9911796707
TMI Blog1989 (4) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms of Public Notice dated September 1, 1983 at a price of US $ 410 F.O.B. Bombay port against Letters of Credit dated 18th November, 1983 and 9th December, 1983 of Belgolaise Brussel to Bank of Baroda for amounts of US $ 820,000 and US $ 410,000 respectively and consequently immediately release revenue deposit in respect thereof. (ii) to re-export the balance quantity against confirmed Letter of Credit issued in favour of the petitioner company at a price of US $ 410 F.O.B. Bombay Port and consequently release revenue deposit in respect thereof immediately. (c) Rule Nisi in terms of prayers (a) and (b) above; (d) Stay of the operation of the said order dated December 20, 1983 in so far as it imposes penalty and/or puts conditions on the re-export of the consignment of 10945.408 metric tonnes of beef tallow belonging to the petitioner company. (e) An order be issued and/or direction be made commanding the respondents to forthwith permit the petitioner company; (i) to re-export 3,000 metric tonnes /-5% beef tallow per vessel M.T. JULIND or any other vessel in terms of Public Notice dated September 1983 at a price of US $ 410 F.O.B. Bombay Port against the Letters of Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter dated 10th February, 1982 informing that the foreign buyer is liable to pay damages to his supplier, the same would be the responsibility of the petitioner company. Ultimately, the foreign supplier wrote a letter dated 2nd July, 1982 to the petitioner company mentioning therein that as a special case he was giving time upto 31st October, 1982 to the petitioner company to open the Letter of Credit failing which the foreign supplier would refer the matter to the Federation of Oilseeds and Fats Association, London as Arbitrator. By letter dated 6th January, 1982 the petitioner company tried to persuade the foreign supplier to drop the matter to Federation of Oilseeds and Fats Association and treat the contract as cancelled due to the Government restrictions. The petitioner company received a notice dated 3rd February, 1983 from the Advocates and Solicitors of the foreign supplier. 4. The petitioner company along with the Managing Director filed a Writ petition being Civil Writ Petition No. 313 of 1983 in the High Court of Delhi for appropriate Writs, Direction and Order including the writ against the said bank to open the Letter of Credit and for other reliefs. In the said writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate amount of Rs. 109.6 lacs in lieu of confiscation. The petitioner company paid the said amount of redemption fine and cleared the goods. Thereafter the petitioner preferred an appeal to the Tribunal against the Collector of Customs dated 24th May, 1983 by the Memorandum of Appeal dated 30th August, 1983 which is pending. Thereafter, other two consignments of 10373 metric tonnes covered by the said contract into the Port of Bombay by vessels. The Customs of Bombay did not permit the clearance of the goods and once again issued a show cause notice dated 15th July, 1983 under Section 124 of the Customs Act. The Collector of Customs given a personal hearing on 3rd August, 1983. The Collector of Customs intimated the petitioner company on 23rd August, 1983 about the amount of redemption fine against which the petitioner company and cleared the goods. 6. Ultimately the permission was granted to the petitioner for export of the said goods by 17th November, 1983. The first respondent imposed a personal penalty of Rs. 5 crores under Section 112 of the Customs Act while allowing the petitioner to re-export the goods. The petitioner's further case is that the Collector of Customs has exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Justice, time was granted to the respondent to file Affidavit-in-opposition on or before 21st January, 1989 and the matter was placed for further hearing on 30th January, 1989. 11. The respondent did not file Affidavit-in-opposition. However, by order dated 31st January, 1989 time was granted to the respondent to file Affidavit-in-opposition. Thereafter, the Affidavit-in-opposition was filed. 12. It is submitted by the Ld. Advocate appearing for the petitioners that the petitioners have challenged the legality of the Order No. S/10/175/83-A dated 20th December, 1983 passed by the respondent no. 1 by virtue of which the respondent No. 1 ordered for confiscation of 10495.468 metric tonnes of inedible beef tallow and also imposed a personal penalty of Rs. 5 crores and permitted to re-export the goods. It is submitted by the learned Advocate appearing on behalf of the petitioners that the petitioner entered into the said contract on 2nd June, 1981. The Item in question was placed under O.G.L. and the contract of the petitioner is to be governed by the policy as was in force on 2nd June, 1981. Public Notice dated 5th June, 1981 being administrative in nature cannot in any manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit to this Court to throw the petition. The other contention which is raised by the learned Advocate for the respondent is that because of the filing of the appeal under Section 129A of Customs Act, the writ petition should be dismissed. It is submitted by the Ld. Advocate for the respondent that as alternate remedy is available, the petition under Article 226 of the Constitution of India is not maintainable. 14. It is submitted by the Counsel for the petitioner that prior to 15th Amendment of 1963 under Article 226 of the Constitution of India, the relief in respect of writ jurisidction could have been granted by High Court against governmental authority or a person who is available and otherwise functioning within the territorial jurisdiction of the High Court. By 15th Amendment of 1963 clause 1(a) was added to Article 226 of the Constitution of India, now it is clause (2) of Article 226. After the amendment of the Constitution of India, every High Court can exercise power under Article 226 of the Constitution of India if, in addition to the availability of the respondents within its territorial jurisdiction, if cause of action wholly or part of cause of action have arisen wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. Counsels and I find that there is force in the argument of the Ld. Advocate for the petitioner. In this connection, reference may be made to the Division Bench decision of this Court in the case of Union of India v. Hindustan Aluminium Corporation wherein the Division Bench of this Court had the occasion to consider the validity of the Aluminium Control Order, 1970 which was passed for availability of aluminium and its products at a fair price and for regulating production, supply and distribution thereof and in the context of that control order which has resulted loss to the Hindustan Aluminium Corporation Ltd. and such loss was suffered by the said Corporation at Calcutta. The writ petition was entertained by this Court on the ground that the effect of that Central Order was felt within the jurisdiction of this Court. It is too late for the respondents to raise such technical plea. It is quite clear that where the effect of an order is felt, part of cause of action arises within the jurisdiction of that Court. Since the petitioner functions at Calcutta and the consequence of the impugned order will effect the petitioner's business at Calcutta also, a part of the cause of acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods without any licence as Actual User. Actual User is entitled for the import of the said item placed at Serial No. 1 of Appendix 10. It is further submitted by the Ld. Advocate for the petitioner that the petitioner is the holder of an Import licence which covers the goods in question and is dated 29th June 1981 as the Letter of Authority issued in the name of M/s. B. Arun Kumar Company. The Ld. Advocate for the petitioner relied on a decision reported in A.I.R. 1962 S.C. page 1893 East India Commercial Company v. Union of India; and he also relied upon a decision reported in A.I.R. 1986 Delhi page 221, where it has been held that OGL order cannot be varied, changed or anything deleted therefrom by means of Public Notice. 18. The Ld. Advocate for the respondents submitted that on account of the Public Notice dated 5th June 1981 the item in question stands deleted from the list of OGL items, and immediately on issuance of Public Notice, it became canalised item. I have given my anxious consideration on the submissions of the Ld. Counsels of the parties and I find that there is force on the contention of the Ld. Counsel for the petitioner, and I accordingly hold that the Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Advocate for the petitioner that it was not within the jurisdiction of the licensing authorities to lay any condition except to grant revalidation for a period of six months. The Ld. Advocate appearing for the petitioner referred to the endorsement made on the licence at the time of granting revalidation wherein it is stated that the licence will also be valid for the import of OGL item under para 185 of the Import Policy 1982-83, subject to the condition laid down and shall be non-transferable. 22. It is submitted by the Ld. Advocate appearing for the petitioner that it was not within the jurisdiction of the respondent no. 1 to lay any condition except to grant revalidation. 23. It is submitted by the Ld. Advocate appearing for the petitioner that even the revalidation condition have conferred extra right on the petitioner. The word 'also' has its own significance. It confers additional right on the petitioner and if the petitioner intended, he could have imported OGL item as placed during the policy period of 1982-83. The right of licence will be governed by the Policy during which it was issued. The Ld. Advocate relied upon a decision reported in A.I.R. 1971 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I further hold that by merely laying conditions at the time of re-validation will not take away the right of the petitioner. The word 'Also' has its own importance and gives additional right to the petitioner to make import of the items against the said licence as were placed under OGL during the policy period 1982-83. I hold that the petitioner's contract dated 2nd June 1981 is subject to the policy as were prevalent on the date of the contract and the petitioners are entitled to import the item in question against the said import licence dated 29th June 1981. Para 185(4) issues the mandate to the licencing authorities that in case at the time of connected export obligations are discharged and if the validity of the licence has expired, the authority will give re-validation. Extending the validity period of the import licence cannot take away the rights which otherwise stood fastened on the date of issuance of licence. 28. One cannot give two colours to the same licence and cannot hold that the licence in one situation is valid for the import of OGL items of the policy period 1981-82 and ceases to be valid for the subsequent policy period. Once a right as accrued to the citize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the earlier order. I further hold that the additional show cause notice and imposing of personal penalty in consequence thereof are illegal and the same has been passed without jurisdiction. 29. The learned advocate for the petitioner submitted that the order of laying conditions for re-export and imposing personal penalty as a result of granting permission is violative of Article 14 of the Constitution of India and the said order is illegal. The learned advocate also submitted that the order made by the Collectorate Authorities are binding upon them and the Customs Authorities cannot be permitted to vary the order against different parties though they are placed in the same situation. The learned advocate for the petitioner referred to the proceeding as was held on 14th September 1983 in the Hon'ble High Court at Bombay wherein the respondent no. 1 considered himself for grant of permission to M/s. Oswal Woollen Mills Ltd. for re-export of the goods which were confiscated and cannot be cleared for home consumption on account of notification dated 24th August 1983 issued by the Central Government without laying any condition for personal penalty. The learned advocate for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was entitled to import the said item against the said contract. The licence which was issued to the petitioner is also valid. The goods have been also lawfully imported against a valid licence. The Rule is made absolute. Let a writ of certiorari be issued quashing the order of the Collector of Customs communicated to the petitioner on 23rd August 1983 by virtue of which the beef tallow weighing 10485.400 M.T. was directed to be confiscated under Section 111(D) of the Customs Act of 1962 with option to redeem the goods on payment of redemption fine of Rs. 1.72 crores under Section 125 of the Act of 1962 since the goods have been lawfully imported. 32. Hence it is ordered that a writ of certiorari be issued quashing the order of the Collector of Customs dated 20th December 1983 imposing personal penalty of Rs. 5 crores under Section 112 of the Customs Act of 1962. Let a consequential writ of Mandamus be issued commanding the respondent not to give effect to the same or to act upon the same. In view of the facts and circumstances of the case, the parties will bear their respective costs. 33. At this stage Mr. Roy Chowdhury, Advocate on behalf of the respondent submits that he onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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