions in section 183 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g tapes". That was the correct view and it was permissible, therefore, for the 1st Respondent to distinguish the judgment of the High Court of Madras. That fact by itself cannot and does not make the order of the 1st Respondent perverse and arbitrary as contended on behalf of the Petitioner. 11. In connection with these rival contentions made by the parties, it is first necessary to notice the contents of entry Serial No. 38 Part II I.T.C. Schedule, which runs as follows : Part S. No. of I.T.C. Schedule Description Licensing Authority Policy for Establis-hed Impo-rters Validity of Licences Remarks (1) (2) (3) (4) (5) (6) 38 Electric Insulation including press-pahn (Electrical Grade), but excluding ebonite rods, tubes sheets. Ports 20% Six months (i) Quota licences will not be valid for the import of adhesive tapes, adhesive tape cloth in rools and sheets and phenolic resin laminated in the form of sheets, rods and tubes, including such phenolic resin laminated under the trade names of Bakelite and Tuffnol. (ii) Not more th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence held by the Petitioner for import of "electric insulations'' entitled the Petitioner to import the 10% cases of black insulating tapes. The answer must be in the positive unless the contents in the remarks column No. 6 indicated prohi bition on import of these goods. Whilst detaining the Petitioner's goods, the contention that was made in this connection on behalf of the Customs was that there was a ban on the import of these goods by reason of the contents of item (ii) in the remarks column No. 6 in the entry Serial No. 38 part II. In other words, reliance was placed on the following words in item (ii) in the remarks column No. 6 : Quota licences will not be valid for the import of adhesive tapes, . The Customs contended that the Petitioner's goods were "adhesive tapes". In this connection, on behalf of the Petitioner reliance was rightly placed on the contents in the index relating to the goods known as "Insulations, electric". These are all quoted above and show "adhesive tapes" separately from several other categories of goods such as "black insulating tapes" "glass, silk tape", "fibre glass tape", "impregnated tapes and cloth", "micanite silk tape", "rubber tape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious items of different kinds of goods mentioned in the index. It can hardly be denied that the index and the Schedule to the Import Trade Control order are relevant connecting documents which when read together bring all and every kind of goods within the cover of Import Trade Control Order. Obviously, therefore, whilst deciding the question of legality and otherwise of the imports made in respect of different articles Customs Officer is bound to consider the contents of the index as binding. He is bound to arrive at his decisions on the footing that the index forms part of the law of Import Trade Control Order. 15. In this connection, it is convenient to refer at this stage to the observations made in the case Rikabdoss v. Collector of Customs, M.B.B. xxxx in the index goods of different description were included in the same item 38 of Section II "Adhesive tapes" and "Black insulating tapes" were enumerated separately. Mr. Gopalratnar (counsel for the Appellant) contended that these two categories must be exclusive. If there was a category of goods known in the market as 'black insulating tape', such category would not fall within the category of 'adhesive tape' even assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch are known as "adhesive tapes" meant for electric insulations. Having regard to the contents of the index, in any event, it must be held that "adhesive tapes" are a separate category of articles and are not the same as "black insulating tapes" mentioned in the index. Under those circumstances, I am in respectfully agreement with the findings made by the High Court of Madras. 18. In this connection, it is necessary to record that in making the above finding I am not negativing the contention made by Mr. Sorabji that the phrase "adhesive tapes" as mentioned in column No. 6 of Serial No. 38 Part II of the I.T.C. Schedule does not refer to adhesive tapes generally. That reference must obviously be and is reference to "adhesive tapes" (being articles) used for electric insulations. I am, however, unable to accept his argument that the index contained in the Policy Book is merely for convenience and has no particular importance with reference to diverse categories of goods and articles mentioned in the index. In fact, all sorts of different articles are mentioned in the index along with the relevant entries in different parts of the I.T.C. Schedule. Without such reference, due admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the High Court of Madras. The attempt, prima facie, has proved futile. On reading the relevant paragraph, I have not found any valid reasons mentioned in the order enabling the 1st Respondent not to follow the decision of the High Court of Madras. Under the circumstances, in my view, the order made by the 1st Respondent must be held to be arbitrary and perverse. In the result, I was bound to examine the contentions made on behalf of the Petitioner on the merits of the case. As the contentions made on behalf of the Petitioner have been accepted by me the impugned order must be set aside. 20. As I am in favour of the Petitioner on the above main ground, it is unnecessary for me to discuss the other contentions made by the Petitioner which I have already summarised above. It requires to be recorded that prima facie I see no substance in the Petitioner's contention that the impugned order is liable to be struck off as discriminatory and violative of the provisions in Article 14 of the Constitution. There is no substance in the contention of the Petitioner that the fine imposed is excessive. In that connection, the statement made on behalf of the Respondents that the margin o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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