Union of India vs Oceanic Export Corporation

Sathiadev, J.—These appeals are preferred against the order, dated 8-7-1988 passed in W.M.P. Nos. 7594 of 1988 in W.P. No. 5263 of

1988, etc. (Batch).

The learned Judge has relied upon orders passed by this Court pending W.P. No. 6063 of 1988 to pass orders of injunction as prayed for.

While passing the order on 8-7-1988 in W.M.Ps filed in W.P. No. 6083 of 1988, the learned Judge had relied upon the decision of a Division

Bench of this Court in W.P. Nos. 1126 and 1127 of 1985 and, therefore, made the order of interim injunction absolute. In allowing these Writ

appeals by order, dated 13-5-1986, a Writ of Mandamus was issued forbearing the respondent therein from taking any proceedings or action

against the petitioner under the Customs Act, 1962. Since these writ appeals are preferred against order passed in interlocutory application and as

the Writ Petitions themselves are pending, disposal and elaborate arguments have been advanced by Counsel appearing for both parties, yet, in the

interests of the parties, only the prima facie point involved is considered for finding out whether the grant of injunction and directions issued are

justified or not.

The averments in W.P. No. 6494 of 1988 are taken into account to appreciate the points involved in these appeals. Petitioner has claimed that

it is engaged in manufacture of handloom fabrics etc. The petitioner is entitled to net duty exemption import licence to the value of 40% of the value

of the finished goods, which is known as Advance Licencing Scheme introduced in 1976-77. Under the Scheme, there is an export obligation to

export handloom goods and for which purpose, licences were issued as mentioned in paragraph 3. Under the scheme, being entitled to a duty

exemption while importing goods, it had imported the goods as mentioned in paragraph 4. The entries on these aspects of export and imports have

been entered in Duty Entitlement Certificate. After referring to various imports and exports done by it, it is stated that respondents No. 3 and 4

searched the premises of the petitioner and took away various files including licence from its premises and that a statement had been recorded.

Aggrieved with the scheme of the licence and non-clearance of goods already imported and to be imported and because of interference with the

manufacturing business of the petitioner, it had to file the writ petition. It is claimed that the Duty Exemption Entitlement Scheme contained in

Appendix 19 of Import Policy for 1985-88, the Import Control Act, 1947, and the Import Control Order, 1955 form a complete Code by

themselves and the rights and obligations arising out of advance licences are exclusively governed by only these provisions and not by the

provisions of the Customs Act. It had been issued with advance licence against firm export orders and the execution of bond was waived by the

joint Chief Controller of Exports and imports, Madras. When the policy book itself contains several schemes under which raw materials are

permitted to be imported with an export obligation attached thereto, and in case of any failure to fulfil such obligation, the concerned authority

having been conferred with power to initiate action, the Customs Authorities had no jurisdiction to seize the goods of the petitioner. Their only duty

is to question the classification and value of the goods in question, and even in instances like this wherein the import is covered by the Scheme,

once the goods have been cleared under valid Import Licence, it is not within the domain of the Customs Authorities to investigate into the

utilisation of the materials imported under the Scheme. The power u/s 3(1) of the Import Control Act, is not restricted to that authority and the said

Department alone had the jurisdiction to ascertain whether there has been a proper utilisation of imported materials or not and hence the Customs

Authorities have no jurisdiction to find out whether under the Scheme, the goods have been properly utilised or not. Section 111(a) of the Customs

Act is not attracted when the said Scheme is implemented. Therefore, when the Customs Authorities have without authority, seized the

goods/books on 1-4-1958, and having prevented the imported goods to be cleared, the petitioner had to file a Writ of Prohibition to restrain

respondents 1 to 4 therein from conducting or holding any enquiry in respect of the goods imported pursuant to the advance licence issued and

from interfering with petitioner''s rights to perform their export obligations under the Duty Exemption Scheme and consequently direct them to issue

detention certificates for goods lying in the harbour. Pending disposal of this Writ Petition, they had filed W.M.P. No. 9399 of 1988 for grant of

interim injunction restraining the said respondents from proceeding with the enquiry and investigation and W.M.P. No. 9400 of 1988 was filed for

issue of directions to them to return the documents, licences including DEEC books seized from them and also for permitting them to clear the

imported goods. W.M.P. No. 9401 of 1983 was filed to direct them to release the imported dyes and pigments which are kept in the bonded

warehouse. W.M.P. No. 9403 of 1988 when filed to direct them to issue detention certification for the said goods. All these petitions were taken

up together and on the learned Judge ordered the petitioners, these appeals have been preferred.

Learned Advocate General appearing for the appellants submits that whatever actions that may be taken by the Controller of Imports and Ex-

ports relating to the licence issued by him, yet when the goods in respect of which actions have been taken, have not suffered payment of Customs

Duty, the Authorities of the Customs Department, have the necessary jurisdiction to investigate and find out whether the imports made under the

Scheme had been utilised, according to the scheme or not. If it be found that any portion of the goods imported under the Scheme had been

misutilised or misapplied, then, under the Scheme, when, for these goods Customs Duty requires to be paid, the jurisdiction of the Authorities of

the Customs Deptt. is in no manner taken away, because the Controller of Imports and Exports may also have certain powers to monitor the

transactions of the importers Then the power of seizure is available under the Customs Act, investigation made in the direction of Collection of

Customs Duty should not be prevented by grant of injunction in the manner prayed for.

Mr. Thyagarajan, learned Counsel appearing for certain respondents in this batch of petitions in his lengthy submissions had referred to the

nature of powers that could be exercised by the Controller of Imports and Exports and as to how far when he has the direct control over the

goods imported under the Scheme, the Customs Authorities cannot alongside exercise powers under the Customs Act.

It is indispute that respondents in these appeals have been issued licences by Controller of Imports and Exports and that under the Imports and

Exports (Control) Act, 1947, the licences are covered by the Import Trade Control Policy and is subject to the condition contained in Clause 5(2)

and (3) of the Import (Control) Order, 1955, as amended from time to time. The imports made are covered by advance licences issued, which in

clause 4 states that in the event of the importer failing to fulfil the export obligation within the prescribed time limit, he will be liable to pay customs

duty on the proportionate quantity of export materials imported corresponding to the products not exported. Clause 5 states that he has to pay

customs duty on any excess items that have been left over after utilisation of the resultant product and completion of the corresponding export.

Licensees are also bound to pay 18% interest per annum on the total amount of customs duty from the date on which amount due from them is

actually paid. Hence even the obligations of the licences are under the control of the Controller of Imports and Exports and the liability to pay

customs duty would be dependent upon the nature of performance by the importer relating to the export obligations in respect of goods which

have been imported under the Scheme till the contingency arises for payment of duty as provided in the advance licences, the Customs Authorities

will have no jurisdiction to demand payment of customs duty. When import had been made based on a licence issued by a co-ordinating authority

constituted under another enactment, unless and until he takes a decision as to whether customs duty had become payable or not; the Customs

Authorities cannot entrench upon the powers of the Controller. The duty exemption entitlement certificate states that, after completion of exports,

these certificates shall be produced with endorsement for discharge of the bond/legal agreement, before the licensing authority concerned, who,

after discharging the bond/legal agreement, shall retain the certificate with him. While importing, the importer under clause 2(1) in Appendix 19 to

import and Export Policy, has to execute a bond with a bank guarantee to the licensing authority. Clause 29(1) deals with follow up panel action

with the licence fails to abide by the Scheme. Clause 29(4) states that the customs authorities shall also take suitable action for the recovery of

customs duty on the duties and interest thereon u/s 112 of the Customs Act of 1962, when the defaulted licence fails to act, according to sub-para

As for right to enter and inspect the premises and accounts books and to effect search and seizure in the event of non-compliance with the terms

and conditions of the licence of the scheme, sections 4(b), (c), (d), (e) and (f) of Import and Exports (Control) Act provides for them. Confiscation

is contemplated u/s 4(g) and (h) and penalty could be imposed u/s 4(i). The Act provides for powers to be exercised by authority functioning

under the Act and, therefore, in respect of goods imported under licence issued under the Act, if there is any misutilisation or misapplication of the

goods covered by the licence or the export obligation is not carried out properly, then in respect of those transactions, and until it is decided by the

concerned authorities functioning under the said Act, that customs duty had become payable, the Authorities under the Customs Department would

have no jurisdiction to seize these goods of change exercise any of the powers under the said Act. Once a decision is taken by the constituted

Authority under the Import and Exports Control Act, in respect of recovery of customs duty, then the Authorities of the Customs Deptt. will have

the power to exercise all the powers under the Customs Act.

Learned Advocate General had relied upon Section 110(o) of the Customs Act, which reads as follows :

The following goods brought from a place outside India shall be liable to confiscation :

(O) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any prohibition in

respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the

non-observance of the condition was sanctioned by the proper officer"".

Thus while confiscation would arise only after the Controller takes a decision that the goods which had already been permitted to be imported

under licence because of the subsequent conduct of the licence and invited collection of customs duty which may arise under various

circumstances. If the imported materials are not fully utilised for no fault of the licence, the balance of it, imported under the Scheme, would suffer

payment of customs duty with interest thereon as found in paragraph 29(3) of Duty Exemption Scheme.

Circumstances would certainly arise in cases therein, in inspection in a factory and Authorities of the Customs Department may come across

certain goods which are covered by the said Scheme and found irregularities of evasion of customs duty and in such of these instances what they

will have to do is to forward the particulars which have come to their notice to the Controller of Imports and Exports who will have to take the

follow-up actions and determine whether any customs duty would become payable, as stipulated in the Scheme in respect of goods which are not

covered by the Scheme, certainly, it is the customs duty personnel who would have the jurisdiction to seize and take-up follow-up actions under

the Customs Act.

Such a view had been taken in Shivshankar Tilakraj Vs. Union of India and others, by holding that Customs Authorities are not empowered to

sit in judgment over the powers exercised by the Controller of Imports and Exports. It was held that the Customs Authorities are not empowered

to find out whether an import licence had been given by a competent authority correctly and whether the conditions precedent for grant of import

licence, were satisfied or not. Further, the learned Judge having relied upon a Division Bench decision of this Court in The Union of India and

Others v. ......... Incorporation (W.A. Nos. 1126 and 1127 of 1985, dated 18-2-1986) and as the respondents have made out a prima facie case

about lack of jurisdiction of the Customs Authorities to deal with the goods covered by the said Scheme, these writ appeals deserves to be

dismissed.

An attempt is made by the appellant to seek for permission to take up the adjudication proceedings, but in a similar matter this Division Bench

of this Court in C.W. Nos. 7926 & 7527 (sic) of 1986, W.A. Nos. 585-586 of 1986, dated 17-8-1986 and allowed the adjudication

proceedings to go on the Supreme Court by order, dated 4-9-1986 in Special Leave to Appeal (Civil) Nos. 198 and 199 of 1986, has directed

that the said adjudication proceedings may not go on. Therefore, at this stage, appellant Nos. 2 to 4 have forwarded whatever materials/particular

they have collected to the Controller of Imports and Exports, who could take up such proceedings/circumstances.

Mr. M. T. Vanamamalai and Mr. Dolia have supported the contentions put forward by Mr. Thiagarajan and they claim that as on date when

no violation had been committed relating to payment of customs duty, the appellant had no jurisdiction whatsoever to deal with the goods covered

by a valid licence.

The points involved in all these appeals are identical and for reasons stated above, all the appeals are dismissed. No costs.