PRADIP TRADERS Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) The petitioners being aggrieved Dy non-release of Angel brand catheters by the Customs Authorities has moved the writ jurisdiction of this Court for issuance of necessary rule and interim order directing the respondent authorities forthwith to release the said goods.

(2.) Mr. Gautam Mitter, the learned-lawyer on behalf of the petitioners, submitted that the goods so imported by Pradip Traders are not subject to payment of any duty as those goods not only could be imported under Open General Licence but also the particular item, that is, the Angel brand catheters are not subject to payment of any duty. It was further the case of the petitioners that the bill of entry had been submitted by the petitioners with the Customs Authorities in the month of June, 1985. Till 27th March, 1985 apart from refusing to release the said goods, the Customs authorities had not taken any steps whatsoever nor initiated any proceedings against the petitioners for violation of any of the provisions of the Customs law. Mr. Mitter craved reference to the General Exemption No. 11/90 under Item 32 thereof, suction catheters are exempted from payment of any duties. Mr. Mitter further contended that although the bill of entry had been submitted by his client and the entire document is a typed one, in the column for 'description of goods' it is written in hand in the manuscript from 'suction catheters' which had not been done by the petitioner themselves and, according to the petitioners, it had been done by the respondent authorities with an ulterior motive of bringing action against the petitioners for giving such wrong description of the properties. Mr. Mitter submitted that the goods which have, been imported by the petitioners fall under Appendix 10, List 2, Item No. 38 where it has been provided that any apparatus or items used for male or female urinary incontinence, which are described as male or female urinary incontinence sets, which are exempted from payment of any duty. Under the circumstances the catheters which have been imported by the petitioners fall within that particular item. As a result no duty is payable by the petitioners. It was also the case of Mr. Mitter that to help the importers who had almost a monopoly business in Delhi, the Customs authorities have deliberately not released the goods with the view instead of helping such monopoly trader in Delhi inasmuch as, Mr. Mitter contended, no licencei is required for the purpose of importation of those goods and inasmuch as they are life saving devices and are duty-free items, the Customs authorities should be directed forthwith to release the said goods in favour of the petitioners.

(3.) Before the District Judge's Court at Delhi M/s. I.D. Gupta and Sons, proprietors of M/s. Medirnex India had filed a suit against various parties including M/s. Pradip Traders for various reliefs including a prayer for order of permanent injunction restraining the defendants, including Pradip Traders, from infringing the artistic features of 'Angel' and also for an order of permanent injunction restraining the defendants, including Pradip Traders, in any way from printing, publishing or infringing copyright in respect of the said product. There it had been stated that the plaintiff in the said suit had been exporting from Japan medical and surgical apparatus and instruments including Foley Baloon Catheters in India since the year 1968 and those items were being regularly sold by the plaintiff therein in India, the plaintiff claimed to have made exclusive sales of such catheters under the said trade mark Angel by giving full particulars of such sales for the years 1980 to 1984 which went to the tune of Rs. 65 lakhs. The said catheters being life saving devices are very sensitive items and if used negligently they can cause the death of patient. In the said suit the plaintiff therein claimed to be the owners and proprietors of the trade mark 'Angel'. There it was contended that some unscrupulous manufacturers and traders started manufacturing and selling and also marking medical surgical apparatus, including Foley baloon catheters from unscrupulous manufacturers under the trade mark 'Angel. Inasmuch as the brand imported by the defendants with the name 'Angel', it was the case of the petitioners, the trade mark adopted and used by the defendants was not only visually but phonetically and structurally identical to the trade mark 'Angel. Under those circumstances the suit was filed before the the Delhi' Court and on an application for interim injunction and an order had been passed by the learned Judge in favour of the plaintiff. Thereafter the petitioner herein moved the Delhi Court for variation of the interim order and an order was passed by the learned Judge to this effect that the defendent No. 6 therein, that is, the Union of India may "release the goods to the defendant No. 2" that is, Pradip Traders but an order of injunction had been passed against the petitioners, herein, Pradip Traders to the effect that even after getting the goods so released from the defendant No. 6, the said Pradip Traders shall not market it and/or dispose of or sell the goods so released.