PURBACHAL INTERNATIONAL Vs. STATE

JUDGEMENT

(1.) This writ petition was moved with notice to the respondents against the refusal of the Customs Authorities to clear the imported white cement in contemplation of an adjudication proceeding. The said refusal to clear the said goods was endorsed in the body of the original bill of entry which is Annexure 'D' to the writ petition. In the instant case, the petitioner imported two consignments of white cement under O.G.L. and that the petitioner on arrival of the goods from Yugoslavia filed two separate bills of entry being No. 1665 and 1666 both dated 28, 1984 for home consumption for clearance of the said goods. The said bills of entry were duly processed by the Customs Authorities and assessed customs duty to the extent of Rs. l,83,000/-which was duly paid by the petitioner. Thereafter on the Bill of Entry, the Customs Authorities passed an order on January 1, 1985 and made the following endorsement :

(2.) The said booklet contains various information regarding the terminology, manufacturing process, chemical requirements, physical requirements, etc., of white Portland cement. Mr. Gupta also relied on the booklet issued by the Indian Standard Institution under the name and style "Indian Standard Specification for Ordinary and Low Heat Portland Cement" which also provides the terminology, manufacturing process, chemical requirements, physical requirements etc. of ordinary portland cement. From the Booklets it is also made abundantly clear that the chemical requirements of white portland cement and ordinary and oil heat portland cement are quite distinct and separate. The chemical requirements for ordinary portland cement is enumerated in Table I of the said Booklet. From this it is abundantly clear that even on chemical analysis the said two commodities are quite distinct and separate. Mr. Gupta also relied on the Press Note issued by the Government of India, Ministry of Industries, dated February 27, 1982 in support of his contention that the white cement and ordinary port-land cement are two different commodities. A copy of the said Press Note is Annexure "E" to the writ petition wherein the Government of India, Ministry of Industries, Department of Industries Development used the expression "ordinary portland cement" The said Press Note also provides that in order to meet the deficit of such type of cement, the State Trading Corporation shall be freely allowed to import cement on its own account or on the account of the actual users. The said Press Note was also relied upon by Mr. Gupta in support of his contention that the ordinary portland cement have only been made a canalised item and that the ordinary portland cement could only be imported by the Slate Trading Corporation and that the said Press Note made it abundantly clear that white portland cement were left outside the purview of such restriction of importation through the State Trading Corporation. Mr. Gupta further contended that when the Indian Standard Institution which is the highest authority in the matter treated ordinary portland cement and white cement are two different and distinct commodity and had in their publication set out the chemical analysis of the ordinary portland cement it was no longer open on the part of the Collector of Customs to rely on any other chemical test behind the back and without the knowledge of the petitioner for holding that the sample were found to be white powder having characteristic of portland cement. Such chemical analysis the particulars of which are not disclosed also do not support to the contention that the two commodities are same commodities particularly when the said booklet issued by the Indian Standard Institution analysed separately two chemical composition of two different commodities. It was further stated that the said determination made by the Indian Standard Institution with regard to the chemical analysis and physical requirements of the two types of commodities were binding upon the Collector of Customs. Further the Collector of Customs at its sweet will, cannot ignore the definition of cement given in the Imported Cement (Control) Order, 1978 which made it abundantly clear that the Central Government treated for all practical purposes ordinary portland cement and white cement as two different commercial commodities even under the law. According to Mr. Gupta, the Collector of Customs had acted arbitrarily, unjustly and whimsically in not relying upon the definition of cement in the said control order which was binding all force upon the Collector of Customs. The Collector of Customs had no authority and/or jurisdiction to override the statutory definition given to a particular commodity at his whims and caprice.

(3.) Mr. Gupta further contended that the Collector of Customs in the matter proceeded from the very beginning with a closed and biased mind and that as the matter was pending before this Court and the Collector was a party to it and the Collector of Customs from the beginning was contending that the white cement and the ordinary cement was same commodity. The Collector of Customs could not bring an impartial mind to bear in the matter and that the fact that when the Collector was very much biased, was made abundantly clear by imposition of fine of Rs. 6,50,000/- and a penalty of Rs. 1,10,000/- without any rhime and reason. Further the Collector of Customs did not take into account of a sum of Rs. 1,83,000/- realised by the Customs Authorities as Customs duty and it was contended by Mr. Gupta that the respondents are estopped from refusing to release the goods after they had realised Custom duty.