NEW SYNTHETIC CHEMICAL Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) INVOKING the provisions of Section 130(1) of the Customs Act 1962, the applicants have sought for reference to the High Court on the question of law as formulated by them, as arising out of the Bench's Order No. 495/89 -WRB dated 8.6.1989 in appeal No. CD (Bom) A 1473/83.

(2.) THE applicants, as the Letters of Authority holders, imported a consignment and filed a B/E for home consumption seeking clearance of the subject items under two licences. On scrutiny, the departmental authorities however, found that one of the licences had already been cancelled 'ab initio' and for the other one, proceedings for cancellation ab initio were already initiated. The import was therefore held as unauthorised. From the order in original, it appears that the applicants conceded this position and requested for taking lenient view as they had opened the Letter of Credit prior to cancellation of the licence. The adjudicating authority however ordered absolute confiscation without imposing any personal penalty. The said order was challenged in appeal before the Tribunal where personal appearance was waived and written arguments were submitted for the applicants, and considering the same as also, hearing the Id. JDR for the department, this Bench held that both the licences, on the strength of which the import was made, had stood cancelled ab initio and as such could be held to have not come into existence at all. It was also held that the applicants were mere letter of authority holders i.e. importing for and on behalf of the original licence holders who were supposed to be an industrial unit, who had to be the actual users of the items imported and as such option to pay fine in lieu of confiscation was not required to be given to the applicants.

(3.) SEVEN questions of law allegedly arising out of the aforesaid order of this Bench as formulated by the applicants are at Annexure I to the application. In brief their points are: