K K SUKHANI Vs. UNION OF INDIA

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution of India, a number of reliefs were prayed for which included a prayer for a declaration that the provisions of the Customs Act, 1962 and the provisions of the Imports and Exports (Control) Act, 1947 and that the Export Control Order, 1958 were ultra vires the Constitution. Another prayer was that Annexure '7' (Order passed by the Collector of Central Excise, Patna, respondent No. 3 by which he confiscated 25 packages of mica) and Annexure '8' (appellate order dated the 12th of March, 1974, upholding Annexure '7') be quashed. It was also prayed that a direction be issued by this court to deliver back the seized mica to the petitioner forthwith.

(2.) When this application was placed for admission before Chief Justice Untwalia (as he then was) and S.K. Jha, J., on the 19th of July, 1974, their Lordships observed that the application was not fit to be admitted, because the petitioner had not exhausted his remedy under Section 131 of the Customs Act, 1962, of going in revision before the Central Government against the appellate order of the Board. However, their Lordships admitted the application on the ground that, according to the learned Counsel for the petitioner, there was one clear point of law involved in the case which was covered by the authority of a decision of the Supreme Court in the case of The Assistant Collector of Customs and Superintendent, Preventive Service Customs, Calcutta v. Charan Das Malhotra 1983 (13) E.L.T. 1477, in relation to violation of the provisions of Section 110 (2) of the Act. Therefore an undertaking was given on behalf of the petitioner that the only point which would be pressed at the time of hearing of the writ application would be in relation to the violation of Section 110(2) of the Act and the consequential point of Section 114 of the Customs Act, 1962. Thus, the petitioner obtained only a limited rule.

(3.) The facts giving rise to this application are that the petitioner is the owner of Mica Mines of Jhumri Tilaiya and owns a mica factory at Giridih. On the 12th of July, 1969, he entered into a contract with one M/s. B.L. Sharma and Co., Kirat Nagar, Nepal. According to the said contract (Annexure T), the petitioner undertook to supply 32 cases of mica to M/s. R.L. Sharma and Co, Before their despatch to Jogbani for making delivery to M/s. R.L. Sharma and Co., the mica was to be inspected by Shri Sharma and one Mr, Gupta (Broker). After the Mica was inspected and approved by Shri Sharma and Shri Gupta, the cases containing mica were to be despatched to Jogbani where delivery was to be made against full payment. On a request from M/s. R.L. Sharma and Co,, the petitioner transported 34 cases of mica under the Bihar Government Passes Nos. 526296, dated the 26th of July, 1969, 526297, dated the 18th of August, 1968, 526298, dated the 19th of August, 1969 and 526299, dated the 26th of August, 1969, from the petitioner's factory at Giridih to Calcutta for inspection of the same by the said Shri Sharma and Shri Uttamlal Gupta. The thirty-four cases of mica were inspected by Shri Sharma and Shri Gupta. They approved mica contained in 25 cases and rejected the rest. Accordingly, they requested the petitioner to despatch the approved 25 cases immediately and said that the balance could be despatched after proper checking. Accordingly, the petitioner dispatched the cases of mica in two lots - one containing 25 cases and the other containing 7 cases to Jogbani. The petitioner despatched 25 wooden cases containing mica as approved by M/s. R. L. Sharma and Co. by consignment note No. 6723, dated the 5th of September, 1969, to Jogbani. These cases of mica were marked "K. K. Sukhani" and "K. K. Sukhani, Giridih" with rubber stamp and the consignment was sent by M/s. Bombay Haryana Transport Organisation showing the consignor as "K. K. Sukhani" and consignee "Self". After the despatch of these 25 cases of mica on the 5th of September, 1969, a public notice was published in Gazette of India, dated the 8th of September, 1969 (Annexure '4') which read as follows : "Annexure-4. -Public Notice No. 9-ETC(PN)69, dated 8-9-1969. Item No. 4 (c) - It has been decided that the