BALAJI INTERNATIONAL Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) This is an application, filed by the respondent No. 3, for modification of an order, passed by this Court on 30th June, 1993. The order sought to be modified was passed at the suggestion of the parties and provided for release of the goods imported by the writ petitioners subject to the writ petitioners making payment of the admitted Duty, further payment of 20% of the difference of Duty as provisionally fixed and the admitted Duty in cash and executing a P.D. Bond in terms of the Provisional Assessment Rules. Upon compliance of these conditions the goods were to be released to the writ petitioners within 72 hours. Directions were also given for participation in the adjudication proceedings before the Customs Authorities.

(2.) The goods in question were Fax Machines which had arrived at the Port of Calcutta in July, 1992. On 12th August, 1992 the goods were seized under Section 110 of the Customs Act, 1962 (hereinafter referred to as 'the said Act'). It is undisputed that the writ petitioners prayed for warehousing of the goods pending investigation under Section 49 of the said Act, and this was permitted. On 10th February, 1993 an order was issued by the Customs Authorities under Section 110(2) of the said Act. By this order the time to issue a Show Cause Notice under Section 124 of the said Act was extended for a period of 6 months. The order under Section 110(2) of the said Act was received by the writ petitioners on 15th February, 1993. The writ petitioners made a representation to the respondent-Authorities on 27th February, 1993 claiming release of the goods in question seized under Section 110 of the said Act inasmuch as the period of 6 months had expired from the date of the seizure. The writ petitioners also contended that no extension of time could be granted for the purpose of issuing a Show Cause Notice under Section 124 of the said Act without giving the writ petitioners an opportunity of being heard. Reliance was placed by the writ petitioners on various judicial decisions both of the Supreme Court and this Court. On 19th March, 1993 the writ petitioners' representation was heard. The writ petitioners submitted a written submission both on that date as well as on 10th April, 1993. The written submission reiterated the stand taken by the writ petitioners earlier in their representation dated 27th February, 1993 more elaborately. On 6th May, 1993 the writ petitioners wrote a letter to the Customs Authorities without prejudice to their rights and contentions, praying for release of the imported goods upon the writ petitioners paying the admitted Duty as well as depositing the difference in cash between the demand as raised by the Customs Authorities and the Duty claimed as payable by the writ petitioners. It does not appear that any reply was given to this letter. The writ petitioners reiterated their offer by another letter dated 20th May, 1993. This letter was also written without prejudice to the writ petitioners' rights and contentions.

(3.) In view of the inaction on the part of the respondent-Authorities in releasing the goods to the writ petitioners, the writ petitioners filed a writ application before this Court on 17th June, 1993 upon notice to the respondentAuthorities. In the writ petition the writ petitioners sought for release of the goods in question under Section 110(2) of the said Act on the ground that there had been no valid extension of the period of 6 months provided under the Statute for initiating proceedings under Section 124 of the said Act. On 17th June, 1993 the respondent-Authorities appeared and prayed for time to obtain instructions in the matter. The matter was accordingly adjourned till 22nd June, 1993. It may be noted that the entire purpose of giving notice to the Authorities before an application is moved under Article 226 of the Constitution of India is for the Authorities to instruct their Counsel adequately before the matter is heard by this Court. Nevertheless, the Court granted time to the respondents till 22nd June, 1993. On that date it was submitted on behalf of the respondent Authorities that they wished to file an affidavit in the matter. Directions were accordingly given for filing of affidavits and the matter was adjourned till 30th June, 1993. It may be noted that no affidavit-in-opposition was filed by the respondent-Authorities on the date specified or at all. In the normal course, therefore, the Court would have proceeded on the basis of the uncontroverted allegations of fact made in the writ petition.