COLLECTOR OF CUSTOMS MADRAS Vs. HARILAL V SANGHVI

JUDGEMENT

(1.) THIS is an appeal against the judgment of Balakrishna-Ayyar, J. in Application No. 429 of 1958 filed by Harilal v. Sanghvi as the sole proprietor of Messrs Sanghavi Brothers, the respondent herein, in the following circumstances. The respondent is engaged in the business of imports and exports, and in the course of his business he applied for a licence for import of parts of machinery during the licensing period July/december, 1955. On the 16th November, 1955 he was given a licence authorising him to import parts of machinery when required for industries and undertakings other than cinema and refrigeration, covered by serial No. 65/ (5) (iii) of Part V of the import Trade Control Policy Book for the period July/december, 1955. The licence was valid up to 31st May 1957 from the date of issue. Under this licence the respondent imported a certain number of pieces of "inner races, outer races and cage" which admittedly are parts of ball bearings. The Collector of Customs, Madras held that these articles did not fall under serial No. 65 (5) (iii) of Part V but fell under Serial No. 19 (l) (viii) of Part ii of the Import Trade Control Policy Book, apparently relating to the period july/december, 1956, and that therefore the goods had been imported without a valid import licence. As such import was in contravention of Section 3 of the import Control Order, 1955 read with sub-section (2) of Section 3 of the Import and Exports Control Act, 1947, the respondent was found to be guilty of an offence attracting the provisions of section 167 clause (8) of the Sea Customs act. The Collector of Customs, Madras accordingly directed a confiscation of the goods and gave the importer an option to clear the goods for home consumption on payment of a fine of Rs. 15, 000/- within four months from the date of his order in lieu of confiscation imposed under section 183 of the Sea customs Act. Against this order of the Collector of Customs, Madras the petitioner appealed to the Central Board of Revenue and meanwhile also filed the application in this court out of which this appeal arises for the issue of a writ of mandamus requiring the Collector of Customs, Madras to permit him to clear the goods on production of the licence without any fine and subject only to the payment of such duties or other charges as might be leviable in due course of law. He also prayed that the Collector and his subordinates be restrained from collecting or taking any steps to recover the fine imposed on him under the order mentioned above. The main ground on which the respondent sought relief was that the articles imported by him properly fell within serial no. 65 (5) (iii) of Part V and did not fall within serial No. 19 of Part II of the Import Trade Control Policy Book for the period July/december, 1955. THIS ground was accepted by the learned Judge, Balakrishna Ayyar, J. who found that the goods imported by the respondent were covered by the licence issued to him. He allowed the application filed by the respondent. Hence this appeal by the collector of Customs, Madras.

(2.) THOUGH interesting and elaborate arguments were addressed to us both by the learned Advocate General for the Collector of customs, Madras and Mr. V. C. Gopalarathnam for the respondent-importer, the matter lies in a very narrow compass. The only question which falls for decision is whether the articles imported fall within serial number 65 (5) (iii)of Part V of the Import Trade Control Policy or whether they fall within serial no. 19 of Part II of the same schedule. At the out-set it is necessary to clarify one important point. It is specifically mentioned in the licence granted to the respondent that the licence was subject to the conditions in force relating to the goods covered by the licence as described in the relevant import Trade Control Policy Book, or any amendment thereof made up-to, and including, the date of issue of the licence unless otherwise specified. In the impugned order of the Collector of Customs dated 16th August, 1957 he states that the goods are correctly classifiable under Item 72 (36) of the Indian customs Tariff and a licence under Serial No. 19 (i) (viii) of Part II of the import Trade Control Policy Book is necessary for their importation. Now when we refer to the Import Trade Control Policy Book for the licence period, july/december, 1955, which is the only relevant book, we do not find any serial number like 19 (1) (viii ). It stops with 19 (1) (vii ). The Collector of Customs is evidently referring to the Import Trade Control Policy Book for the licensing period July/december 1956 for there we have Serial Number 19 (1) (viii) which reads thus : "component parts of ball bearing". There is no such entry in the policy Book for the licensing period July -December 1955 which was in force at time of the grant of the licence to the respondent. The clarification is important because obviously it cannot be contended that the articles imported are not component parts of ball bearings, and if these articles were imported under a licence granted when the Import Trade Control Policy Book for the licensing period July/december, 1956 was in force, then the articles would certainly fall within Serial No. 19 (1) (viii) of Part II. The only question in this case is whether the imported articles fall within the category of ball bearings or within the category of "component parts of machinery when required for industries and undertakings other than cinema and refrigeration". Serial No. 65 (5) opens with the following words :"component parts, as defined in item No. 72 (3)of the First Schedule to the Indian Tariff Act, 1934, of machinery specified in clauses (1), (2), (3) and (4) above, but excluding those which are covered by serial No. 68 of this part of this Schedule". The contention of the learned Advocate General was that before the articles imported can be said to fall within Serial No. 65 (5) (iii), they should satisfy the definition of component parts of Item No. 72 (3) of the first Schedule to the Indian Tariff Act. Section 72 (3) of the said Schedule to the Indian Customs Tariff runs thus : 72 (3) :- Component parts of machinery as defined in items nos. 72, 72 (1) and 72 (2), namely such parts only as are essential for the working of the machine or apparatus and have been given for that purpose some special shape or quality which would not be essential for their use for any other purpose but excluding small tools like twist drills and reamers, dies and taps, gear cutters and hacksaw blades. There is also a proviso which should not be overlooked which is in the following terms : "provided that articles which do not satisfy this condition shall also be deemed to be component parts of the machine to which they belong if they are essential to its operation and are imported with it in such quantities as may appear to the Collector of Customs to be reasonable. " The learned Advocate General laid stress on the fact that this definition of component parts excludes component parts which are not essential for the working of the machine or apparatus and which have not been given for that purpose some special shape or quality which would not be essential for their use for any other purpose. Here there is no proof that the article imported satisfy that condition. Whether in a particular case ball bearings themselves might or might not form such component parts, the imported articles which are only parts of ball bearings cannot be deemed to be component parts of machinery mentioned in Item Nos. 72 (1) and 72 (2) of the First Schedule to the Indian Customs Tariff. So his argument ran. But the Proviso contemplates that even articles which did not satisfy this condition would also be deemed to be component parts of the machine to which they belong if they are essential to their operation. No doubt it is left to the Collector of Customs to determine whether the quantities imported are reasonable. In the present case there is no expression of opinion by the Collector that the quantities are unreasonable.