IN RE: RUBY INTERNATIONAL (INDIA) Vs. STATE

JUDGEMENT

(1.) Dilip Kumar Neotia, the writ petitioner carries on business under the name and style of Ruby International (India) at No, 32, Baranasi Ghose Street, Calcutta. One M/s. Everest Goats Skin and Company obtained an additional Import Licence bearing No. P/W/2902098/C dated 18th December, 1981. The said licence was valid for items admissible under paragraph 186 of Import Policy for 1981-82 and sub-paragraphs thereof subject to the conditions stipulated in different sub-paragraphs of paragraph 18 of 1981-82 policy. The licence originally issued had expired on 18th December, 1982. The licence was revalidated on 25th July, 1983 for six months subject to the condition that the licence would be valid for imports of item as are not permissible for import against additional licence under the Import Policy for 1983-84 (that is the period during which revalidation is being granted). The Everest Goats Skin issued a letter of authority in favour of the petitioner on 10th December, 1983. The said letter of authority was issued in terms of paragraph 382 of the Hand Book of Import-Export Procedures 1981-82 in respect of the said Import Licence dated 18th December, 1981. After the letter of authority was issued in favour of the petitioner the two letters of indent were issued, one on 16th December, 1983 and another on 10th January 1984 and letters of credit were opened on 1st January, 1984 and 16th January, 1984. The two bills of lading in respect of two consignments were granted on 15th January, 1984 and 29th February, 1984. The goods imported by the said letters of indent are known as cyclohexanone. The two consignments arrived in Calcutta one by S.S. Indian Fortune, another by S.S. Romneburg. The first bill of entry was noted on 27th April, 1984 and the bill of entry was passed by the authority concerned on the same day and the said import licence was also debited for clearance. Similarly on 17th May, 1984 the second bill of entry was filed and the same was passed by the authority concerned on 26th May, 1984. It is alleged that the petitioner could not get delivery of the said goods and the petitioner made an application on 21st May, 1984 under Section 59 of the Customs Act, 1962 for keeping the goods in the bonded warehouse. It is alleged that the authorities concerned did not consider the same nor did pass any reasoned or speaking order and the goods were incurring unnecessary demurrage and wharfage. It is further alleged that the authorities concerned assessed the duties on the said goods on deviation from the provisions of law, and the said amount is imaginary, inflated and without arty basis as the respondents in making the assessment took into consideration post importation charges incurred after the importation is complete. It has also been alleged that the increase of duty made by the notification dated 1st March, 1984 be made applicable to the consignments in question on 20th July, 1984. The writ application was moved by the petitioner on 20th July, 1984 upon notice and in presence of the respondents and the following order was passed:-

(2.) It has been alleged that in spite of the said order the goods were not released and were not even allowed to be removed to the bonded warehouse. An application for contempt has also been filed. The respondents have appeared and produced the records. A show cause notice has been issued on 31st July, 1984. Two grounds have been taken in the show cause notice:-

(3.) It has been contended by Mr. S. Pal, learned Counsel appearing for the writ petitioner that the customs authorities are deliberately not complying with the said order dated 20th July, 1984 for ulterior motives and the grounds mentioned in the said show cause notice which has been issued as an after-thought are wholly misconceived and untenable in law. Mr. Pal submitted that if the show cause notice is found to be bad in law as contended by him, then it should be quashed or set aside forthwith as it has the effect of nullifying the said order dated 20th July, 1984. In fact in the contempt application which has been filed by Mr. Pal's client the issuance of the show cause notice is alleged to be an instant of contumacious conduct on the part of the respondents. In aid of his contentions Mr. Pal submits that paragraph 382 of the Hand Book of Import-Export Procedures 1981-82 inter alia authorised the licence-holder to appoint any person as his agent for arranging the importation of the goods permitted by the licence. Therefore, the petitioner is entitled to import under the letter of authority issued by the holder of licence M/s. Everest Goats Skin and Company which was submitted along with the bill of entry. He has also submitted that the cyclohexanone is a solvent and is covered by serial No. 63 of Part II of the List 8 of Appendix 10.