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TMI Blog1986 (10) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... authority of Binod Mills Company Limited, M/s. Anna Exporters and M/s. Literate Wear, the petitioners imported Denim cloth used in the manufacture of Jeans trousers, the import licences having been duly obtained by those firms. Once the goods arrived and the clearing of the consignments were under process, one of the import licence holder M/s. Literate Wear withdrew the authority of the petitioners with the result, the clearance of the goods imported got blocked. The petitioners in their own right as the averment goes on their own import licence sought to clear the consignment which had already landed in India. 4. The Customs Department however, found that the petitioners could not clear the consignment of Denim cloth imported in the name of M/s. Literate Wear as their letter of authority had been withdrawn. The same could not also be permitted clearance because the petitioners obtained an endorsement on their import licence from the Import Control Exchange Department after the arrival of the goods. The Department came to hold that the endorsement on the licence of the petitioners was later in point of time than the landing of the goods in India and to that extent according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sought altogether different relief de hors the direction of the Board. 6. It is common ground that the Board had directed the Collector to prefer an appeal to the Appellate Tribunal for seeking enhancement of the redemption fine based on the market value of the denim cloth and for imposition of personal penalty. But the Collector in his appeal prayed for an order for quashing his own order dated 3-1-1984 and for remand of the proceedings for de novo examination. The Appellate Tribunal was not amenable to the reliefs prayed for by the Collector as the Tribunal held that the prayers were extraneous to the directions given to the Collector by the Board and therefore beyond his powers. The Collector of Customs in his appeal had sought the remand of the proceedings on the ground that in so far as the endorsement on the licence produced by the petitioners for importation of denim cloth, forgery had been committed by the petitioners. But however, it must be seen that the Appellate Tribunal was not impressed with the discovery by the Collector about the forgery relating to the endorsement on the import licence. For that matter, the Appellate Tribunal held that this was a subject which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs who brought to the notice of the Magistrate how and under what circumstances the goods were imported and got cleared by them and finally made a prayer that the same be returned to them so that the manufacture of jeans could be commenced. After hearing both the sides on 5th of May 1986, the following order was passed : "Heard both the sides. The property in question is a cloth worth Rs. 3 lakhs. It is to be auctioned by the dept. and I am informed that the accused is entitled to offer his bid. The Ld. Customs Prosecutor submitted that the dept. has no objection if the property is ordered to be returned to accused on his giving a bank guarantee of Rs. 2½ lakhs. I, therefore, direct that the cloth in question to return to the accused after retaining samples of the same, on accused offering bank guarantee in sum of Rs. 2½ lakhs. As the property is liable to deterioration in value, I permit the accused to manufacture Jeans from the cloth and sell the same way in the way he could legally do, under the terms of licence." A little later, on 28th July 1986 another order was passed which is to this effect : " If the accused fails to furnish bank guarantee on or before 6th of August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antee on or before 6th of August, 1986 is in excess of his jurisdiction and therefore, the same is liable to be quashed and struck down. He also made a grievance that it is not so easy to obtain bank guarantee as no bank gives bank guarantee unless an equivalent amount is deposited and that way, he contends that if the petitioners are made to deposit an amount of Rs. 2.5 lakhs it will be a big financial burden on the petitioners which will naturally affect their business. 9. In so far as the story of the petitioners in the petition is concerned, there is no difficulty at all and it could be held that once the Customs Department had allowed them to clear the goods and they had complied with the order of the Collector of payment not only of the importation duty but even the redemption fine of Rs. 10,000/- and once the appeal filed by the Collector is dismissed by the Appellate Tribunal, there is no occasion for the Metropolitan Magistrate to have called upon the petitioners to furnish a bank guarantee and that too for such a large amount and the challenge therefore, in so far as the petitioners are concerned is very formidable. But however, the things are not that smooth. At the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Metropolitan Magistrate under Section 451 of the Code of Criminal Procedure. If on consideration of the matter, the Metropolitan Magistrate made the impugned order requiring the petitioners to give a bank guarantee to take away the goods, there cannot be any complaint in respect thereof. 11. In the matter of the complaint that is pending before the Metropolitan Magistrate it is urged that the petitioners are yet to answer the charges under the Customs Act and in relation to the alleged forgery, regarding the endorsement on the import licence and therefore, in fitness of things, the Magistrate would be competent to pass an order under Section 451 of the Criminal Procedure Code pending the trial. He also brought to my notice that the goods were seized at Delhi on 14-2-1984 and even a show cause notice under Section 122 of the Customs Act has been freshly given to the petitioners as to why the goods ought not to be confiscated. 12. Mr. Kotwal on behalf of the petitioners made a grievance that the action of the Customs Department is not bona fide and it is borne by mala fides. He mentions that though this Court had directed the Collector of Customs to file an affidavit by 19t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cence and that they are said to be wrongfully sold to some party in Delhi which facts are entirely extraneous to the fact of importation and delivery of goods and unfortunately, this action is not challenged in the present petition. Therefore, I am afraid that I am unable to interfere with the orders of the Metropolitan Magistrate because he is now seized of the Criminal case including the charges of forgery against the petitioners whether or not the action of the Customs Department in seizing the goods again is illegal. The fact remains that the complaint is pending with the Metropolitan Magistrate and that action of the Collector of Customs is not challenged in the present petition. If the petitioners want to take away the goods and the Magistrate has required of them to furnish bank guarantee to take away the goods, there is no error whatsoever. It is no doubt true that some prejudice will be caused to the petitioners in furnishing bank guarantee in the sum of Rs. 2.5 lakhs if they want to take away the goods seized by the Customs Department on 14-2-1984. But the fact remains that they are at liberty to take those goods and it is not that they are prevented by the order of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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