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TMI Blog1960 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... included in appendix XXXV to the Policy Book for June 1956". The petitioner had also obtained licence dated June 5, 1956. In that licence the description of the goods is "other office machines, i.e. dictating machines" and also tape and wire recorders for office use". In both the licences a reference is made to "I..T.C. Schedule" and the serial number. In the first licence serial number is 65 (6) (a) (iii) /V. In the second licence the serial number is 65 (6) III/V. On October 25, 1957 the petitioner imported 22 cases of tape recorders of the value of Rs. 24,640. The goods had been shipped from Holland and arrived in Bombay on or about October 25, 1957. 3.By a show cause memo dated November 20, 1957 it was stated that the import licence produced was not valid for the reasons mentioned in clause 2 of the memo and a written explanation was invited from the petitioner and he was also notified to clearly state in the written explanation whether he wished to be heard before the case was decided by the adjudicating officer. The petitioner submitted his explanation dated November 20, 1957, and was given a personal hearing on November 21, 1957. The matter was then admittedly adjourned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of his argument that it was permissible to import completely assembled tape recorders under a licence containing description of the goods as mentioned in item 65 (6) of part V of I.T.C. Schedule. Having regard to the contents of the licence dated July 4, 1956 and June 5, 1956 as also clause (d) in the remarks column against item 65 (c) (a) (iii) in the Policy Book it would be impossible for the respondent No. 1 to contend that completely assembled tape recorders could not be imported on a licence issued as under serial number 65 (6) (a) (iii) of part V of I.T.C. Schedule. 7.The petitioner's contention throughout was that the goods imported by them fell in this item 65 (6) (a) (iii) and the licence dated July 4, 1956 was valid for importation of tape recorders of the petitioner. 8.Mr. Mehta for the petitioner has argued that in the whole of the impugned order the above contentions of the petitioner have not been noticed or dealt with and the respondent No.1 has not applied his mind to relevant contentions. Mr. Mehta has further argued that the only finding and the reasoning of the respondent No. 1 in the order is as follows:- "the goods imported by the petitioner were comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh arguments. But they urged that they would produce the full correspondence leading to the issue of the licence in question and requested that the case be adjudicated after scrutiny of the correspondence. The importers did not produce the correspondence despite the fact that they were reminded on 12-12-1957 and 2-1-1958 for the same. As there is no response from the importers so far, the case warrants adjudication ex-parte as it cannot be kept pending for an inordinate period. The goods imported are complete Tape Recorders assessable under Item 73 of the I.C.T. corresponding to Sr. No. 78/V of the I.T.C. Schedule. The licence produced cannot therefore, be accepted. The clearing Agents explanation is therefore not satisfactory. As the importers have no valid licence, the goods are deemed to have been imported in contravention of the Import Control Order No. 17/55 dated 7-12-1955 issued under Section 3 of the Imports and Exports (Control) Act of 1947. The importers have thus committed an offence attracting the provision of Section 167 (8) of the Sea Customs Act." 11.It is apparent to me that the only finding which the respondent No. 1 has made in the above contents of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of evidence would be tendered to the Department on behalf of the petitioner. The Department had at the request of the petitioner (made by the letter dated November 27, 1957) extended the time for the purpose till December 17, 1957 and had also extended time in January, 1958. Though the order was made on January 31st, 1958 the respondent had failed to consider the representation submitted to the Assistant Collector of Customs along with the petitioner's letter dated January 13, 1958. 29th June 1960 14.Mr. Mehta has contended that the representation contains fresh materials which had never been put forward at the personal hearing given on November 21, 1957 and the material is such as must of necessity affect the views of the Tribunal as regards mens rea involved in the offence for which charge was laid against the petitioner. He further contends that in consequence the fine and penalty to be levied against the petitioner would be to a large extent different from the fine and penalty levied by the impugned order. 15.In support of his contention that he was entitled to a personal hearing before the respondent No. 1, Mr. Mehta has relied upon the decision of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold that having regard to the facts involved in that case it was not necessary that the petitioners should have had a personal hearing before M.R. Ramachandran who had given decision in that case. Mr. Shah has relied upon observations made by me in that decision with certain emphasis and argued that the petitioner in this case was not entitled to a hearing before M.G. Abrol because the petitioner was in law not entitled to that opportunity and in any event had a personal hearing before A.V. Venkateswaran on November 21st, 1957. It must be pointed out that the procedure to be followed so as to comply with rules of natural justice depends upon and varies according to circumstances of different cases as also rules of procedure prescribed. Generally stated it is absolutely essential that a party against whom investigations are held must have opportunity to put forward its case in such a manner as the Tribunal giving its decision has before it the whole of the case of the party. 18.As I have already discussed above in this case M.G. Abrol has failed to consider the case of the petitioner altogether. It appears to me that this is the direct result of failure to afford a personal heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrol (Order) and Act. It is further by reference to the provisions of Section 183 of the Sea Customs Act pointed out in that decision that under the section upon adjudicating confiscation it is the duty of the officer to give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. In the result it is observed that it must be presumed that the Legislature gave discretion to the officer on the footing that it must be exercised on certain rational basis consistent with the avowed object of the Statute. The officer was bound to apply his mind to the facts of each case before him as also the object of the Statute. The option contemplated under Section 183 which is given to the owner of the goods must be real and not unreasonable or absurd or illusory. Having regard to the proportionate discrepancy in the value of the goods and the fines imposed in that case it was held that the Collector had failed to apply his mind to the facts and that there was no rational relation between the value of the goods and the fines imposed. 22.In this case the invoice value of the goods of the petitioner is admittedly Rs. 24,640. M.G. Abrol in his affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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