GIPOINT DEVELOPMENT LIMITED Vs. COLLECTOR OF CUSTOMS MADRAS

JUDGEMENT

(1.) WRIT Petition Nos. 10045 and 10940 of 1991 are filed by Gipoint Development Limited, Hongkong and WRIT Petition Nos. 10046 and 10939 of 1991 are filed by Hongkong Polychem Company. Both companies are incorporated under the laws of Hongkong and having offices at Hongkong. WRIT Petition Nos. 10045 and 10046 of 1991 are filed praying to issue a writ ofmandamusdirecting the respondents to permit the re-export of the goods covered by Bill Lading No. KKDU 823-801951 insofar as Gipoint Development Limited, Hongkong is concerned and No. KKDU 823-801929 insofar as Hongkong Polychem Company is concerned, being shoe uppers, without any assessment being done and without charging any duty, fine or penalty. WRIT petition Nos. 10939 and 10940 of 1991 are filed praying to issue a writ ofcertiorariagainst the orders of adjudication of the respondent dated 19-4-1991and quash the same.

(2.) THE facts inwritpetitionNos. 10045and 10940of1991areas follow :- One M/s. Stylo Footwear having office at New Bombay placed orders for import of diverse quantities of insoles for footwear with both the writ petitioners representing that they being a small-scale industry and actual user of raw materials for manufacture of footwear wanted to import the said insoles under the name "O.G.L." and requested that the goods be sent to them on sight/D.P. basis through bankers, Bank of Baroda, Bombay. Believing that representation, the petitioners in both the cases agreed to sell and accordingly supplied the goods. THE petitioner in W.P. No. 10045 of 1991 sold and supplied 298 rolls of insoles for leather footwear (made of plastic) running into 14, 843 linear meters at U.S. $ 1/- per meter (linear) in container No TKU 2611722 of B/L 823801951. In the same manner, the petitioner in W.P. No. 10940 of 1991 sold and supplied 298 rolls of insoles for leather footwear (made of plastic) running into 14843 linear meters at U.S. $ 1/- per meter (linear) in container No. KKDU 2611722 of B/L KKDU 823801051. THE documents evidencing the said export, namely bill of lading, bill of exchange were negotiated through Bank of Baroda, Bombay. When the goods arrived at Madras Port, the said importer M/s. Stylo Footwear refused to take delivery of the goods despite the fact that the said importer informed to the Bank by letter dated 2-11-1990 that they are "actual users" of the goods, that the said goods are eligible for imports under O.G.L. and that the goods imported from the petitioners are neither banned nor restricted. But the Bank did not retire the documents by making payment and consequently the goods were not unloaded atMadras Port since the petitioners felt that the importer has shown its dishonesty and as such the goods, ifunloaded, would unnecessarily be exposed to demurrage at Madras Port and that the entire investment of the petitioners would go waste and also there will be total loss of interest. THE goods which were exported by the petitioners are nothing but insoles for footwear. When the writ petitioners came to know about the fraud played by the importer, they requested that shipping company and their agents at Taipei not to unload the goods at Madras but to bring it back to Hongkong and the freight and incidental charges thereof would be paid by the petitioners. Since the captain of the vessel delayed in filing of the Import Manifest, the respondents insisted that the Manifest be filed and the goods be unloaded as they were already rummaging various goods. THE respondents therefore in their general rummaging operations insisted upon inspecting and examining the said goods and on investigation theyprima facieformed an opinion that the goods have been imported by a person who is not in existence and also initiated action against the said goods by examining the same extensively and drew samples for obtaining technical opinion with regard to the classification of the said goods. THE respondents were also of the view that the goods as declared and found on examination could not be used as "insoles for footwear" and as such would not be eligible for any concessional rate of duty and as such would require specific import licence as the same could not be covered under O.G.L. provisions of the Import Policy in force. When the petitioner companies came to know about such investigation they made a requisition on 23-11-1990 to the second respondent herein that they may be allowed to get the said goods re-exported to Hongkong agreeing to pay all charges required, i.e., the freight, rental for the containers for the purpose. THE respondents continued investigation and allowed the said goods to remain in containers. Since there was no response from the second respondent, the petitioners appointed an Advocate from Bombay instructing him to make appropriate representations of the Customs Authorities for obtaining suitable order of re-export. As no reply was for the coming to the said representations, the petitioners' Advocate wrote another letter on 7-1-1991 reminding the Central Board of Excise and Customs about the representation made earlier requesting for the same relief. THEreafter, the petitioners-companies through the said Advocate made representations at Madras before the respondents and made a request that the goods to allowed to be re-exported. By that time, a show cause notice was issued by the respondents to the Importer-Stylo Footwear as also to the Marine Container Service (South) Private Ltd., and Messrs K. Steamship Agencies Private Limited, Madras calling upon all of them to show cause as to why the goods imported by not confiscated on the ground that there was a specific misdeclaration made by the shipping company. At this stage, the petitioners have come to this court, with these allegations to direct the respondents to permit the re-export covered by each of the bills of lading.

(3.) THE facts of other two writ petitions are almost similar.