9911796707
TMI Blog1983 (11) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellants. In response to the notice dated 11-9-1981, the appellants averred that M/s. Laxmi Metals, Bhagalpur, to whom the licence was originally issued (and from whom the appellants held a Letter of Authority to import the goods) was in existence on 19-2-1980, the date of issue of the licence and that, therefore, the licensing authority could not have cancelled the licence on the ground that the firm does not exist and therefore, this licence may not serve the purpose for which it has been issued. In any event, the cancellation could take effect only from the date of the order of cancellation, namely, 10-3-1981. The Additional Collector of Customs, Bombay, on adjudication, confiscated the said goods without giving the importers an option to redeem the goods on payment of a fine. The appellants went up in appeal before the Board who, while upholding the Additional Collector s order, modified the order on absolute confiscation to one allowing the appellants the option to clear the goods on payment of a fine of ₹ 5.00 lakhs. It is against this order that the appellants have come in appeal before us. 2. The appeal was heard on 29-9-1983. Shri Talyar Khan, the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced after the licence-holder had closed the factory and that even if the goods were released to the importer who was the Letter of Authority holder, the goods could not be delivered to the Actual User (the licence holder) who had ceased to exist. The Additional Collector had no powers to confiscate the goods on this basis. No other basis had been disclosed leading to the confiscation order. 4. Turning to the Board s order-in-appeal, Shri Talyar Khan submitted that paras 5 and 11 of the Order were contradictory to each other. Para 5, which was a reproduction of the Dy. CCI E s order, stated that M/s Laxmi Metals, Bhagalpur was issued an import licence as a SSI new unit on the basis of recommendation from the General Manager, District Industries Centre, Bhagalpur, para 11 stated that the licence had been obtained by M/s. Laxmi Metals when the firm had been closed and even the machinery had been disposed of, the Proprietor had not only de-registered the firm but was not even traceable. In other words, the firm was not in existence when it obtained the licence. Similarly, it had been incorrectly stated in para 13 of the Order that the Show Cause Notice had been issued on 1-1-1981 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods, the balance of the sale proceeds should be returned to the appellants. 8. Appearing on behalf of the Respondent, the learned Departmental Representative submitted that the order of cancellation of the licence had the effect of making the licence invalid ab-initio. If the appellants were aggrieved with the order of cancellation, they could have preferred an appeal to the competent authority but the Tribunal was not the forum for agitating this matter. It was not correct to say that the event of import was complete when the goods entered the Indian Customs Waters. Imported goods , according to Section 2(25) of the Customs Act, meant any goods brought into India from a place outside India but did not include goods which had been cleared for home consumption. Section 111(d) of the Customs Act dealt with goods imported in contravention of any prohibition in force. Since there was no valid licence for clearance of the goods, the goods were correctly held to be imported without a valid licence. Even if it was held that cancellation of the licence took effect only from the date of cancellation of the licence, i.e. 10-3-1981, and not ab-initio, on the date the Bill of Entry for cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the operation of any licence, where proceedings for cancellation of such licence have been initiated under sub-clause (1). This clearly implies that unless an order in terms of clause 9(3) is made, the licence continues to be operative till an order of cancellation is made in terms of clause 9(1). No evidence has been produced before us to show that such an order under clause 9(3) was made in the case of the present licence. The licence should, therefore, be deemed to have been operative and valid till 10-3-1981 on which date the Dy. CCI E made his order of cancellation of the licence. The Department s contention that the cancellation order rendered the licence void ab-initio must, as a consequence, be rejected. 12. The appellants contentions that they were not served with a show cause notice by the Dy. CCI E, that they came to know of the cancellation of the licence only when the Customs authorities made this fact known to them after they filed a Bill of Entry for clearance of the goods and that, as the Letter of Authority holders, they had, in good faith, proceeded to import the goods in the meanwhile have not been controverted by the Department. Nor has any evidence neg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any officer authorised by the Central Government Chief Controller of Imports and/or Govt. Of India. This order, therefore, authorised the Government of India or the Chief Controller of Imports to cancel such licences and make them ineffective. The specified authority has not cancelled the licence issued in this case on the ground that the condition has been infringed. We need not consider the question whether the Chief Controller of Imports or the Government of India, as the case may be, can cancel a licence after the term of the licence has expired, for no such cancellation has been made in this case. In the circumstances, we must hold that when the goods were imported, they were imported under a valid licence and therefore it is not possible to say that the goods imported were those prohibited or restricted by or under Ch. IV of the Act within the meaning of clause (8) of Section 167 of the Sea Customs Act. When the Court has held that even a licence obtained by fraud is only voidable, that it is good till voided in the manner prescribed by law, there is no basis whatsoever for taking the view, as the Department wants us to do, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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