RADHEY SHYAM RATANLAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Order of the Court is as follows :- THE Writ Petitions are for the issue of Writ of Certiorari to call for the records of the second respondent bearing C. No. VIII/10/25/89-Cus. 2/16/90 and C.No. VIII/10/25/89-Cus. 2/17/90 respectively dated 5-3-1990 and quash the same.

(2.) THE case of the petitioner is that they are the importers of Cloves - Grade I of 60 bags weighing 5000 Kgs. and 2500 Kgs. respectively. THEy entered into a contract on 25-11-1988 for the supply of cloves valued at Rs. 3, 42, 500/- and 1, 71, 250/- respectively. Invoice dated 25-11-1988 was issued, with the approval of the Department of Commerce, Colombo, Sri Lanka (Ceylon) dated 25-11-1988. THE National Chamber of Commerce of Sri Lanka also issued a certificate of origin dated 25-11-1988 for the import of 60 bags Cloves Grade I weighing 5000 Kgs. and 2500 Kgs. Payments were to be made by means of Bill of Exchange for INRS 3, 42, 500/- and 1, 71, 250/-. THE above consignment was shipped on board TTN-199 under Bill of Lading bearing No. G/04 and G/03, dated 25-11-1988, with an endorsement "Shipped on Board 25-11-1988'. THE goods arrived on 6-12-1988 vide IM. No. 433/6-12-1988. It is also the case of the petitioner that they have filed a Bill of Entry Nos. 52 and 53, dated 7-12-1988 through the Clearing Agents M/s. B.T.S. Thiraviaratnam & Sons, Tuticorin and sought clearance under OGL. A public notice was issued on 29-11-1988 according to which the import of cloves was not permitted under OGL. Prior to that the goods were under OGL and Licence was not required. As per the Import Policy 1988-91 cloves was allowed to be imported under OGL vide Appendix 6, List 8, Part II Entry 62(1). It is also the case of the petitioner that the Department has refused to clear the goods under OGL and issued a show cause notice dated 6-1-1989 and an addendum dated 22-2-1989 alleging that the abovesaid consignment of cloves which landed on 6-12-1988 was not covered by a Letter of Credit. THE Colombo Port clearance to the said boat was dated 3-12-1988. THE enquiry made with the Director General, Customs Sri Lanka revealed that the subject consignment was shipped on board on 1-12-1988 and that the importers were also not having valid licence to import the said consignment. THE petitioner was asked to show cause why the consignment of cloves imported should not be confiscated under the provisions of the Customs Act. A detailed reply was filed on 6-1-1989. Pending adjudication, the consignment was allowed to be cleared on furnishing bank guarantee equivalent to 30% of the assessable value. THE importers cleared the consignment on 27-3-1989 on furnishing bank guarantee for Rs. 1, 10, 000/- and Rs. 55, 000/- It is the case of the petitioner that the Additional Collector heard the petitioner and by his order dated 5-3-1990 confiscated the goods and allowed the goods to be cleared on payment of Redemption Fine of Rs. 70, 000/- and Rs. 35, 000/- respectively. He also levied a personal penalty of Rs. 100/- under Section 112 of the Customs Act, 196