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TMI Blog1960 (7) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... The goods were accordingly imported into India by P. Bhagwandas of Hindustan Engineering and Trading Co. 2.P. Bhagwandas tendered to the Customs Authority the bill of entry "cash No. 981" dated 3rd September, 1958 towards clearance of the consignment. The licence referred to in the bill of entry was "No. 973117/57/CCI/HQ/NQQ, dated March 18, 1958" issued in favour of "Messrs Hindustan Engineering and Trading Co. carrying on business at 80 Kaval Cross Lane, No. 3, Bombay." 3.The goods were allowed clearance through clearing agents. One Pyarelal J. Munshi attended to the work of clearance of these goods. All the 52 cases were delivered to the petitioners who paid over the whole of the balance of the price due to sellers M/s. B.N. Mehta and Co. 4.It was upon enquiries discovered that there was no concern of that name of Messrs. Hindustan Engineering and Trading Co. carrying on business at the address contained in the licence. Now, it is necessary to note in this connection that the application for licence was made on behalf of a partnership firm carrying on business in the firm name of Messrs. Hindustan Engineering and Trading Co. at the above address. The partners of the firm a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19, 1958. According to the petitioners the clearance of these goods by P. Bhagwandas after importation thereof under the licence did not constitute violation of any of the restrictions and prohibitions imposed under the Import Trade Control Order, 1955, or the Imports and Exports Trade (Control) Act, 1947. According to the petitioners at the highest the clearance of the goods by P.B. Bhagwandas constituted a breach of one of the conditions of a valid licence and accordingly did not constitute any breach of the provisions of the Order, or the Act. According to the petitioners in the circumstances there was no jurisdiction in the 1st respondent to confiscate the goods as he purported to do under the provisions of "Section 167(8) of the Sea Customs Act read with Section 3(2) of the Imports and Exports Trade (Control) Act, 1947." The petitioners also rely upon the fact that in spite of requests made on their behalf the 1st respondent failed to tender for cross-examination by the petitioners Rampyarelal J. Munshi, who had given his statement at the preliminary enquiry stage. The petitioners also complain that reliance is placed in the impugned order about the illegal activities of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same subject to one or more of the conditions stated below : (i) that the goods covered by the licence shall not be disposed of, except in the manner prescribed by the licensing authority, or otherwise dealt with without the written permission of the licensing authority or any person duly authorised by it ; (ii) that the goods covered by the licence on import shall not be sold or distributed at a price exceeding that which may be specified in any directions attached to the licence ; (iii) that the applicant for a licence shall execute a bond for complying with the terms subject to which a licence may be granted. * * * *(2) (3) It shall be deemed to be a condition of every such licence, that : (i) the goods for the import of which a licence is granted shall be them property of the licensee at the time of clearance through customs, unless the said licence is covered by a letter of authority issued by the licensing authority. (ii) the licensee shall comply with all conditions imposed or deemed to be imposed under this clause." 10.Mr. Sorabjee has argued that under clause 3 of the order, importation is sanctioned in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en imported contrary to restrictions. The restrictions are as mentioned in Section 3 of the Act and Clauses 3 and 5 of the order. 15.Under Clause 3 of the order, it is clearly provided that no person shall import any goods of the description specified in Schedule I, except in accordance with a licence. In the context the words "no person" (must be held to) refer to an importer and mean "no importer". It should accordingly be necessary for an importer to hold a licence for importation of goods specified in Schedule I of the order. The act of import of such goods by an importer without a licence would directly contravene the provisions under Clause 3 of the order. The goods, of the description specified in Schedule I, imported by an importer who does not hold a licence, must be held to have been imported in contravention of Clause 3 of the order. For making such a finding, it would be entirely unnecessary to rely upon the conditions contained in a licence. Even an importer is prohibited from importing goods mentioned in Schedule I except in accordance with a licence. The licence itself also contains conditions so that importation by an importer holding a licence after committing br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice at all and does not call for any intervention by the Court on any other grounds in this matter. 19.In this connection Mr. Sorabjee has relied upon the decision of the Calcutta High Court in the case of C.T.A. Pillai v. H.P. Hohia, A.I.R. 1957 Cal. 83. That was a revisional application against an order of discharge of an accused in respect of a prosecution for an offence under Section 5 of the Imports and Exports (Control) Act, 1947. The case of the prosecution was that the importer and the licence holder in that case was violating the conditions of the licence and was selling the goods in contravention of conditions mentioned in that behalf in his licence. In construing the provisions of Section 5 of the Act it was held that the section penalises only contravention of any order made or deemed to have been made under the Act. It was further held that it was difficult to hold that the licence or the conditions in the licence amounted to an order as mentioned in section. A contravention of conditions imposed by the licensing officer could not prima facie be regarded as contravention of the notified order itself. Having regard to that finding the order of discharge was upheld and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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