RAJNISHKUMAR TULI POPRIETOR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Since common issues of facts and law are involved in both these petitions and since both the petitions are heard together, the same are being disposed of by this common judgment and order.

(2.) Special Criminal Application No. 1038 of 2007 is filed by Rajnishkumar Tuli, proprietor of M/s. Sumit Wool Processors and Special Criminal Application No. 1041 of 2007 is filed by Ruchit Tuli, proprietor of M/s. R. S. Enterprises praying for quashing and setting aside Criminal Case Nos. 2 & 1 of 2007 respectively pending before the learned Additional Chief Metropolitan Magistrate's Court at Ahmedabad (for short 'Metropolitan Magistrate'). Both the petitioners have also prayed for issuance of writ of mandamus and/or certiorari and/or any other writ, order or direction quashing and setting aside the orders dated 23.04.2007 and 14.05.2007 passed by the learned Metropolitan Magistrate in Criminal Case Nos. 2 & 1 of 2007. In pursuance of an amendment granted by this Court on 01.06.2007, the petitioners have also made additional prayer for issuance of writ of mandamus and/or writ of prohibition and/or any other appropriate writ, order or direction declaring Section 108 of the Customs Act, 1962 ultra vires to Article 14 of the Constitution of India to the extent that it requires person residing far away to attend to a summons to give evidence or to produce documents issued under Section 108 of the Customs Act, 1962.

(3.) It is the case of the petitioners that they had done business with M/s. Krishna Trading Company, M/s. Nirmal Polyester Pvt. Ltd., M/s. Meenu Exim Pvt. Ltd. and M/s. Pradeep Kumar Nirmal Kumar on High Seas sale basis. The petitioners had received full payment of all the goods sold on High Seas sale basis. It is also their case that once the goods are sold to the Indian buyer, it is the duty of the buyer to comply with the custom provisions and to pay the custom duty and/or to fulfil the terms and conditions under which the goods are being imported. The petitioners had nothing to do once the goods are sold on High Seas. It is also their case that the respondent No. 2 had initiated inquiry against M/s. Krishna Trading, M/s. Nirmal Polyester Pvt. Ltd., M/s. Meenu Exim Private Ltd. and M/s. Pradeep Kumar Nirmal Kumar inter alia alleging that they have diversed the duty free Polyester Yarn imported against advance licences. The petitioners were called for recording evidence by issuing summons under Section 108 of the Customs Act, 962 in connection with inquiry initiated by the respondent No. 2. The petitioners gave reply to the respondent No. 2 that because of high blood pressure and high sugar, the petitioners were unable to travel to Ahmedabad. However, they have shown their willingness to appear before the authority at Ludhiana D1R office. The petitioners also made available all the documents and accounts to the respondent authority and they have also shown their willingness to provide other documents that may be called for.