9911796707
TMI Blog1996 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... as liable for absolute confiscation under Section 111(d) of the Customs Act, 1992. A further penalty of Rs. 10,000/- was imposed under Section 112(a) of the Customs Act. 3.The show cause notice under Section 124 of the Customs Act, 1962, dated 8-2-1996 was issued to the appellant who brought the following five Nos. Fire Arms along with him as accompanied baggage on 31-1-1996 from London : S. No. Calibre Make Description S. No. of the arm 1. 12 Bore BERETTA Over Under Shotgun S/N L 75976B 2. 12 Bore BERETTA Over Under Shotgun S/N H 06253 B 3. 12 Bore BERETTA Over Under Shotgun S/N H 06681 B 4. 12 Bore BERETTA Over Under Shotgun S/N H 04409 B 5. 12 Bore BRNO Rifle NVM 56181 Since the value of the goods was not known, and their import was not permissible under Baggage Rules, the goods brought by the appellant the same were detained under D.R. No. 107139, dated 31-1-1996. The appellant in his letter dated 5-2-1996 addressed to the Addl. Commissioner of Customs has inter alia claimed that as per office order dated 13-7-1993, issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.The appellant sent a reply to the show cause notice on 19-2-1996 which was received by the Department on 20-2-1996. The Deputy Commissioner of Customs (Airport) Madras by Order No. O.S. 377/96-Air, dated 18-3-1996 passed the impugned order. The Deputy Commissioner of Customs formulated four points for the decision which are listed below : Whether the subject goods can be cleared without a valid import licence, in terms of the present Import-Export Policy; Whether the subject goods are exempted from payment of Customs Duty; Whether the valuation preposed in the show cause notice can be adopted; and Whether Shri Karuppan is liable for any personal penalty. On point No. 1 it has been held that the import of fire arms even by renowned shooters requires an import licence in terms of the Import-Export Policy and import of fire arms even as accompanied baggage requires a licence and import of fire arms of Baggage Rules. On point No. 2, it has been held that the claim made by the appellant that the goods are exempted from payment of duty is not sustainable and he is not entitled for the benefit of Notification No. 146/94 as claimed by him. On point No. 3, since the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant also filed an interim application for an interim direction directing the respondents to release all the guns to the appellant covered by the voluntary Detention Receipt Number 107189, dated 31-1-1996 pending disposal of the writ petition. 7.Mr. P. Namasivayam, the Assistant Commissioner of Customs, Airport, Madras (1st respondent) filed a counter affidavit denying the allegations. In para 10, he has stated that beyond making the order of valuation and sending the same for valuation to the Air Cargo Complex and getting clarification from the Joint Director General, Foreign Trade, Madras as to the requirements of Import Licence for fire arms, he had nothing to do with the appellant's case and all other averments relating to him to the contrary are false and false to the knowledge of the appellant. He has further stated that he has only discharged his duties in accordance with law and the same not having found favour with the petitioner, he has indulged in villification which are wholly not true. 8.The 2nd respondent K. Umesh filed a separate counter affidavit denying the allegations. He stated that he has issued the show cause notice to the appellant on the direction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials placed before him and the arguments of the counsel appearing on either side, rejected the contention of the appellant that the earlier clearance will bind the authorities while ordering the release under the current Rules and Regulations and also rejected the decision cited by the appellant regarding the binding nature of the earlier clearance as irrelavant, because they related to the decision of higher authorities binding on the lower authorities when they deal with the identical matters and identical regulations. Such contention of the appellant was also not countenanced by the learned Single Judge in view of the decisions reported in Chandigarh Administration v. Jagjit Singh [1995 (1) SCC 745]. Harpal Kaur Chahal v. Director, Punjab Instructions [1995 Supp. (4) SCC 706] and Gurusharan Singh v. New Delhi Municipal Committee (AIR 1996 SC 1175). Learned Single Judge also held that the current Rules do not permit the appellant to import weapons without a valid licence and therefore, there is no question of permitting the appellant on any other ground like past practice. Learned Single Judge after examining the Rules and Regulations cited by the respondent, held that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Board approved the clearance of the fire arms and ammunition as baggage and held that the appellant's import by baggage would attract only 35% duty and directed the excess collection of duty. Since then, in accordance with the said decision, thrice guns and several times ammunitions were imported as baggage and unaccompanied baggage and were cleared against payment of concessional rate of duty. Mr. Karuppan says that the directions issued by the Customs Board was pursuant to statutory powers under Section 129D of the Customs Act. Therefore, he submits that the guns imported by him should be clear without import licence and on payment of concessional duty. 18.It is submitted by Mr. Karuppan that on landing he declared the guns to the Assistant Commissioner and made a voluntary deposit of his fire arms as he had lost all the 8 original fire arms licence issued by the local Police, and the customs notification etc., at the Frankfurt Airport, offering to seek their clearance the next day against production of the duplicate licence which was under preparation at the Commissioner's office at Madras. On 2-2-1996 the appellant requested the respondents to release the fire arms on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant viz., clay targets used for target shooting and clay target launchers imported by the appellant as unaccompanied baggage and therefore, the said position runs counter to the practice hitherto in vogue and all statutory notifications that are in force. 20.The appellant further contended that the learned Single Judge has failed to consider that the adjudication order did not even consider that the earlier clearance was illegal, if it were to be so as required by the ratio of the decision of the Supreme Court reported in Mohinder Singh Gill v. The Chief Election Commissioner (AIR 1978, SC 851), the impugned order and the order of the learned Single Judge have to be set aside. It is also stated that none of the respondents had even claimed that the earlier clearance approved by the Finance Ministry and the Customs Board was not binding on them and was illegal in the counter affidavits. They cannot plead so on grounds of estoppel and on the principle of natural justice. While so, the learned Single Judge has accepted the argument of the learned Senior Standing Counsel for the respondents and held that the earlier orders were illegal. 21.According to the appellant, Rule 34 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conflict with the binding reasons of the Supreme Court laid down in the following cases regarding alternative remedy, reported in Calcutta Discount Co. Ltd. v. Income-tax Officer (AIR 1961 SC 372); A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani [1983 (13) E.L.T. 1327 (S.C.) = AIR 1961 SC 1507]; Carl Still G.M.B.H. v. State of Bihar (AIR 1961 SC 1615); Collector of Customs, Cochin v. M/s. A.S. Bava [1978 (2) E.L.T. (J 333) (S.C.) = AIR 1968 SC 13]; K.S. Papanna v. Deputy Commercial Tax Officer (19 STC 506); Beharilal Shyamsunder v. Sales Tax Officer (17 STC 508); Collector of Customs v. K. Ganga Shetty (AIR 1963 SC 1319); S.R. Tewari v. The District Board, Agra (AIR 1964 SC 1680); Sales Tax Officer v. M/s. Shiv Ratan G. Rohatta [AIR 1966 SC 142 = 1965 (3) SCC 71]; L. Hirday Narain v. Income Tax Officer, Bareilly (AIR 1971 SC 33); M/s. Shiv Shankar Dal Mills v. State of Haryana (AIR 1980 SC 1037); Assistant Collector of Central Excise v. Dunlop India Ltd. [1985 (19) E.L.T. 22 (S.C.) = AIR 1985 SC 330]; Dr. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur [1987 (32) E.L.T. 8 (S.C.) = AIR 1987 SC 2186] and (AIR 1989 SC 2186). 23.Per contra, Mr. V.T. Gopalan, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Judge held that the writ petition without availing the alternative remedy available is maintainable for the reasons stated in his order. However, the learned judge rejected all other contentions raised by the appellant herein on merits. 26.When the writ appeal was moved before us by the appellant/party in person, we ordered notice to the respondents through their Standing Counsel. The learned Senior Standing Counsel for the respondents at the time of hearing raised the question of maintainability of the writ petition. The learned Senior Standing Counsel also cited the above mentioned case laws. The appellant has also cited the decisions mention supra in support of his contention. 27.Mr. V.T. Gopalan argued with vehemence that as there is an alternative remedy available to the appellant, he should be directed to approach the appropriate authority under the Customs Act. Declining to entertain the writ patition under Art. 226 of the Constitution, when effective and efficacious alternative remedy is available to the petitioner, is no doubt a self-imposed restriction in order to ensure that the laws governing the subject and the remedies provided thereunder are followed and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as import of gifts without a Customs Clearance Permit (CCP). In any other case, Customs Clearance Permit (CCP) shall be required and may be issued, on "Application, by the licensing authority after considering the merits of the case".' Chapter I of the Foreign Trade (Development and Regulation) Act, 1992 deals with the power of the Central Government to make orders and announce the Export and Import Policy. 29.Section 3 of the Foreign Trade (Development and Regulation) Act, 1992, deals with the power of Central Government to make provision relating to imports and exports, which reads thus : "3. (1) The Central Government may by order published in the Official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. (2) The Central Government may also, by Order published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exeptions, if any, as may be made by or under the order, the import or export of goods. All goods to which any Order under sub-section (2) applies(3) shall be deemed to be goods t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oters. - Renowned shooters may be granted licences for import of arms and ammunition for their own use. An application may be made in the form given in Appendix VII to the Director General of Foreign Trade supported by the recommendation of the Department of Youth Affairs and Sports, Government of India. Import of arms and ammunition by renowned shooters as gifts may also be allowed under this provision. In case of gifts, a customs clearance permit may be issued." Para 56 runs thus : "56.Gifts of Consumer or other goods. - In terms of the provisions contained in paragraph 34 in Chapter V of the Policy, an application for grant of customs clearance permit for import of gifts of items appearing in Negative List of Imports may be made to the Director General of Foreign Trade, New Delhi in the form given in Appendix VII supported by the following documents : (i) Donor's letter in original; and (ii) Proforma invoice." 34.In Application has to be made in the form given in Appendix VII of the Hand Book. The applicant has to make a declaration as per the format. The note appended to Appendix VII reads as follows : "Documents to be submitted along with the application : Original c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of clearance of the goods,(b) produces a certificate to the Assistant Collector of Customs from an officer not below the rank of a Director in the Sports Authority of India indicating, The name and address of the importer and the description,(i) quantity and value of the said goods; and That the said goods are required for the purpose specified(ii) in condition (a) above. The said goods are imported into India by a sports person of(a) outstanding eminence for training purposes; The importer, at the time of importation of the goods,(b) produces a certificate to the Asstt. Collector of Customs from an officer not below the rank of a Deputy Secretary in the Department of Youth Affairs and Sports, Ministry of Human Resource Development, Government of India indicating - (i) the description, quantity and value of the said goods; (ii) that the importer is a sports person of outstanding eminence; and (iii) that the said goods are essential for the training purposes of the importer and recommends grant of the exemption." 37.The Baggage Rules, 1994 (Notification No. 11/94-Cus. (N.T.), dated 1-3-1994) was issued in exercise of the powers conferred by Section 79 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the above Rules, Regulations, Notifications and the Policy of the Central Government would go to show that the requirement of the licence has no where been dispensed with. 40.The appellant contended that since the respondents on a few earlier occasions have cleared the goods duty free or cleared the goods on certain occasions against payment of concessional rate of duty, the respondents are bound to release the goods without insisting upon the production of licence by the appellant, who is a sports man of outstanding eminence. The respondents cannot take a different view from the long standing practice resulting in confiscation and levy of penalty. This argument was opposed by the learned Senior Standing Counsel for the respondents. Mr. V.T. Gopalan contended that the reliance placed by the appellant upon the earlier order by which fire arms brought by him were released, can be of no help to the appellant since the earlier orders of release were an administrative one and were not the result of a quasi-judicial adjudicatory process. Even otherwise, according to the learned Senior Standing Counsel, orders of authorities and the Tribunal cannot be equated to precedent. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution that the wrong act must be extended to him as well in order to satisfy the provisions of Article 14. The equality before the law does not mean that there must be equality in illegality. The statute compels us to take the view that we took and no action done without authority interpreting the statute in a wrong manner can be claimed to have conferred any benefit on the petitioner before us which he can by any strength of imagination claim to have conferred a right on him which would compel us to issue a writ by the exercise of our extraordinary jurisdiction. We, therefore, negative this contention as well". 44.In 1995 Supp. (4) SCC 706, the Supreme Court has held as follows : "It is next contended that along with the appellant two more candidates were selected and were appointed and their appointments were upheld by the High Court. Denial to bar is violative of Article 14 of the Constitution. We find no force in the contention. The view of the High Court is obviously illegal and the judgment rendered would not form the ground for our holding that the others who got the benefit by illegal orders will be extended in favour of other candidates though illegally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law - indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law - but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner it is found that the petitioner's case is similar to the other persons' case. But then why examine another persons' case in his absence rather than examining the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are sanctioned by law in their favour on principles of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. None of the 98 stall-holders were implemented as parties to the writ petitions. The appellants questioned the validity of the allotment of 98 shops on concessional rates, without trade zoning restrictions in favour of the stall-holders of Panchkuain Road, but they were primarily interested that same concessions in respect of licence fee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fire arms as baggages and since the adjudicatory authority has not stated any where in the impugned order that the earlier orders of their ultimate superiors were illegal and that they are not binding on it, the writ appeal is liable to be allowed on this ground loses all its efficay and is not valid as under the present Rules the appellant has to obtain import licence and comply with several other formalities for claiming the goods as gift. No letter from the donor is produced. The argument of the appellant that the 5th respondent has not dealt with this aspect of the matter and does not deny any of the allegations in his counter affidavit is not correct. We have gone through the counter affidavit filed by the respondents. They have specifically denied the allegations wherever it is necessary. 49.The contention of the appellant that when the goods were voluntarily declared, the same is not liable for confiscation or levy of penalty as laid down in the judgment reported in K.R. Ahmed Shaw v. Addl. Collector of Customs, Madras [1981 (8) E.L.T. 153 (Mad.)] is also liable to be rejected. The declaration, if any, made by the appellant can only be referable to the contents of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies on their part would not be in a position to know the requirements of the appellant as to the number of arms for his training and competition purposes unless the same is certified by the Department of Youth Affairs and the Sports Authority as required under the Export and Import Policy and as such, there is nothing wrong in the adjudicating authority not exercising the discretion as to permit the redemption of the confiscated arms by the appellant upon payment of redemption fine as contemplated under Section 125 of the Customs Act. Fire arms being in the negative list, the adjudicating authority may, in his discretion, allow redemption and that the discretion could not be exercised by taking into account the illegal import of fire arms, which cannot be easily permitted to be redeemed as a matter of course since the security is involved. The appellant has not established his requirement of fire arms in the manner known to law. It is presumably for this reason the appellant has turned down the aforesaid offer to get the requisite licence at least now. The appellant had stated that the goods were gifted to him by his close associate. If so, nothing prevents the appellant from obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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