Gipoint Development Limited vs Collector of Customs, Madras

Writ Petition Nos. 10045 and 10940 of 1991 are filed by Gipoint Development Limited, Hongkong and Writ Petition Nos. 10046 and 10939

of 1991 are filed by Hongkong Polychem Company. Both companies are incorporated under the laws of Hongkong and having offices at

Hongkong. Writ Petition Nos. 10045 and 10046 of 1991 are filed praying to issue a writ of mandamus directing the respondents to permit the re-

export of the goods covered by Bill Lading No. KKDU 823-801951 insofar as Gipoint Development Limited, Hongkong is concerned and No.

KKDU 823-801929 insofar as Hongkong Polychem Company is concerned, being shoe uppers, without any assessment being done and without

charging any duty, fine or penalty. Writ petition Nos. 10939 and 10940 of 1991 are filed praying to issue a writ of certiorari against the orders of

adjudication of the respondent dated 19-4-1991 and quash the same.

The facts in writ petition Nos. 10045 and 10940 of 1991 are as follow :-

One M/s. Stylo Footwear having office at New Bombay placed orders for import of diverse quantities of insoles for footwear with both the writ

petitioners representing that they being a small-scale industry and actual user of raw materials for manufacture of footwear wanted to import the

said insoles under the name ""O. G. L. "" and requested that the goods be sent to them on sight/D. P. basis through bankers, Bank of Baroda,

Bombay. Believing that representation, the petitioners in both the cases agreed to sell and accordingly supplied the goods. The petitioner in W. P.

No. 10045 of 1991 sold and supplied 298 rolls of insoles for leather footwear (made of plastic) running into 14,843 linear meters at U. S. $ 1/-

per meter (linear) in container No. TKU 2611722 of B/L 823801951. In the same manner, the petitioners in W. P. No. 10940 of 1991 sold and

supplied 298 rolls of insoles for leather footwear (made of plastic) running into 14843 linear meters at U. S. $ 1/- per meter (linear) in container

No. KKDU 2611722 of B/L KKDU 823801051. The documents evidencing the said export, namely bill of lading, bill of exchange were

negotiated through Bank of Baroda, Bombay. When the goods arrived at Madras Port, the said importer M/s. Stylo Footwear refused to take

delivery of the goods despite the fact that the said importer informed to the Bank by letter dated 2-11-1990 that they are ""actual users"" of the

goods, that the said goods are eligible for imports under O. G. L. and that the goods imported from the petitioners are neither banned nor

restricted. But the Bank did not retire the documents by making payment and consequently the goods were not unloaded at Madras Port since the

petitioners felt that the importer has shown its dishonesty and as such the goods, if unloaded, would unnecessarily be exposed to demurrage at

Madras Port and that the entire investment of the petitioners would go waste and also there will be total loss of interest. The goods which were

exported by the petitioners are nothing but insoles for footwear. When the writ petitioners came to know about the fraud played by the importer,

they requested that shipping company and their agents at Taipei not to unload the goods at Madras but to bring it back to Hongkong and the

freight and incidental charges thereof would be paid by the petitioners. Since the captain of the vessel delayed in filing of the Import Manifest, the

respondents insisted that the Manifest be filed and the goods be unloaded as they were already rummaging various goods. The respondents

therefore in their general rummaging operations insisted upon inspecting and examining the said goods and on investigation they prima facie formed

an opinion that the goods have been imported by a person who is not in existence and also initiated action against the said goods by examining the

same extensively and drew samples for obtaining technical opinion with regard to the classification of the said goods. The respondents were also of

the view that the goods as declared and found on examination could not be used as ""insoles for footwear"" and as such would not be eligible for any

concessional rate of duty and as such would require specific import licence as the same could not be covered under O. G. L. provisions of the

Import Policy in force. When the petitioner companies came to know about such investigation they made a requisition on 23-11-1990 to the

second respondent herein that they may be allowed to get the said goods re-exported to Hongkong agreeing to pay all charges required, i.e., the

freight, rental for the containers for the purpose. The respondents continued investigation and allowed the said goods to remain in containers. Since

there was no response from the second respondent, the petitioners appointed an Advocate from Bombay instructing him to make appropriate

representations of the Customs Authorities for obtaining suitable order of re-export. As no reply was for the coming to the said representations, the

petitioners'' Advocate wrote another letter on 7-1-1991 reminding the Central Board of Excise and Customs about the representation made earlier

requesting for the same relief. Thereafter, the petitioners-companies through the said Advocate made representations at Madras before the

respondents and made a request that the goods to allowed to be re-exported. By that time, a show cause notice was issued by the respondents to

the Importer-Stylo Footwear as also to the Marine Container Service (South) Private Ltd., and Messrs K. Steamship Agencies Private Limited,

Madras calling upon all of them to show cause as to why the goods imported by not confiscated on the ground that there was a specific

misdeclaration made by the shipping company. At this stage, the petitioners have come to this court, with these allegations to direct the

respondents to permit the re-export covered by each of the bills of lading.

Notice of motion has been ordered by me in the Writ Petition Nos. 10045 and 10046 of 1991 on 24-7-1991. Writ Petition Nos. 10939 and

10940 of 1991 have been admitted on 7-8-1991. It is further stated in the affidavit that on enquiry with the authorities it was found that without

notice to the petitioner, who is the owner of the goods an order of adjudication was made by the Collector of Customs on 19-4-1991 and the

same had been discharged on 23-6-1991 to M/s. Stylo Footwear and also to the alleged Importer Marine Containers Private Limited and M/s. K.

Steamship Agencies Private limited. It is alleged that no notice was sent to the petitioners even though they made representations to the Central

Board of Excise and Customs and also to the Collector of Customs seeking permission for re-export of the goods. Aggrieved by the said order of

adjudication dated 10-4-1994, the writ petitioners are before me with the prayers stated supra.

The facts of other two writ petitions are almost similar.

The petitioners allege in the affidavit filed in support of the writ petitions that there is no question of ""import"" involved on the facts and

circumstances of the case and that the principle laid down in The Central India Spinning and Weaving and Manufacturing Company, Limited, The

Empress Mills, Nagpur Vs. The Municipal Committee, Wardha, will apply to the facts of the cases. It is further alleged in the affidavits that in the

present case it is only the Customs Authority that insisted upon the filing of the manifest by the captain of the vessels and the unloading of the goods

since they were rummaging various goods. But there was no filing of any bill of entry by any one claiming to be the Importer, that it is only the filing

of the bill of entry that will amount to the expression of one''s intention to import, that the intention to import which is an essential ingredient for

making import, being absent in this case and that there is no ""Import"" of the subject-goods and the owner of the goods is entitled to seek

permission for re-exporting the same. It is further stated in the affidavit that no liability can be fastened on the owner of the goods who has

exported the same from the foreign country before any import could take place, that in the present cases the goods having been unloaded at the

instance of the customs authorities there can be no intention on the part of anyone to import the goods as has been held in (AIR 1981 SC 616). It

is further alleged in the affidavit that the order of adjudication is nullity and that the subject-goods cannot vest in the Central Government and that

consequently no auction can be held.

A common Counter-affidavit is filed by the respondents in W. P. 10045, 10046/91. It is seen from the counter-affidavit that in view of the non-

genuineness of the S. S. I. Certificate of the importer as also entries at SI. Nos. 48 and 172 of Appendix 2, Part-B of the Import Policy 90-93

AM, that the import of the above goods would require a valid import licence and that in the absence of the said licence, the goods were liable to

be confiscated under Clause (d) of Section 111 of the Customs Act, 1962. It is further claimed in the counter-affidavit that as the goods could not

be considered as insole for footwear, they were not eligible for concessional rate of duty. It is further claimed in the counter-affidavit that the wrong

declaration of the goods in the manifest was violative of sub-section (2) of Section 3 of the Customs Act, 1962 which rendered the goods liable for

confiscation under Clause (f) of Section 111 of the Customs Act, 1962. It is further claimed in the counter-affidavit that the matter was therefore

submitted for adjudication by the first respondent herein who after compliance of the principles of natural justice, ordered confiscation of the goods

under Clauses (d) and (f) of Section 111 of the Customs Act, 1962. It is further claimed in the counter-affidavit that pursuant to the order of the

first respondent the goods vest with the Central Government in terms of sub-section (1) of Section 126 of the Customs Act, 1962. It is further

claimed in the counter-affidavit that the respondents were concerned only with goods manifested for import into India and the subject goods were

no doubt manifested for import into India, and that the Vessels'' agents are statutorily obliged to unload at the port of destination, the goods on

board for importation into India. It is further claimed in the counter-affidavit that pursuant to the representations to the Central Board of Excise and

Customs, they called for a report from the first respondent and accordingly the then position in the investigation was stated to the Board, that the

Board did not issue any further directions to the first respondent, and as such the order of adjudication was passed by the first respondent. It is

further claimed in the counter-affidavit that as against the order of the first respondent statutory appeal is provided to the Tribunal and it has not

been filed by the petitioners. It is further claimed that the petitioner is not a party to the show-cause notice, that the present goods were manifested

for import into India and for unloading at Madras and not for re-export and as such that clause is not applicable to the case on hand. It is further

claimed in the counter-affidavit that the present case is not the case of the goods imported into India, that the manner of importation of the goods

into India is suspicious and that it entitles the Customs Department to make an investigation and in the absence of any valid licence for the subject

goods, the said goods are liable for confiscation and to that effect orders have been passed. It is further claimed in the counter-affidavit that it is not

necessary that such goods should be prohibited or restricted goods nor banned nor canalised and that the goods imported without a valid licence is

also prohibited goods under the provisions of the Customs Act. It is further claimed that the proper persons to whom show-cause notice to be

issued are only the importers and the vessel owners and if clearing agents come on the scene they would also be served with the notice. It is further

claimed that by issuing a show-cause notice it cannot be concluded that the department have come to any conclusion. It is further claimed in the

counter-affidavit that no action can be taken by the department against the foreign suppliers, that the persons to answer the charges levelled for

importing the undeclared goods or wrongly declared in the import manifest are the importers and the vessel''s agents and that the adjudicating

authority found that vessel''s agents could [.....] held liable and ordered confiscation of the goods as the importer of the goods is a fictitious person

or absconding himself probably knowing fully well the statutory actions for trying to import goods misdeclared in the manifest. It is further claimed

that the goods intended for importation into India stands as such for importation and that the respondents are at liberty to take suitable statutory

actions for violations of the statute only against the importers and that they cannot seek to take action against the suppliers, who are foreign

suppliers. It is also claimed that the goods herein are intended to be imported into India and that the impugned order is sustainable in law, that no

notice even need be sent to the suppliers, that the actions under the provisions of the Customs Act are only with regard to the importation and

against the imported goods and the persons importing items, contravening the provisions of the statute. It is further claimed that the Customs

Authorities in India cannot hold the suppliers of foreign countries responsible for the same. It is further claimed that the petitioners are the foreign

suppliers and that they cannot maintain these writ petitions under Article 226 of the Constitution of India, that their legal remedy, if any, is only

against the importers and that the writ petitions are liable to be dismissed. It is further claimed that when the goods intended to be imported into

India are misdeclared in the manifest and the goods really tried to be import licence (sic) they being under the restricted items of the import policy,

the intended importers only could be held responsible for the contravention of the procedures and provisions of the statutes and not the suppliers of

the foreign country. It is further claimed in the counter-affidavit that the petitioners have no legal right against the department and that they can look

for legal remedy against the importers only and not against the department at all.

Mr. R. Thiyagarajan, the learned Senior Counsel appearing for the petitioners contends that in this case, no ""import"" is involved and that a notice

was issued to the shippers only after the petitioners made a claim to the authorities. The Senior Counsel further contended that as early as 7-12-

1990 a letter was sent through counsel in Hongkong on behalf of the petitioners. The learned senior counsel further contends that mere landing is

not import and that on the facts of the cases on hand no question of ""import"" can arise. The learned senior counsel further states that on 29-10-

1990 the petitioners gave message even before the arrival of the vessel and that the vessels had arrived only on 4-11-1990. The learned senior

counsel further contends that on 23-11-1990 and on 24-11-1990 representations were made to the Collector of Customs to re-export the goods

and that further representations were made to Central Board of Customs and Excise including the telex message given to the master of the vessels

not to unload the vessel. The learned Senior Counsel further contends that considering the facts of the cases on hand, it is very clear that there is no

import"" or even attempt to ""import"". He further contends that when they found out the fraud played by the said importer, the petitioners requested

the shipping company and their agents not to unload the goods at Madras but to bring it back to Hongkong, that the freight and incidental charges

thereof would be paid by the petitioners. According to the learned counsel for the petitioners, the show-cause notice has been issued not to the

petitioners who are the owners of the goods and that the order of adjudications made is illegal. The learned Senior Counsel further contends that

the order of adjudication has been passed in violation of the principles of natural justice in spite of the fact that the department was made known

the fact about the ownership of goods as early as November 1990. The learned senior counsel refers the decision in Jain Shudh Vanaspati Ltd.

and Another v. Union of India and Others, 1983 (13) E.L.T. 1688, in M. Jamal Company v. Union of India and Others, 1986 (21) E.L.T. 360

and in Lucas Tvs, Madras Vs. Assistant Collector of Customs, Madras and Others, for the proposition that no question of ""import"" arises on the

facts of the cases on hand. The learned senior counsel further contends that the orders of adjudication had been passed in violation of the principles

of natural justice and in view of the rulings cited supra the petitioners are entitled to a writ of mandamus to direct the respondents to permit the re-

export of the goods.

Per contra Mr. Narasimhan, the learned Senior Central Government Standing Counsel appearing for the respondents contends that u/s 3 of the

Import and Export (Control) Act, 1947 if the prohibited goods are brought to India and if it is a restricted item under the Import Policy, it can be

confiscated under the Customs Act. The learned senior counsel contends that on examination it was found that what was tried to be imported was

fabricated and no insoles of footwear. The learned senior counsel further contends that sub-section (d) of Section 111 of the Customs Act applies

to the facts of the cases on hand, that insofar as the ""manifest"" is not amended and declared as goods (sic) it has entered territorial waters in these

cases and as such the authorities are entitled to take action under sub-section (f) of Section 111 of the Customs Act. The learned senior counsel

fairly concedes that no question of ""import"" arises in these cases but the intention to import is there. He further contends that though this is not a

case of ""import"", the ""intention to import"" can be seen insofar as the manifest shows that the goods are to be imported to Madras and he relies on

the decisions in AIR 1968 S. C. 341 and in the Aluminium Industries Ltd. v. Union of India, [1985] 4 ECC 1 for this proposition. He further

contends that the petitioners herein are not the owners of the goods to claim for re-export since the documents were sent through bankers and all

the documents were seized from bank and he relies on the decision in Sampat Raj Dugar v. Collector of Customs, New Custom House, Bombay,

1968 (15) ECR 333 wherein it has been held that imported goods can be abandoned only by one who has title to the goods. The learned senior

counsel further contends that the petitioners herein are not entitled to invoke the extraordinary jurisdiction of this court under Article 226 of the

Constitution of India and he relies on the decisions in Indo-China Steam Navigation Co. Ltd. Vs. Jasjit Singh, Additional Collector of Customs and

Others, and in Shewpujanrai Indrasanrai Ltd. Vs. The Collector of Customs and Others, for this proposition.

Per Contra, Mr. R. Thiyagarajan, the learned counsel appearing for the petitioners relies that though Part III of the Constitution is not applicable

to the case of foreigners, the petitioners herein can invoke the extraordinary jurisdiction claiming the action is bad in view of Article 300A of the

Constitution of India. The argument of the learned senior counsel is that insofar as the petitioners continued to be in possession of the property in

these cases and the petitioners who are the owners of the property in these cases want the goods to be re-exported the authorities have to apply

the decisions in earlier cases on similar issues only. He further contends that the case relied on by Mr. P. Narasimhan, the learned Senior Central

Government Standing Counsel do not apply to the facts of the cases on hand, after the 44th Amendment of the Constitution.

I have carefully considered the arguments of Mr. R. Thiyagarajan, the learned Senior Counsel appearing for the petitioners and of Mr. P.

Narasimhan, the learned Senior Central Government Standing Counsel appearing for the respondents. The first point which has to be decided in

the cases is whether the writ petitions can be maintained under Article 226 of the Constitution of India, by this court. The power of this Court

under Article 226 of the Constitution of India has to be read from the language of Article 226 of the Constitution of India itself and insofar it is

necessary for these cases, Article 226(1) reads as follows :

..... Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises

jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within these territories directions, orders or writs,

including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of

the rights conferred by Part III and for any other purpose.... "".

In Indo-China Steam Navigation Co. Ltd. Vs. Jasjit Singh, Additional Collector of Customs and Others, a vessel was confiscated under Sections

167 and 12A of the Sea Customs Act, 1878 on the ground of illegal importation of gold to India. Section 52A of the Act provided that no vessel

constructed, adapted, altered, or fitted for the purpose of concealing goods shall enter, or be within the limits of any port in INDIA, or the Indian

Customs waters. The said section was inserted by Act 10 of 1867 in Chapter VI-A of the Sea Customs Act. When considering the question

whether mens rea is an essential element of Section 52A of the Act and whether it would be ultra vires of Article 31 of the Constitution, the

Supreme Court in the above-mentioned case has held that the appellant in that case is not only a company but a foreign company and is not

entitled to claim benefit under Article 14 and Article 31, Constitution of India and observed as follows (at P. 1154) :

There is one more point which must be mentioned before we part with this appeal. Mr. Choudhary attempted to argue that if mens rea was not

regarded as an essential element of Section 52A, the said section would be ultra vires Articles 14, 19 and 31(1) and as such, unconstitutional and

invalid. We do not propose to consider the merits of this argument because the appellant is not only a company, but also a foreign company, and

as such, is not entitled to claim the benefits of Art. 19. It is only citizens of India who have been guaranteed the right of freedom enshrined in the

said article. If that is so, the plea under Article 31(1) as well as under Art. 14 cannot be sustained for the simple reason that in supporting the said

two pleas, inevitably the appellant has to fall back upon the fundamental right guaranteed by Art. 19(1)(f). The whole argument is that the appellant

is deprived of its property by operation of the relevant provisions of the Act and these provisions are invalid. All that Art. 31(1) provides is that no

person shall be deprived of his property save by authority of law. As soon as this plea is raised it is met by the obvious answer that the appellant

has been deprived of its property by authority of the provisions of the Act and that would be the end of the plea under Art. 31(1) unless the

appellant is able to take the further step of challenging the validity of the Act, and that necessarily imports Art. 19(1)(f). Similarly, when a plea is

raised under Art. 14, we face the same position. It may be that if Section 52A contravenes Art. 19(1)(f) a citizen of India may contend that his

vessel cannot be confiscated even if it has contravened Section 52A, and in that sense, there would be inequality between the citizen and the

foreigner, but that inequality is the necessary consequent of the basic fact that Art. 19, is confined to citizens of India, and so, the plea that Art. 14

is contravened also must take in Art. 19 if it has to succeed. The plain truth is that certain rights guaranteed to the citizens of India under Art. 19

are not available to foreigners and pleas which may successfully be raised by the citizens on the strength of the said rights guaranteed under Art. 19

would, therefore, not be available to foreigners. That being so, we see no substance in the argument that if Section 52A is construed against the

appellant, if would be invalid, and so, the appellant would be able to resist the confiscation of its vessel under Art. 31(1). We ought to make it

clear that we are expressing no opinion on the validity of Section 52A under Art. 19(1)(f). If the said questions were to arise for our decision in

any case, we would have to consider whether the provisions of Section 52A are not justified by Art. 19(5). That is a matter which is foreign to the

enquiry in the present appeal...

On the same day, in another decision in The British India Steam Navigation Co. Ltd. Vs. Jasjit Singh, Addl. Collector of Customs, Calcutta and

Others, the Supreme Court has held that if an applicant is not a citizen of India, he is not entitled to claim fundamental right. So it is settled law at

least that foreign companies who have contravened the provisions of the Customs Act are not entitled to claim the fundamental right guaranteed

under Art. 19(1)(f) of the Constitution. It has also been held that they are not entitled to claim the right under Art. 31(1) of the Constitution of India

as it stood then. Now the only change is that Art. 300A has been inserted by the Constitution (44th Amendment) Act, 1978. Prior to this

amendment, the right to property was guaranteed by Art. 31 of the Constitution. Virtually Clause (1) of the Article 31 has been shifted from Part

III to Article 300A. In my view, this will not alter the situation insofar as the facts of the cases on hand are concerned. It cannot be said that the

petitioners are deprived of property without authority of law. So, the result will be that the petitioners herein cannot claim any of the rights under

Part III of the Constitution of India or at least for the present case under Arts. 19(1)(g), (f) and 300A of the Constitution of India.

The next question which has to be decided is whether a writ can [be issued] ""for any other purpose"". Once the jurisdiction of this court cannot

be invoked under Article 226 of the Constitution of India for enforcement of fundamental rights by foreigner, the question that arises for

consideration is whether it could be issued on the facts and circumstances of the cases on hand as if there is any legal right to the petitioner. The

term ""any other purpose"" has been explained by the Supreme Court in an earlier case in The State of Orissa Vs. Madan Gopal Rungta, . In that

case, the Supreme Court has held as follows :

... The issuing of writs or directions by the High Court is founded only on its decision that a right of the Party under Part III of the Constitution

(Fundamental Rights) had been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Art. 226

have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the

court under this Article.

In The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, considering the nature of rights and scope of

proceedings under Article 226 of the Constitution of India, the Supreme Court has held as follows (P. 1047).

Article 226 confers a very wide power on the High Court to issue directions and writ of the nature mentioned therein for the enforcement of any

of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental rights can also

approach the High Court seeking a relief thereunder.

Article 226 in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary

jurisdiction that the relief asked for must be one to enforce a legal right. The existence of the right is the foundation of the exercise of jurisdiction of

the High Court under Art. 226. The legal right that can be enforced under Art. 226, like Art. 22 must ordinarily be the right of the petitioner himself

who complains of infraction of such right and approaches the court for relief. The right that can be enforced under Art. 226 also shall ordinarily be

the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may

have to be relaxed or modified... "".

So, all persons who invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution should have a legally enforceable right.

With regard to the issue of a writ of mandamus recently the Supreme Court in Shri Anadi Mukta Sadguru S. M. V. S. J. M. S. Trust v. V. R.

Rudani (AIR 1959 S. C. 1607) has held as follows : (p. 1611).

..... If the rights are purely of a private character no mandamus can issue, if the management of the college is purely a private body with no public

duty mandamus will not lie. These are the exceptions to mandamus. But once these are absent and when the party has no other equally convenient

remedy, mandamus cannot be denied. The law relating to mandamus has made the most spectacular advance. Article 226 confers wide powers on

the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be

issued to ''any person or authority''. It can be issued ''for the enforcement of any of the fundamental rights and for any other purpose''. The term

''authority'' used in Article 226, in the context must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose

enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental

rights as well as non-fundamental rights. The words ''any person or authority'' used in Article 226 are, therefore, not to be confined only to

statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body

concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of

positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation

exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced is not

imposed by the statute. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-

tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be

easily available ''to reach injustice wherever it is found''. Technicalities should not come in the way of granting that relief under Article 226.... "".

So, the question which arises for consideration is whether the petitioners before me are entitled to obtained writ of mandamus form this Court on

the facts of the cases on hand. I am of the view that the petitioners are not entitled to obtain a writ of mandamus for re-export from this Court. This

I say so, because I am satisfied that the petitioners'' conduct does not compel me to exercise my discretion under Article 226 of the Constitution of

India in favour of them. Further the disputed facts are to be gone into which cannot be done in a writ petition. As rightly pointed out by Mr. P.

Narasimhan, the learned counsel for the respondents, the petitioners cannot claim to be the owners of the property. The Bank has not come before

me, nor the petitioners have impleaded the Bank as a respondent here. As such, in a petition under Article 226, the petitioners herein cannot be

allowed to enforce or defend somebody else''s rights. In the instant cases, it is the right of the Bankers and not the petitioners herein are infringed, if

it is infringed at all. In my view, a foreigner like each of the petitioners herein should not be allowed to invoke the discretionary jurisdiction under

Article 226 of the Constitution of India very lightly. The question of ""import"" alone is argued and the alleged attempt to ""import"" of goods not

answered and the goods are abandoned. If the discretionary power is exercised in favour of the foreign companies like the petitioners herein, in my

view the provisions of the Customs Act will be made as a mockery by such foreign companies. As I have already stated, confiscation has been

made under a valid order of adjudication and that it cannot be stated that the petitioners have got a legal right to get the goods re-exported despite

the order of adjudication. It is true that the order of adjudication has been passed without notice to the petitioners. But, as rightly pointed out by

Mr. P. Narasimhan, the learned Senior Central Government Standing Counsel for department, only two persons are entitled to notice and they are

only the importers and the clearing agents and the vessels'' agents. Notice has been served to whom notice has to be sent, u/s 111(d) and (f) of the

Customs Act. In this case, it is very clear that the goods are prohibited goods and they are liable for confiscation u/s 111 of the Customs Act. It is

not essential for the confiscation of the goods as the person who is actually importing the goods is found out (sic). Considering the facts and

circumstances of the cases on hand, and the provisions of the Customs Act, I am of the view that the petitioners herein are not entitled to get an

order of the re-export from the hands of this Court.

As I have already stated, the learned counsel appearing for the department has fairly contended that no question of ""import"" is involved in these

cases. As such, it is not necessary for us to refer to all the decisions relied on by Mr. R. Thiyagarajan, the learned senior counsel for the petitioners,

who built up an argument that no question of ""import"" arises in these cases. The learned counsel appearing for the department refers to a judgment

of Mohan, J. (as he then was) in Indian Overseas Bank v. Collector of Customs, Madras and Others 1985 ECR 221 wherein the learned Judge

has held that under the provisions of the Customs Act, only the holder of the document is the title holder and observed as follows (at p. 231) :

Here again, the ''owner'' would mean only the holder of the documents. This is all the more so in view of the categoric stand of the fourth

respondent that it had no intention of clearing the goods, as stated in its letter dated 31st August, 1980. The appellate order dated 4th December,

1980, also says in unmistakable terms that the fourth respondent was not a party in the unauthorised importation. Therefore, though the imposition

of personal penalty contemplated u/s 112 has been set aside by the appellate order, yet there is no other go than to permit the petitioner-Bank,

who is the owner of the goods and in whose favour the bills have been endorsed to redeem the goods. When the order of the first respondent

dated 6th August, 1980, gives the importer (the fourth respondent) an option u/s 125, it could only mean the ''owner'' because as seen above,

Section 125 uses only the word ''owner''"".

As such, in these cases, the owner of the goods is only the Bank and by no stretch of imagination the petitioners can claim the goods as ''owners''.

As stated in the counter the documents have been seized from the Bank.

In view of my conclusion that the petitioners are not entitled to obtain a writ of mandamus from this Court, I decline to exercise the discretion

under Article 226 in favour of the petitioners. If the petitions which are before me are allowed, the method followed by the respondents may

become - a modus operandi for illegal imports into this country, by unscrupulous elements. Further, I am not inclined to issue a writ for the simple

reason that the order of adjudication has been passed by the Collector of Customs. u/s 129A of the Customs Act, any person aggrieved by an

order of the Collector can prefer an appeal or revision. As such, it is open to the petitioners before me even now to exhaust that alternative remedy

if they still contend that they are ""owners"" of the goods. Further, as rightly pointed out by Mr. P. Narasimhan, the learned counsel appearing for the

department, the petitioners can resort to any remedy under the ordinary Civil Jurisdiction of this land against the importers for damages. Since I

take the view that the petitioners have two remedies, one under ordinary civil law and another provided under the special enactment, I am not

inclined to exercise the discretion in favour of the petitioners under the extraordinary jurisdiction of this Court. The Supreme Court has held in

Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, that even in a case where the principle of natural justice is violated, the

remedy under the special statute has got to be exhausted. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India

Ltd. and Others, referring to the case cited supra, the Supreme Court observed as follows :

... That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. Art. 226 is not meant to

short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary

situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the

prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the

Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where

statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article

226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceeding by one device or the

other. The practice certainly needs to be strongly discouraged.

Apart from that insofar as the order of adjudication stands, it is not possible for this Court to issue a writ of mandamus as prayed for. Further,

the argument of Mr. P. Narasimhan, the learned Senior Central Government Standing Counsel appearing or the department is that in so far as the

manifest is concerned, it shows that there is an intention to ""import"". The learned counsel appearing for the department further relies upon the

decision in The Aluminium Industries Limited v. Union of India and Others (1985) ECC 1 in which a Division Bench of the Kerala High Court has

held as follows (at page 6) :

Duties of customs are levied in relation to goods brought into India from a place outside India. It is the act of import that attracts customs duty in

respect of these goods. As stated by the Supreme Court in In re Sea Customs Act (1878), Section 20(2) (AIR 1983 S. C. Pages 1760, .....''truly

speaking, the imposition of an import duty, by and large, results in a condition which must be fulfilled before the goods can be brought inside the

customs barriers, i.e. before they form part of the mass of goods within the country. Such a condition is imposed by way of the exercise of the

power of the Union to regulate the manner and terms on which goods may brought into the country from a foreign land.....''.

The payment of duties of customs is a condition precedent to the grant of permission to allow the imported goods to mix with the ''mass of goods''

in the country. Customs duties are charged on commodities on their being imported into or exported from the country. To constitute an import

within the customs laws for the purpose of levy, it is necessary that goods be brought into a proper port of entry with an intent to unload them. The

act of importation therefore implies, in the context of levy, bringing goods into an Indian Port for the purpose of discharge. There is no importation

to attract customs duty if the cargo is in transit or is intended for transhipment. The goods which are brought into the country for the purpose of

discharging them at an Indian Port cease to be imported goods after they are cleared for home consumption. The mere act of bringing goods into

the port therefore does not constitute an importation, although unexplained it may be evidence of that fact.''If goods, however, are brought into

their port of destination for the purpose of being there discharged, the act of importation is complete.'' Starke J. in Wilson v. Chambers and

Company Proprietary Ltd. 1925 38 CLR 131. As stated by Lord Davey in Canada Sugar Refining Co. v. The Queen (1898) AC 735 in the

context of the Customs Act, 1886, and the Customs Tariff Act, 1894, of Canada, ''the words ""imported into Canada"" must, in order to give any

rational sense to the clause, mean imported at the port of discharge.....''. It may be that in a general sense the course of import commences at the

time the vessel carrying goods intended to be discharged at an Indian Port enters the territorial waters for the purpose of proceeding to the port,

but the act of import for the purpose of levy does not materialise until the goods have been brought into the port of discharge and as usual the

vessel is granted entry ''inwards'' and the bill of entry has been presented. The levy of duty is made with reference to that particular point of time

and the rates applicable are those then in force.

As pointed out by the learned counsel for the department, no amendment of manifest is brought to my notice in these cases. As such, I am of the

view that the respondents are entitled to take action under the provisions of the Customs Act. This view of mine is based on the fact that the goods

imported are restricted items under the Import Policy and they are ""prohibited goods"" under the Import and the Export Order, 1947. (sic)

Further, the Judgment of Kanakaraj, J. in Vijayraj Vs. Collector of Customs, which has been affirmed by a Division Bench of this court in W.

A. No. 164 of 1991 dated 21-2-1991 is not applicable to the facts of the cases on hand. In that case, the question which has been decided was

whether there was ""import"" at all. In the present cases, it has been fairly conceded by the learned counsel that there is no ""import"". As such, I am

not declined to accept the above mentioned decision of Kanakaraj, J. in W. P. No. 18810 of 1990 dated 11-1-1991. The facts in the present

cases are clearly distinguishable. Nor I find in any of these cases, the right of a foreign company to invoke the jurisdiction of this Court under Art.

226 of the Constitution is raised, argued and decided. In view of the reason stated above, I am of the view that there are no merits in the writ

petitions. Accordingly, the writ petitions are dismissed. However, there will be no order as to costs.