B. Vijay Kumar & Co. etc. Vs. Collector of Central Excise and Customs
EmailAppeal: Civil Appeal Nos. 4445 & 4446 of 1988
Petitioner: B. Vijay Kumar & Co. etc.
Respondent: Collector of Central Excise and Customs
Apeal: Civil Appeal Nos. 4445 & 4446 of 1988
Judges: K.N. SINGH & KULDIP SINGH, JJ.
Date of Judgment: Dec 16, 1988
Head Note:
CUSTOMS ACT, 1962:
Import of canalised items pursuant to Court’s order in Rajni Kant Bros.’ case – Goods confiscated and redemption fine imposed – Finding of the Tribunal that appellants imported the goods bonafide – Appeal allowed in view of the special facts of the case.
Cases Reffered:
1. Union of India v. M/s. Godrej Soaps Pvt. Ltd. & Anr., JT 1986 SC 408 = 1986 (3) SCR 771. (Para 4)
2. Union of India v. Rajni Kant Brothers, C.A. 1423/84 decided on 18-04-1985. (Para 3)
2. Union of India v. Rajni Kant Brothers, C.A. 1423/84 decided on 18-04-1985. (Para 3)
JUDGEMENT:
O R D E R
1. Delay condoned. Special Leave granted. Heard counsel for the parties.
2. These appeals are directed against the judgment and order of the Customs Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal) West Regional Bench Bombay, dated 10.8.1987 rejecting the appeal filed by the appellants against the order of the Collector of Customs confiscating the goods imported by them and imposing redemption fine in view of confiscation and imposing penalty against them.
3. The appellants imported canalised items under additional import licence granted to them in pursuant to this Court’s order dated 18.4.1985 in Civil Appeal No.1423/84, Union of India vs. Rajni Kant Brothers. By that order this Court directed the Union of India to issue additional licences for the import of items placed under OGL during the policy period 1978-79, with direction that “save and except the items which are specifically banned under the relevant import policy at the time of import, such licence holders would be entitled to import all other items either canalised or otherwise in accordance with the relevant Rules”. (emphasis supplied). The importers as well as the Customs Authorities and the Union of India interpreted the order of this Court authorising import of canalised items under the additional import licence. In fact the Principal Collector Customs Central Excise, Bombay by his letter dated 15th May, 1986 informed the Federation of Indian Export Organisation that in view of the Supreme Court’s orders regarding the permissibility of import of the canalised items a decision had been taken that the canalised items shall be cleared unconditionally imported against additional import licence. The appellants thereupon entered into contract for the import of the canalise items and imported the same but when the goods arrived, the same were not cleared instead the Collector imposed penalty and also issued orders for the confiscation of the goods, although he permitted appellants to take delivery of the goods on payment of redemption fine. The appellants preferred appeals before the Tribunal. In their appeal the appellants urged that in view of the various orders of this Court and further in view of the Customs Authorities own order the appellants bona fide believed that they could import canalised items under the additional licence issued to them and in pursuance thereof they bonafide imported the goods which were not prohibited items. Since the appellants acted bonafide in accordance with the orders of this court and the communication issued by the Customs Authorities, they had not committed breach of any law and they were not liable to pay any penalty or fine and the goods so imported were not liable to be confiscated. The Tribunal allowed the appeals partly, it held that the disputed imports had not been made in defiance of the Import Policy or the law laid down by the Supreme Court, it observed “at best there was a wrong understanding of the law laid down by the Supreme Court. This wrong understanding was not only on the part of the importers but was also on the part of the licencing authority and even the Union Government and the importers were also entitled to seek sustenance from the judgment of the Bombay High Court.” On these findings the Tribunal set aside the penalties imposed on the appellants. But while considering the question of confiscation of goods the Tribunal recorded inconsistent finding holding that though the imports were not in wilful disobedience of law or in deliberate defiance of the policy and the law laid down by the Supreme Court, yet their action was not bonafide. On these findings the Tribunal upheld the order of imposition of redemption fine but it set aside the order of the Collector imposing penalty against the appellants.
4. Learned counsel for the parties referred to the decisions of this court in Rajni Kant Bros.’ case in Raj Prakash Chemicals case 1986(1) SCR 448, and Indo-Afghan case 1986(3) SCR 88 and Godrej Soap case 1986(3) SCR 771 and the latest decision of this Court in Navin Chandra’s case 1987(3) SCC 66 and also to the various orders and communications issued by the Customs Authorities and the Union Government in support of their pleas. They raised several questions of law with regard to the interpretation of the provisions of the Customs Act 1962, and of the judgments of this court and their effect. We do not consider it necessary to deal with these submissions in detail as we are of the opinion that in view of the special facts and circumstances of the case specially having regard to the findings of the Tribunal that the appellants imported the canalised items of goods bonafide under the additional import licence granted to them in pursuance of the express conditions contained in the orders of this Court, which finding has not been challenged before us rather the Additional Solicitor General has fairly conceded the correctness of the findings of the Tribunal relating to the bonafide of the appellants in importing the disputed goods, we are of the view that the Collector and the Tribunal both were not justified in confiscating the goods or in imposing redemption fine.
5. We accordingly allow the appeal, set aside the order of the Collector and the Tribunal with regard to the confiscation of goods and imposition of redemption fine. Since the respondent authorities have already realised the redemption fine from the appellants, we direct the respondent to refund the amount of redemption so realised within a period of one month from today. We would like to emphasise that since we have decided the matter in view of the special facts and circumstances available in these cases this order will not be treated as a precedent. There will be no order as to costs.
1. Delay condoned. Special Leave granted. Heard counsel for the parties.
2. These appeals are directed against the judgment and order of the Customs Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal) West Regional Bench Bombay, dated 10.8.1987 rejecting the appeal filed by the appellants against the order of the Collector of Customs confiscating the goods imported by them and imposing redemption fine in view of confiscation and imposing penalty against them.
3. The appellants imported canalised items under additional import licence granted to them in pursuant to this Court’s order dated 18.4.1985 in Civil Appeal No.1423/84, Union of India vs. Rajni Kant Brothers. By that order this Court directed the Union of India to issue additional licences for the import of items placed under OGL during the policy period 1978-79, with direction that “save and except the items which are specifically banned under the relevant import policy at the time of import, such licence holders would be entitled to import all other items either canalised or otherwise in accordance with the relevant Rules”. (emphasis supplied). The importers as well as the Customs Authorities and the Union of India interpreted the order of this Court authorising import of canalised items under the additional import licence. In fact the Principal Collector Customs Central Excise, Bombay by his letter dated 15th May, 1986 informed the Federation of Indian Export Organisation that in view of the Supreme Court’s orders regarding the permissibility of import of the canalised items a decision had been taken that the canalised items shall be cleared unconditionally imported against additional import licence. The appellants thereupon entered into contract for the import of the canalise items and imported the same but when the goods arrived, the same were not cleared instead the Collector imposed penalty and also issued orders for the confiscation of the goods, although he permitted appellants to take delivery of the goods on payment of redemption fine. The appellants preferred appeals before the Tribunal. In their appeal the appellants urged that in view of the various orders of this Court and further in view of the Customs Authorities own order the appellants bona fide believed that they could import canalised items under the additional licence issued to them and in pursuance thereof they bonafide imported the goods which were not prohibited items. Since the appellants acted bonafide in accordance with the orders of this court and the communication issued by the Customs Authorities, they had not committed breach of any law and they were not liable to pay any penalty or fine and the goods so imported were not liable to be confiscated. The Tribunal allowed the appeals partly, it held that the disputed imports had not been made in defiance of the Import Policy or the law laid down by the Supreme Court, it observed “at best there was a wrong understanding of the law laid down by the Supreme Court. This wrong understanding was not only on the part of the importers but was also on the part of the licencing authority and even the Union Government and the importers were also entitled to seek sustenance from the judgment of the Bombay High Court.” On these findings the Tribunal set aside the penalties imposed on the appellants. But while considering the question of confiscation of goods the Tribunal recorded inconsistent finding holding that though the imports were not in wilful disobedience of law or in deliberate defiance of the policy and the law laid down by the Supreme Court, yet their action was not bonafide. On these findings the Tribunal upheld the order of imposition of redemption fine but it set aside the order of the Collector imposing penalty against the appellants.
4. Learned counsel for the parties referred to the decisions of this court in Rajni Kant Bros.’ case in Raj Prakash Chemicals case 1986(1) SCR 448, and Indo-Afghan case 1986(3) SCR 88 and Godrej Soap case 1986(3) SCR 771 and the latest decision of this Court in Navin Chandra’s case 1987(3) SCC 66 and also to the various orders and communications issued by the Customs Authorities and the Union Government in support of their pleas. They raised several questions of law with regard to the interpretation of the provisions of the Customs Act 1962, and of the judgments of this court and their effect. We do not consider it necessary to deal with these submissions in detail as we are of the opinion that in view of the special facts and circumstances of the case specially having regard to the findings of the Tribunal that the appellants imported the canalised items of goods bonafide under the additional import licence granted to them in pursuance of the express conditions contained in the orders of this Court, which finding has not been challenged before us rather the Additional Solicitor General has fairly conceded the correctness of the findings of the Tribunal relating to the bonafide of the appellants in importing the disputed goods, we are of the view that the Collector and the Tribunal both were not justified in confiscating the goods or in imposing redemption fine.
5. We accordingly allow the appeal, set aside the order of the Collector and the Tribunal with regard to the confiscation of goods and imposition of redemption fine. Since the respondent authorities have already realised the redemption fine from the appellants, we direct the respondent to refund the amount of redemption so realised within a period of one month from today. We would like to emphasise that since we have decided the matter in view of the special facts and circumstances available in these cases this order will not be treated as a precedent. There will be no order as to costs.
