MANGLA BROS Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) In this application under Art.226 of the Constitution the petitioner has challenged the refusal of the respondents to release the goods imported for home consumption under a valid licence without assigning any reason therefor. The facts of the case as appearing from the writ petition are stated hereinafter. The petitioner carries on business of importing and dealing in various types of chemicals, drugs etc. On December 7, 1982 the petitioner imported 1,500 kgs. of AMOXYCILLIN TRIHYDRATE (hereinafter referred to as the said goods) from Spain by air flight. The said import was made under Import Licence No. 2826352 dt.14-3-80. It has been alleged that the said goods have been imported by the petitioner for Flemming (India) who are actual users thereof. After arrival of the said goods the Bill of Entry for home consumption in the prescribed form was submitted before the Assistant Collector of Customs, Air Cargo Complex (Import), the respondent No. 3. Pending processing of the documents by the Customs Authority, the said goods were removed to bonded warehouse on January 11, 1983. The Customs Authority released the said goods on 22nd February, 1983. As the consignee of the said goods found it difficult to arrange for nearly Rs. 12,00,000/- at a time, being the Customs Duty on the said goods, at the request of the petitioner the said Bill of Entry for home consumption was converted into Bill of Entry for warehousing. The petitioner was permitted to make part payment of the duty and to take part delivery of the said goods. The said goods being drugs, the customs authorities drew samples from the said goods for test. High Seas Sale Declaration showing the sale of the said goods to M/s. Flemming (India) was produced before the Customs Authorities on 5th May, 1983. Pending testing of the said goods the petitioner gave a letter of guarantee not to dispose of the said goods without the consent of the Collector of Customs, the respondent No.1. The samples drawn from the said goods were found to be of standard quality. By a letter dt. 27th November, 1983 addressed to the Assistant Collector of Customs, Air Cargo Complex (Import), the respondent No.3, Assistant Drugs Controller (India) stated that the letter of guarantee-pertaining to the said import be cancelled and the said goods be released to the petitioner. Between 12th May, 1983 and 18th December, 1983 the petitioner took delivery of 900 kgs. of the said goods after making payment of proportionate customs duty thereon amounting to more than Rs. 7,00,000/-.

(2.) On 18th April, 1984 and 25th April, 1984 the petitioner filed two Bills of entry for Ex-Bond Clearance for home consumption with the respondent No. 3 in respect of the balance quantity (600 kgs.) of the said goods lying in the bonded warehouse. The Customs Authorities however did not return the said Bill of Entry to the petitioner. By a letter dt. 10th May, 1984 addressed to the Deputy Collector of Customs Incharge of Air Cargo Complex (Import), the respondent No. 2, the petitioner requested the said respondent for taking appropriate action at an early date inasmuch as the said goods being drugs were urgently required by the consignee who are facing acute shortage of the said goods. A reminder was sent on 16th May, 1984 intimating the respondent No. 2 that the materials in question were essential basic drugs and their expiry date were nearing. After the expiry of the said date the use of the said goods are not permissible. The respondents neither released the said goods nor intimated the reasons for withholding the said goods.

(3.) This application has been moved upon notice. Mr. S. N. Banerjee, the learned advocate appearing for the respondents, has submitted that the goods in question are canalised items and such items can only be imported by the State Trading Corporation of India under Open General Licence. He has, therefore, submitted that the Customs Authorities are justified in not releasing the said goods. It has been further submitted that a part of the goods had already been released on a misconception of law and facts and the Department would prefer appeal therefrom. The respondents have not used any affidavit and produced the records before me. Having regard to the fact that the goods in question are drugs and their expiry dates were nearing and they cannot be used after the date of expiry, I felt that the matter should be disposed of on the basis of the records. The learned advocates appearing for the respective parties have agreed to such a course being followed.