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TMI Blog1991 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... 91and quash the same. 2.The facts in writ petition Nos. 10045 and 10940 of 1991 are as follow :- One M/s. Stylo Footwear having office at New Bombay placed orders for import of diverse quantities of insoles for footwear with both the writ petitioners representing that they being a small-scale industry and actual user of raw materials for manufacture of footwear wanted to import the said insoles under the name "O.G.L." and requested that the goods be sent to them on sight/D.P. basis through bankers, Bank of Baroda, Bombay. Believing that representation, the petitioners in both the cases agreed to sell and accordingly supplied the goods. The petitioner in W.P. No. 10045 of 1991 sold and supplied 298 rolls of insoles for leather footwear (made of plastic) running into 14,843 linear meters at U.S. $ 1/- per meter (linear) in container No TKU 2611722 of B/L 823801951. In the same manner, the petitioner in W.P. No. 10940 of 1991 sold and supplied 298 rolls of insoles for leather footwear (made of plastic) running into 14843 linear meters at U.S. $ 1/- per meter (linear) in container No. KKDU 2611722 of B/L KKDU 823801051. The documents evidencing the said export, namely bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to Hongkong agreeing to pay all charges required, i.e., the freight, rental for the containers for the purpose. The respondents continued investigation and allowed the said goods to remain in containers. Since there was no response from the second respondent, the petitioners appointed an Advocate from Bombay instructing him to make appropriate representations of the Customs Authorities for obtaining suitable order of re-export. As no reply was for the coming to the said representations, the petitioners' Advocate wrote another letter on 7-1-1991 reminding the Central Board of Excise and Customs about the representation made earlier requesting for the same relief. Thereafter, the petitioners-companies through the said Advocate made representations at Madras before the respondents and made a request that the goods to allowed to be re-exported. By that time, a show cause notice was issued by the respondents to the Importer-Stylo Footwear as also to the Marine Container Service (South) Private Ltd., and Messrs K. Steamship Agencies Private Limited, Madras calling upon all of them to show cause as to why the goods imported by not confiscated on the ground that there was a specific mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having been unloaded at the instance of the customs authorities there can be no intention on the part of anyone to import the goods as has been held in (AIR 1981 SC 616). It is further alleged in the affidavit that the order of adjudication is nullity and that the subject-goods cannot vest in the Central Government and that consequently no auction can be held. 6.A common Counter-affidavit is filed by the respondents in W.P. 10045, 10046/91. It is seen from the counter-affidavit that in view of the non-genuineness of the S.S.I. Certificate of the importer as also entries at SI. Nos. 48 and 172 of Appendix 2, Part-B of the Import Policy 90-93 AM, that the import of the above goods would require a valid import licence and that in the absence of the said licence, the goods were liable to be confiscated under Clause (d) of Section 111 of the Customs Act, 1962. It is further claimed in the counter-affidavit that as the goods could not be considered as insole for footwear, they were not eligible for concessional rate of duty. It is further claimed in the counter-affidavit that the wrong declaration of the goods in the manifest was violative of sub-section (2) of Section 3 of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported without a valid licence is also prohibited goods under the provisions of the Customs Act. It is further claimed that the proper persons to whom show cause notices to be issued are only the importers and the vessel owners and if clearing agents come on the scene they would also be served with the notice. It is further claimed that by issuing a show-cause notice it cannot be concluded that the department have come to any conclusion. It is further claimed in the counter-affidavit that no action can be taken by the department against the foreign suppliers, that the persons to answer the charges levelled for importing the undeclared goods or wrongly declared in the import manifest are the importers and the vessel's agents and that the adjudicating authority found that vessel's agents could [.....] held liable and ordered confiscation of the goods as the importer of the goods is a fictitious person or absconding himself probably knowing fully well the statutory actions for trying to import goods misdeclared in the manifest. It is further claimed that the goods intended for importation into India stands as such for importation and that the respondents are at liberty to take suitab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made to the Collector of Customs to re-export the goods and that further representations were made to Central Board of Customs and Excise including the telex message given to the master of the vessels not to unload the vessel. The learned Senior Counsel further contends that considering the facts of the cases on hand, it is very clear that there is no "import" or even attempt to "import". He further contends that when they found out the freud played by the said importer, the petitioners requested the shipping company and their agents not to unload the goods at Madras but to bring it back to Hongkong, that the freight and incidental charges thereof would be paid by the petitioners. According to the learned counsel for the petitioners, the show cause notice has been issued not to the petitioners who are the owners of the goods and that the order of adjudications made is illegal. The learned Senior Counsel further contends that the order of adjudication has been passed in violation of the principles of natural justice in spite of the fact that the department was made known the fact about the ownership of goods as early as November 1990. The learned senior counsel refers the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned senior counsel further contends that the petitioners herein are not entitled to invoke the extraordinary jurisdiction of this court under Article 226 of the Constitution of India and he relies on the decisions in Indo-China Steam Navigation Co. Ltd. v Jasjit Singh, [1983 (13) E.L.T. 1392 (S.C.) = AIR 1964 S.C. 1140] and in Sewpujanrai Indrasaurai Ltd. v. Collector of Customs [1983 (13) E.L.T. 1305 (S.C.) = AIR 1958 S.C. 345 : CFC (S.C.) 15] for this proposition. 9.Per Contra, Mr. R. Thiyagarajan, the learned counsel appearing for the petitioners relies that though Part III of the Constitution is not applicable to the case of foreigners, the petitioners herein can invoke the extraordinary jurisdiction claiming the action is bad in view of Article 300A of the Constitution of India. The argument of the learned senior counsel is that insofar as the petitioners continued to be in possession of the property in these cases and the petitioners who are the owners of the property in these cases want the goods to be re-exported the authorities have to apply the decisions in earlier cases on similar issues only. He further contends that the case relied on by Mr. P. Narasimhan, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not regarded as an essential element of Section 52A, the said section would be ultra vires Articles 14, 19 and 31(1) and as such, unconstitutional and invalid. We do not propose to consider the merits of this argument because the appellant is not only a company, but also a foreign company, and as such, is not entitled to claim the benefits of Art. 19. It is only citizens of India who have been guaranteed the right of freedom enshrined in the said article. If that is so, the plea under Article 31(1) as well as under Art. 14 cannot be sustained for the simple reason that in supporting the said two pleas, inevitably the appellant has to fall back upon the fundamental right guaranteed by Art. 19(1)(f). The whole argument is that the appellant is deprived of its property by operation of the relevant provisions of the Act and these provisions are invalid. All that Art. 31(1) provides is that no person shall be deprived of his property save by authority of law. As soon as this plea is raised it is met by the obvious answer that the appellant has been deprived of its property by authority of the provisions of the Act and that would be the end of the plea under Art. 31(1) unless the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituation insofar as the facts of the cases on hand are concerned. It cannot be said that the petitioners are deprived of property without authority of law. So, the result will be that the petitioners herein cannot claim any of the rights under Part III of the Constitution of India or at least for the present case under Arts. 19(1)(g), (f) and 300A of the Constitution of India. 11.The next question which has to be decided is whether a writ can [be issued] "for any other purpose". Once the jurisdiction of this court cannot be invoked under Article 226 of the Constitution of India for enforcement of fundamental rights by foreigner, the question that arises for consideration is whether it could be issued on the facts and circumstances of the cases on hand as if there is any legal right to the petitioner. The term "any other purpose" has been explained by the Supreme Court in an earlier case in State of Orissa v. Madan Gopal (AIR 1952 SC 12 ). In that case, the Supreme Court has held as follows : "...The issuing of writs or directions by the High Court is founded only on its decision that a right of the Party under Part III of the Constitution (Fundamental Rights) had been infring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us has made the most spectacular advance. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to `any person or authority'. It can be issued `for the enforcement of any of the fundamental rights and for any other purpose'. The term `authority' used in Article 226, in the context must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words `any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of adjudication. It is true that the order of adjudication has been passed without notice to the petitioners. But, as rightly pointed out by Mr. P. Narasimhan, the learned Senior Central Government Standing Counsel for department, only two persons are entitled to notice and they are only the importers and the clearing agents and the vessles' agents. Notice has been served to whom notice has to be sent, under Section 111(d) and (f) of the Customs Act. In this case, it is very clear that the goods are prohibited goods and they are liable for confiscation under Section 111 of the Customs Act. It is not essential for the confiscation of the goods as the person who is actually importing the goods is found out (sic). Considering the facts and circumstances of the cases on hand, and the provisions of the Customs Act, I am of the view that the petitioners herein are not entitled to get an order of the re-export from the hands of this Court. 13.As I have already stated, the learned counsel appearing for the department has fairly contended that no question of "import" is involved in these cases. As such, it is not necessary for us to refer to all the decisions relied on by Mr. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they are "owners" of the goods. Further, as rightly pointed out by Mr. P. Narashimhan, the learned counsel appearing for the department, the petitioners can resort to any remedy under the ordinary Civil Jurisdiction of this land against the importers for damages. Since I take the view that the petitioners have two remedies, one under ordinary civil law and another provided under the special enactment, I am not inclined to exercise the discretion in favour of the petitioners under the extraordinary jurisdiction of this Court. The Supreme Court has held in Tiaghur Paper Mills Co. Ltd. v. State of Orissa (AIR 1983 S.C. 603) that even in a case where the principle of natural justice is violated, the remedy under the special statute has got to be exhausted. In Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Limited [1985 (19) E.L.T. 22 (S.C.) = AIR 1985 S.C. 330 at P. 332] referring to the case cited supra, the Supreme Court observed as follows : "...That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Art. 226 is not meant to short-circuit or circumvent statutory procedures. It is only where sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on commodities on their being imported into or exported from the country. To constitute an import within the customs laws for the purpose of levy, it is necessary that goods be brought into a proper port of entry with an intent to unload them. The act of importation therefore implies, in the context of levy, bringing goods into an Indian Port for the purpose of discharge. There is no importation to attract customs duty if the cargo is in transit or is intended for transhipment. The goods which are brought into the country for the purpose of discharging them at an Indian Port cease to be imported goods after they are cleared for home consumption. The mere act of bringing goods into the port therefore does not constitute an importation, although unexplained it may be evidence of that fact. `If goods, however, are brought into their port of destination for the purpose of being there discharged, the act of importation is complete.' Starke J. in Wilson v. Chambers and Company Proprietary Ltd. (1925-26) 38 CLR 131. As stated by Lord Davey in Canada Sugar Refining Co. v. The Queen (1898) AC 735 (PC) in the context of the Customs Act, 1886, and the Customs Tariff Act, 1894, of Canada, 'th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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