RAJA AGENCIES Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners are letter of authority holders of two REP Import Licences of Export Houses, for import of raw materials, components and consumables covered by Appendix 10, Entry No. 1 of Import Policy, April 1981-March 1982. The petitioners placed an order for supply of 300 M.T. of Acid Oil (Raw material for soap) with M/s. Hardial Enterprises Private Limited, Singapore, which was confirmed by their letter dated 2.1.1981. The goods arrived by ship on 2.5.1981. The petitioners filed the bills of lading Nos. 6, 7, 8 and 10 dated 30.3.1981. The customs authorities did not release the goods but issued a show cause notice stating that though the ship's manifest shows that the goods loaded are coconut acid oil, in view of the fact that the goods are imported from Singapore where "Palm" is grown in abundance, the imported oil should be palm acid oil which is a canalised item. It was also stated that though the bills of lading are dated 30.3.1981, the goods were not actually put on board the ship till 14.4.1981 and therefore the bills of lading were pre-dated to cover the import of the goods within 1981-82 Import Policy. The petitioners submitted their explanation but it was not accepted and by order dated 12.6.1981 it was held that the import is unauthorised and redemption fine of 30% on the CIF value and also a personal penalty of 10% on CIF value of the goods was levied. The petitioners preferred an appeal to the 4th respondent in which they inter alia contended that they had imported only acid oil and not palm acid oil. In any event they are protected by para 222(3) of Appendix 10 of 1981-82 Policy and they are not in any way responsible and they had no knowledge of pre-dated bills of lading. The appeals preferred by the petitioners were rejected on 3.10.1981 on the ground that taking advantage of the transitional arrangements provided under [Para] No. 222(3) of the 1981-82 Policy the importers should have opened an irrevocable letter of credit, and in the instant case it was not done. Consequently both the imposition of redemption fine and the personal penalty were confirmed by the 4th respondent. Against this order, the present writ petition is filed praying for issue of writ of certiorarified mandamus to quash the order dated 3.10.1981 passed by the 4th respondent and directing refund of the amount paid by them.

(2.) Mr. Habibullah Badsha, learned Counsel appearing for the petitioners contends that there is no allegation made against the petitioners that they were guilty of fraud or that they had acted in such a manner as to defeat the provisions of any law. When such is the petition [position ] and when they had bona fide acted on the bills of lading issued by the shipper which bore the date 30.3.1981, and wanted the clearance of the goods, .the question of imposition of penalty would not arise. Elaborating this contention, it is stated that the imposition of penalty would arise only when the transaction has criminality attracted to it and that unless it is established that the importer had a criminal mind(mens rea) no question of penalty would arise. In support of this contention, the learned Counsel relies on the judgment of the Supreme Court reported in.

(3.) Thiru Narasimhan, learned Counsel appearing for the respondents, vehemently opposes the contentions of the petitioners. He states that admittedly the petitioners had not imported goods during the period covered by Import Policy 81-82 and consequently unless the import is allowed by the subsequent policy, the confiscation of the goods and imposition of penalties are in order. He further states that the petitioners are not entitled even to the transitional provision in para 222(3) of 1981-82 policy, since on their own showing, the petitioners have not opened irrevocable letters of credit, prior to 313.1981. He relies upon a passage occurring in Payne & Ivaay's carriage of goods by Seta, Eleventh edition, at page 62 wherein Bill of Lading is described thus: