Purvi Electronics Pvt. Ltd. vs Union of India

Sivasubramanian, J.

This writ petition has been filed for issue of a writ of certiorari to quash the proceedings of the Additional Collector of Customs, AIR Cargo

Complex, Meenambakkam, Madras, dated 30.12.1988.

The material facts leading to the filing of the present writ petition are as follows; One Nk Yahya Gani & Co. a registered export house had

secured 11 REP licences and the same were got endorsed by it for the import of several items including Populated Printed circuit board after

making necessary application to the DGTD, New Delhi, for endorsement in terms of paragraph 51(iii) of the Import and Export Policy, 1985-88.

The said licences being transferable, the petitioner got the above REP licences transferred in its favour by NK Yahya Gani and Co. Since one of

the items endorsed and permitted for import under the said REP licence is populated printed circuit board and since the petitioner was in need of

the said material as accessories required by it for the manufacture of VCR manufactured-by it under the brand name ''CONTACT'', it got the REP

licences transferred particularly in the light of the public notice dated 7.9.1988 which made REP licences endorsed for import of non-OGL capital

goods as freely transferable without actual user condition. In pursuance of the same, the petitioner imported 300 pieces of populated printed circuit

board which shall hereinafter be referred to as P. P. C. B. The gods arrived by air in November 1988 and necessary bill of entry was filed by the

petitioner''s clearing agent on 21.11.1988. The Customs Authorities had not assessed the bill of entry and permitted clearance of the imported

goods. Therefore, the petitioner filed writ petition in W. P. 15764 of 1988 for issue of a writ of mandamus directing the Customs authorities to

assess the bill of entry dated 21.11.1988. This court passed an order on 23.12.1988 directing the respondents to assess the bill of entry within a

week and stating that the question of release of the goods would depend upon the assessment to be made. Thereafter, the petitioner was served

with a show cause notice dated 29.12.1988 stating that the goods have been imported contrary to the provisions imposed by Clause 3 of the

Imports (Control) Order, 1955 read with Section 3 of the Imports and Exports (Control) Act, 1947. A personal hearing was given on 30.12.1988

by the Additional Collector of Customs and the petitioner was given an opportunity to put forth its contention. Rejecting the contention of the

petitioner, the Additional Collector found that the goods imported are populated printed circuit boards containing several printed circuit

interconnected and these are mere sub-assemblies and as such, the goods under importation are interconnected sub-assemblies and these are not

covered by the import licence produced. Ultimately, he passed an order directing confiscation of the goods valued at Rs. 1,96,920 CIF u/s 111(d)

of the Customs Act, 1962 read with Section 111(m) of the Customs Act. However, and option was given to the importers to redeem the same for

home consumption on payment of redemption fine of Rs. 2,00,000 and also on payment of duty at the appropriate rate. A penalty of Rs. 20,000

was also imposed u/s 112 of the Act. It is against this order, the present writ petition has been filed.

Shri R. Thiagarajan, learned counsel appearing for the petitioner, submitted that the licences pursuant to which import has been effected were

endorsed by the the Joint Chief Controller of Exports and Imports on the recommendation of the DGTD, New Delhi, that the licences specifically

described the item permitted to be imported as Populated Printed Circuit Board, that the gods imported are in accordance with the terms of the

licence answering the descriptions given therein and that the populated printed circuit board cannot be without any interconnection or sub-

assembly. He further submitted that on earlier occasions also, the same item has been permitted to be cleared under identical licence. He pointed

out that during the course of the import of the earlier items, the description has been made as populated printed circuit board (sub-assembly) and

therefore, there was no reason for the Revenue to come to the conclusion that the presence of the interconnected or sub-assembly parts will render

the goods imported as something different from populated printed circuit board and that there was no violation of any of the provisions of law.

Learned counsel for the petitioner contended that the impugned orders have been passed without any basis whatsoever and that the Additional

Collector of Customs was not competent to say that the goods imported are not PPCB. No expert opinion was obtained in this regard and the

impugned order does not indicate as to why he has come to the said conclusion. The learned counsel relied on certain printed pamphlets relating to

the VCRs and PPCB and submitted that the so called sub-assembly is part of PPCB and that though all the circuits found in the PPCB together

form the circuit board, there is nothing to indicate that any new material has been introduced in the board, import of which is not permissible. On

the question of alternative remedy, the appeal to the effective one, since it is not competent to interpret the classification of goods and that the

petitioner will not be able to get any interim order for the release of goods.

Sri P. Narasimhan, learned counsel for the respondents opposed the writ petition and submitted that it is not maintainable without exhausting the

alternative remedy available under law. According to him, there are no apparent errors in the order passed by the third respondent and the

controversy raised by the petitioner is only a question of fact which can be determined by the Appellate Tribunal. When he was asked to explain as

to on what basis, the third respondent came to the conclusion that the PPCB imported by the petitioners contains certain additional materials, he

would say, he has not obtained full instructions from the respondents.

I have carefully considered the submissions made by the learned counsel appearing for the parties. I find that submissions made by the learned

counsel for the petitioner to the effect that the Appellate Tribunal is not competent to decide the issue raised in this writ petition, are not sustainable.

Learned counsel submitted that since the matter involves interpretation of certain entry relating to populated printed circuit boards, it is this Court

which alone can go into that question. Secondly, it was submitted that the Appellate Tribunal has no power to pass any interim order. I am unable

to accept the said contention since there is no insurmountable difficulty for the Appellate tribunal to interpret the said entry and render a finding as

to the nature and content of populated printed circuit board. Absolutely no legal point is involved in this matter and it is purely a question of factual

investigation to find out the nature of PPCB. This can be done by the Appellate Tribunal after ascertaining the various factors like records

maintained by the Department showing the contents of PPCB, the literature published by the manufacturers in this regard, the earlier imports of

similar materials, technical opinion on this aspect, etc. All these things are nothing but factual aspects. Therefore, I do not find any difficulty for the

petitioner approaching the Appellate Tribunal for appropriate remedy. This Court is not expected to enter into factual investigation in a writ petition

filed under Art. 226 of the Constitution of India. I find that there is a tendency in recent times for people to by-pass such special Tribunals for

reasons best known to them. If in every case of disputed assessment, petitions are entertained by this court, it would lead to a situation where the

very purpose of constitution of such special Tribunals would be defeated. It is no doubt true people are faced with certain practical difficulty in

approaching the Tribunal, but it is a matter which has to be rectified by the authorities in power. It is hoped such Tribunals will entertain appeals

and afford speedy remedy so that the existence of such Tribunals can be justified. In view of this conclusion, it is unnecessary for me to decide the

contentions raised by the petitioner in this writ petition and it is open to the petitioner to raise the same before the Appellate Tribunal.

Insofar as the release of the goods is concerned, I find, there is some justification in the pea raised on behalf of the petitioner. It is a case where

imported goods have not been confiscated by the Department and on the other hand, an option is given to the petitioner to redeem the goods for

home consumption of payment of redemption fine of Rs. 2,00,000 and also on payment of duty at the appropriate rate. Therefore, the only

question to be considered at the stage is whether the interest of the Revenue will be affected by directing the release of the goods before disposal

of the appeal to be filed by the petitioners. Considering the facts and circumstances of the present case, I find that ends of justice would be met by

directing the release of the goods on certain conditions.

In the result, the petitioner is directed to file an appeal before the Special Bench of the Customs, Excises and Gold Control Appellate Tribunal,

as provided under the Act. The petitioner is permitted to clear the goods covered by bill of entry No. 037627 dated 21.11.1988 and AWA/Bill of

Lading No. 618-7413-4728-H-3049 dated 15.11.1988, on condition the petitioner pays a sum of Rs. 1,00,000, in cash and furnishing a bank

guarantee from a nationalised bank for the remaining amount of Rs. 1,00,000 towards redemption fine apart from the customs duty and on further

condition that the petitioner pays the penalty of Rs. 20,000, in cash without prejudice to its contentions in this regard. Insofar as the detention

certificate is concerned, the authorities concerned will pass orders expeditiously on an application being filed by the petitioner in this regard. The

Bank guarantee to be furnished by the petitioner will be kept alive periodically.

The writ petition is ordered accordingly. No order as to costs.