SHA RIKABDOSS BHAVARLAL Vs. COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) THIS is an appeal from the judgment of Rajagopalan, J. , dismissing W. P. No. 452 of 1958 filed by the Appellant for the issue of a writ of certiorari to quash the order passed by the Collector of Customs, Madras, on 10th March 1958 confiscating certain goods imported by the appellant on the ground that the goods were imported without a valid licence in contravention of S. 3 of the Imports control Order, 1955 read with sub-sec (2) of S. 3 of the Imports and Exports control Act, 1947, and, therefore, an offence under S. 167 (8) of the Sea Customs act had been committed.

(2.) THE main facts are not in dispute. They can be gathered from the affidavit of one Sirdarmull, the authorised agent of the appellants, Sha Rukadas Bhavarlal. Sirdarmull was also the agent for other persons carrying on business similar to that of the appellants. The appellants held a licence granted by the Government of india under the Imports and Exports Control Act, 1947, authorising them to import musical instruments and parts thereof, all sorts. This licence was converted on their application to a license for the import of electric insulations, etc, excluding 38-11 face value restricted items. The approximate value of the goods which could be imported was fixed at Rs. 1000. There was an endorsement by the Assistant controller relating to this conversion which ran thus : "the import of these goods is subject to the restrictions mentioned in cl. 6 of S. 2 of January-June 1957 policy. " the material part of that column is as follows : "not more than 7 1/2 per cent of the face value of quota licence or Rs. 500 whichever is higher can be utilised for the import of adhesive tapes. " the relevant item of the Indian Tariff Code schedule is item 38 : "electric insulations including presspahn paper which fall under item No. 45 of the First Schedule to the Indian Tariff Act, 1934, but excluding ebonite casa, tubes and sheets. " in the Index a large number of electric insulations of different varieties are mentioned as covered by this item 38. They include among others : (1) Adhesive tapes, (2) Black insulating tapes, (3) Cotton insulating tapes, (4) Glass silk tape (5) rubber tapes (6) impregnated tapes. In November 1957 the appellants placed orders for import of black insulating tape under the converted licence of the total value of Rs. 999. The goods arrived at the Madras port in December 1957. The Bill of entry in respect of the goods was filed on 18th December 1957 along with the licence and other papers for clearing the consignment. But the Customs authorities raised objections on the ground that the said black insulating tape fell under the category of adhesive tape which could not be imported under the said converted licence. The Assistant Collector of Customs called upon the appellant to show cause why the goods should not be confiscated and penalty imposed, as the goods fell under the face value restrictions of which import was prohibited under the licence. The petitioners submitted their explanation on 30th January 1958 and 7th February 1958 pointing out that black insulating tape was given as an item different from adhesive tape was given as an item different from adhesive tape in the index and that was the view taken by the customs authorities when an Enquiry was made in that behalf. The Assistant Collector sent up the papers to the Collector of Customs who passed the order sought to be quashed on 10th March 1958. The following portions of the order are material :

(3.) IT appears from the record that though the appellants themselves had not asked for clarification, other businessmen had asked for such clarification and this is admitted in the counter-affidavit filed by the Assistant Collector of Customs, appraising Department. There is also an admission that the practice was to consider black insulating tape as separate from adhesive tape till about, december, 1957 when there was a change in the practice. In the affidavit filed in support of their writ petition, it was alleged that both prior and subsequent to the impugned order of the Collector of Customs, black insulating tape had been allowed to be cleared under licence similar to the licence held by the appellants. By reason of the discrimination to the prejudice of the appellants, it was contended that Art 14 of the Constitution of India was contravened. The answer to this charge was