MONORANJAN ROY Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution and Section 45. Specific Relief Act for an order on the respondent to cancel or withdraw the order dated 7-8-1950 made by the respondent imposing a penalty of Rs. 3300/- in respect of a consignment of goads imported by the petitioner without the requisite licence and also for an order for refund of the said sum of Rs. 3300/- paid by the petitioner pursuant to the said order of the respondent.

(2.) The petitioner carries on business as dealer in paper of various kinds and is one of the largest importers of single faced corrugated paper in this country. The single faced corrugated paper is known in this country as also in the countries from which they are imported as "paper1' as opposed to "board". Between May 1945 and June 1947 paper could be imported from the United Kingdom by importers of this country under Open General Licence No. VII and no restrictions were imposed by the Government upon the import of single faced corrugated paper from the United Kingdom. Since July 1947 the Government of India imposed vigorous restrictions on the import of paper from foreign countries including the United Kingdom and no paper could be imported without an import licence granted by the Government. Such restrictions continued till June, 1948. Thereafter and until May 1949 paper could be imported in India from all Sterling and Soft Currency areas under Open General Licence No. XI. Between July and November 1948 the petitioner imported 2200 rolls of single faced corrugated paper from Czechoslovakia, Finland and United Kingdom and the petitioner was charged with duty payable for "paper including Poster and 'Stereo and all coated papers except art paper, all sorts, not otherwise specified" as referred to under the then Customs Tariff Items No. 44. From May 1949 the Government of India again imposed restrictions on the import of paper including single faced corrugated paper and no merchant could import single faced corrugated paper without a licence from the Government. The Government, however, notified at the time that in case where traders of this country had already entered into firm contracts for the import of paper under Open General Licence No. XI they would be allowed to import such paper under a special licence to be granted by the Government. In or about April 1949, the petitioner placed orders with Thomson & Norris Manufacturing Co. Ltd. of Middlesex in the United Kingdom for import of 1000 rolls of single faced corrugated paper of which 500 rolls arrived at the Calcutta Port in July 1949 and the remaining 500 rolls in October 1949. The petitioner duly applied to the Government for a special licence for the import of these 1000 rolls of paper and was granted a special licence No. 091546/48 C.C.I. dated 30-7-1949. Upon the arrival of the said 1000 rolls of paper at the Calcutta Port the Customs authorities imposed a penalty of Rs. 2900/- for each lot on the basis that they were not paper but came under the heading of "Paste Board, Mill Board, Card Board and Straw Board all sorts" as referred to under Customs Tariff Item No. 44 (4) and as the petitioner had not the necessary licence required for the import of such goods and the Customs Authorities purported to act under Section 167 (8) of the Sea Customs Act. On 20-12-1949 the petitioner appealed to the Central Board of Revenue from the said order of the Collector of Customs but the Raid appeal is still pending. Thereafter the petitioner obtained from the Government further licences for the import of "paper and other sorts" the last of such licences being No. 220699/48 C. C. I. dated 6th April. 1950. By virtue of this licence No. 220699/48 the petitioner in April 1950 placed an order with Messrs. Donaldson & Filter Ltd, of Glasgow through the latter's local representative in Calcutta one Antoine Bentz of Stephen House, Calcutta, for the import of 340 rolls of single faced brown corrugated paper. The said goods arrived on or about 18th July, 1950. Upon the arrival of the said goods the petitioner paid the ad-valorem duty of 371/2- per cent on the said goods, on or about 20-7-1950 and the Customs Officers made the necessary endorsements on the licence of the plaintiff and on the relevant Bill of Entry. Thereafter, on 7-8-1950 the respondent imposed a penalty of Rs. 3300/- on the said consignment in lieu of confiscation on the basis that the goods came within the description of Customs Tariff Item No. 44 (4). The respondent acted under Section 167 (8) of the Sea Customs Act.

(3.) On or about 10-8-1950 the petitioner paid the said penalty of Rs. 3300/- for getting the goods released. It is stated in the potition that it will appear from the correspondence that passed between the Import Authorities and the said Antoine Bentz that single faced corrugated paper was always considered in the past by the Customs authorities as "Paper'' and not "Board". The petitioner charges the order dated 7-3-1950 as mala fide, arbitrary and illegal and as an abuse of the statutory powers possessed by the respondent Collector of Customs and his officers. It appears that the petitioner has obtained another licence No. 272312/48 C.C.I. dated 4-3-1950 for the import of paper and other sorts. It is alleged by the petitioner that the order of the Collector is an invasion upon his f'undamental rights to acquire, hold and to dispose of property and to carry on his trade as importer of single faced corrugated paper under the said licences. The petitioner has been prevented from exercising his right to trade and utilise the said licences for the import of single faced corrugated paper.