TMI Blog1988 (6) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... siness of manufacture and export of leather bags, inter alia, the first petitioner imports various types of lining cloth such as Flock Cotton Lining and P.V.C. Leather lining. 4. In accordance with the Import and Export Policy framed by the Government of India the petitioners made application for grant of advance licence with the benefit of custom duty exemption for import of diverse items including the aforesaid Flock Cotton Lining and P.V.C. Leather lining. Pursuant to the application filed by the first petitioner the concerned authority issued an Advance General Licence to the first petitioner being No. P/L/3021306/XX/95/C/85 dated 19th June, 1985, inter alia, permitting to import 38180 metres of P.V.C. Lining and 38180 metres of Flock Cotton Lining. 5. For the purpose of importing, inter alia, P.V.C. Leather Lining and Flock Cotton Lining under the said Advance Licence, the petitioners on or about 6th November, 1986 obtained a proforma invoice from Messrs HSIN - L. I. Chemical Industrial Corporation, Taipei, Taiwan. From the said proforma invoice it appeared that the said foreign supplier was in a position to supply 20000 metres of Flock Cotton Lining and 22500 metres of P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormed that no test was conducted prior to the placement of the order and in any event, the said Flock Cotton Lining was to be consumed for the purpose of manufacturing bags which were to be exported in accordance with the conditions of licence. On 9th April, 1987 the Collector of Customs gave a personal hearing in connection with the release of the aforesaid goods. 10. Inasmuch as no order had been passed by the concerned Customs Officer until 19th May, 1987 the petitioners by its letter dated 19th May, 1987 requested the concerned Collector to intimate the order inas much as the petitioners had to fulfil their obligations in respect of the said licence. By the said letter the petitioners also requested the concerned Customs Officer to release the Duty Exemption Entitlement Certificate Book and the original licence which had been seized by them. 11. On or about 28th May, 1987 the petitioners received an order bearing No. S 60/DL (Sec 49.)/24/87A dated 1st May, 1987 whereby the concerned Collector inter alia, held that the importation of polyster lining and viscose Flock worth Rs.3,95,517.47 c.i.f. without a proper licence is prohibited under Section 11 of the Customs Act read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities to release the said P.V.C. Leather Lining, in respect whereof there has been no complaint of any nature whatsoever. 17. On 24th September, 1987 the petitioners' representatives held a personal meeting with Deputy Collector (DEEC) and impressed upon him the urgency of release of the said goods. The said Deputy Collector requested the petitioner to furnish copies of all the relevant papers and documents for consideration. Pursuant to the said request under cover of a letter dated 25th September, 1987 the petitioners furnished copies of all relevant papers and requested him to direct immediate release of the P.V.C. Leather Lining in respect of which there was no complaint by the Customs authorities. 18. On or about 2nd November, 1987 in accordance with the directions of the Customs authorities the petitioners filed a Bill of Entry for release of the P.V.C. Leather lining after proper assessment. The said Bill of Entry however was not assessed and no clearance of the goods permitted by the concerned Customs authorities. 19. By a letter dated 4th December, 1987 the petitioners placed the aforesaid facts on record and requested the concerned Collector of Customs to personally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and by operation of law the entire goods are liable to confiscation and as such confiscated." 24. On the other hand the contention of the writ petitioners is that the order of confiscation was confined to Flock Cotton Lining and the petitioners were given option to clear Flock Cotton Lining upon payment of fine and duty have any jurisdiction to retain that part of the goods which had not been confiscated. 25.I have considered the rival contentions. 26. In the Adjudication order dated 1st May, 1987 the Collector of Customs, inter alia, held as follows : 'Test Result indicates that the goods under description of 'Flock Cotton Lining' is actually Woven Fabrics of polyester staple fibre one side of which is coated with viscose flocks. Therefore the goods declared as Flock Cotton Lining are actually polyester lining with Viscose Flock. The other Item i. e. P. V. C. Leather Lining was confirmed by the test report. The licence and DEEC are very specific which permits flock cotton lining. The goods imported i.e. polyester lining with viscose flock is not covered by the said licence and DEEC. Moreover, such item is not also covered by open General Licence of Import Trade Control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and penalty. However, you may avail the legal remedies as provided under Customs Act, 1962 if you so desire." 29. Subsequently the petitioners on or about 2nd November, 1987 in accordance with the directions of the Customs authorities filed a Bill of Entry for release of the P.V.C. Leather lining after proper assessment. The said Bill of Entry however was not assessed and no clearance of the goods permitted by the concerned Customs Authorities. 30. Ultimately, however, the Customs Authorities took the stand that petitioners have to clear both the offending goods and non-offending goods upon payment of fine and duty. 31. Mr. Lala learned counsel appearing for the respondents referred to Section 150 of the Customs Act and submitted that the non-offending goods, namely PVC Leather Lining should not be released. He also referred to Sec. 118 of the Customs Act. 32. Section 150 of the Customs Act provides the procedure for sale of goods not being confiscated goods which are to be sold under any provisions of the Act. The only provision of the Customs Act which provides for goods other than confiscated goods to be sold is Section 142 of the Customs Act. The relevant provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the findings of the respondents themselves the PVC Leather goods was validly imported. The respondents cannot detain the said goods on the apprehension that ultimately the illegally imported goods may not be taken delivery of by the petitioners. If the confiscated goods are not redeemed, then in that event it will be for the Customs Authorities to sell the goods and realise its dues. But the respondents cannot compel the petitioners to redeem that part of the goods which were illegally imported to get other validly imported goods released. This is not enjoined by any provisions of the Act. It is not disputed that the offending and non-offending goods were brought in separate packages. I have already referred to various correspondences passed between the petitioners and the respondents. Although a contention has been raised in the affidavit that it is difficult if not impossible to segregate the goods before delivery, but as a matter of fact the goods are identifiable and are separately packed. Otherwise adjudication order could not have been passed holding that a part of the subject goods had not been validly imported. 38. In my view the refusal on the part of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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