9911796707
TMI Blog1991 (1) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The appellants are recognised export house within the meaning of the relevant import policy issued each year by the Government of India and are holders of an export house certificate issued by the Chief Controller of Imports and Exports, New Delhi. The petitioners for the purpose of carrying on its business of import and export avail of various facilities under the import policies issued by the Government from time to time. The import policies broadly classify the importers into two categories, that is Actual Users and Registered Exporters. Registered Exporters are of three types, Manufacturer Exporters, Merchant Exporters and Export/Trading Houses. The Registered Export Houses are entitled to avail of different types of licences to meet their requirements and the licences issued are Replenishment Licence, Advance Licence and Imprest Licence. During the Import Policy for the period 1982-83 an Export House was entitled to facilities as per Paragraph 183 of the Policy. Paragraph 185(4) of the Policy inter alia provided that the facilities for import of OGL items available in sub-para (3) may also be allowed on merits to Export Houses against their advance/imprest licences on acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by judgment delivered on August 20, 1985. The learned Judge directed the authorities to : (a) revalidate for the period of six months from the date of revalidation the petitioners imprest licence, and (b) endorse the licence to be valid for import of OGL items under Paragraph 185 (excluding sub-para 7 thereof) of the April-March 1983-84 Policy except any items the import of which has been specifically banned under the current policy. The authorities carried appeal against the order of Mr. Justice Pratap before the Division Bench, but the appeal ended in dismissal. The authorities then approached the Supreme Court by filing Special Leave Petition, but that also ended in dismissal. 4. After dismissal of the proceedings in the Supreme Court, the authorities revalidated the imprest licence and made endorsement in the following terms :- "Items as per OGL of 1982-83 excluding items not permitted to Export Houses under the Import Policy for 1985-88 i.e. excluding items appearing in lists of restricted items, limited permissible items and canalised items. The endorsement has been made in terms of Para 185 of Import and Export Policy 1982-83 subject to the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts (Control) Act, 1947 and why penalty under Section 112 of the Customs Act should not be imposed on the petitioners. The petitioners gave explanation but the Customs Authorities made the show cause notice absolute and directed confiscation of goods, but permitted redemption on payment of Rs. 28,260/-. The petitioners paid the redemption price and cleared the goods on February 5, 1990. 6. Before the show cause notice was disposed of, the petitioners filed Writ Petition No. 1457 of 1987 in this Court challenging the legality of the show cause notice and seeking clearance of the goods. The petition was resisted on behalf of the respondents, and the learned Single Judge by the impugned judgment dated August 19, 1987 dismissed the petition. It was contended before the learned Judge that by judgments of the Supreme Court in the case of Raj Prakash [1987 (30) E.L.T. 45 (SC) = AIR 1986 SC 1021], M/s. Indo-Afghan Chamber of Commerce [AIR 1986 SC 1557] and Godrej Soaps Pvt. Ltd. [1986 (26) E.L.T. 465 (SC) = AIR 1987 SC 175] and finally in the case of Navinchandra Co. v. U.O.I [1987 (29) E.L.T. 492 (SC) = AIR 1987 SC 1794], it is now settled that holders of additional licences were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted is settled, the importer should not be penalised, observed that the authorities concerned will decide the contention by taking into consideration all the facts and circumstances of the case, including the claim of bona fide import made by the importers. Shri Mehta also invited our attention to the decision of the Supreme Court in Civil Appeal Nos. 4445 and 4446 of 1988 delivered on December 16, 1988, where the order of confiscation and payment of redemption fine was set aside as the import was made bona fide in pursuance of the orders passed by the Court. Shri Mehta submitted that the facts and circumstances of the present case leave no manner of doubt that the import of marble slabs on March 25, 1987 was bona fide and therefore the order of confiscation and imposition of redemption fine in lieu thereof should be set aside. Shri Mehta requested that instead of remitting the matter back to the Customs Authorities for examining the question, it is desirable that the issue should be decided in the present proceedings to avoid multiplicity of litigation and further delay and expenses to both parties. Shri Sanklecha, learned counsel appearing on behalf of the respondents, very fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners from Justice Pratap enabled the petitioners to import all items except those which were specifically banned. The decision in favour of the petitioners was upheld right upto the Supreme Court. The authorities made the endorsement ignoring the decision of Justice Pratap but by referring to the decision in Raj Prakash Chemicals' case. Subsequently, the Department changed the endorsement and the fresh endorsement was made in accordance with the decision of Justice Pratap. The petitioners were, therefore, told that whatever may be the decision of the Supreme Court in Raj Prakash's case they are free to import goods which are not specifically banned. In these circumstances no fault can be found with the petitioners for importing marble slabs even assuming that the import was not in accordance with the ratio laid down by the Supreme Court. It cannot be overlooked that the right to import as well as which items can be imported was not settled till the decisions of the Supreme Court and the consistent judgments delivered by this Court permitted the importers to import all items except those which were specifically banned. In these circumstances we cannot accede to the submission of Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the order of confiscation dated December 4, 1989 is set aside and the respondents are directed to refund the amount of redemption fine of Rs. 28,260/- to the petitioners. The amount to be refunded within eight weeks on the petitioners complying with the requisite procedure for refund. The appellants shall pay the costs of the respondents. Appeal No. 1047 of 1987 is allowed and the order of confiscation passed by the Customs Authorities on May 19, 1987 is set aside and the authorities are directed to refund Rs. 60,000/- which was paid by the petitioners in lieu of confiscation. The amount to be refunded within eight weeks on the Petitioners complying with the requisite procedure for refund. The appellants shall pay the costs of the respondents. In Writ Petition No. 2985 of 1987 the order of confiscation dated July 11, 1987 is set aside and the petitioners are permitted to clear the goods on payment of requisite duty and also on payment of demurrage charges to the Port Trust Authorities. It is open for the petitioners to approach the Port Trust Authorities seeking relief in regard to the demurrage charges payable. The Customs Authorities shall issue detention certificate in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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