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Schanlal Kanshiram Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberMisc. Petition No. 324 of 1976
Judge
Reported in1983(12)ELT742(Bom)
ActsCustoms Act, 1962 - Sections 124
AppellantSchanlal Kanshiram
RespondentUnion of India and ors.
Appellant AdvocateSubramaniam and ;S.P. Upadhyay, Advs.
Respondent AdvocateR.L. Dalal, ;R.L. Mukherjee and ;F.H.J. Talyarkhan, Advs.
Excerpt:
- - that being so, the impugned order dated 22nd july 1975 was passed clearly in breach of the elementary principles of natural justice.1. the petitioner is an established importer and, at all material times, held an import licence which was valid uptil 30th april 1975 for the import of dates from basra to bombay. the petitioner had arranged to import dates under his import licence by a country craft named 'vishwa mohini'. according to the petitioner, he had taken all precautions that the said vessel should reach basra in time where it would discharge the consignment to be discharged there, and load the consignment of dates of the petitioner from basra within the period of the validity of the licence, viz. 30th april 1975. according to the petitioner, the said vessel left the shores of india and reached basra on or about 22nd/23rd april 1975. further according to the petitioner, the consignment of dates was loaded of the.....
Judgment:

1. The Petitioner is an established importer and, at all material times, held an import licence which was valid uptil 30th April 1975 for the import of dates from Basra to Bombay. The Petitioner had arranged to import dates under his import licence by a country craft named 'Vishwa Mohini'. According to the Petitioner, he had taken all precautions that the said vessel should reach Basra in time where it would discharge the consignment to be discharged there, and load the consignment of dates of the Petitioner from Basra within the period of the validity of the licence, viz. 30th April 1975. According to the Petitioner, the said vessel left the shores of India and reached Basra on or about 22nd/23rd April 1975. Further according to the Petitioner, the consignment of dates was loaded of the vessel'Vishwa Mohini' at Basra on at about 29th April 1975, that is within the period of the validity of the licence, vide two telegrams dated 30th April 1975 received by him, one from the Tindal of the vessel and the other from the shippers. The vessel arrived the Port of Bombay and Customs authorities. The latter, however, refused clearance. On 28th June 1975, a notice was issued by the Appraiser, Special Investigation and Intelligence BR, under the provisions of Section 124 of the Customs Act, 1962, calling upon the petitioner to show cause why his consignment of dates should not be confiscated and why penalty should not be levied upon him for having made a wrong statement in the Bill of Landing/Entry that the consignment of dates was shipped from Basara prior to 30th April 1975, viz. within the period of the validity of the petitioner's import licence, whereas in fact the same was shipped thereafter, as was borne out by a statement made by the Tindal of the vessel before the Customs authorities that date were loaded after 30th April 1975. By his Attorney's latter dated 10th July 1975, the petitioner showed cause. However on 22nd July 1975, the Deputy Collector of Customs (viz, the 2nd Respondent) passed his impugned order confiscating the dates with liberty to the petitioner to redeem the goods for home consumption on payment of redemption fine of Rs. 5,000/-. The Petitioner cleared the consignment on a payment of fine and duty. Being aggrieved by the 2nd Respondent's order dated 22nd July, 1975, the petitioner preferred the requisite appeal to the Collector of Customs, viz. the 3rd Respondent, who by his impugned order dated 3rd January 1976, rejected the petitioner's appeal on the ground that it was time-barred. Being aggrieved by the orders dated 22nd July 1975 and 3rd January 1976 passed by Respondents 2 and 3 respectively, the petitioner has filed the present petition.

2. The controversy between the parties is whether in terms of the import licence, the consignment of dates was loaded at Basra on or before 30th April 1975 as urged by the petitioner or whether the consignments was loaded after 30th April 1975, in violation of the import licence, as urged by the concerned authority. On the latter aspect, there is, in the impugned order dated 22nd of July 1975, a reference to a telegram dated 29th April 1975 from the Tindal of the vessel 'Vishwa Mohini' to the petitioner's agent stating that the vessel 'Vishwa Mohini' had not been loaded before 30th April 1975 but was loaded thereafter. It is on the basis of this telegram that reliance was placed by the authority in holding against the petitioner.

3. However, it is not in dispute that before passing the impugned order dated 22nd July 1975, this telegram had not been shown or even been brought to the notice of the petitioner and that no opportunity had been given to the petitioner to make his submissions in respect thereof. That being so, the impugned order dated 22nd July 1975 was passed clearly in breach of the elementary principles of natural justice. With his habitual fairness, this was not seriously disputed by Mr. Dalal, the learned Counsel appearing on behalf of the respondents.

4. In view of the fact that the principles of natural justice wee not observed in this case, the impugned orders dated 22nd July 1975 and 3rd January 1976 cannot be sustained and must be set aside, which I hereby do.

5. In the result, the petition is allowed in terms of prayer (b) with no order as to costs. The concerned authority shall be at liberty to hold a fresh enquiry in the light of the observations made earlier. It shall, however, not be necessary to issue a fresh show cause notice upon the petitioner. The authority shall give not less than four weeks' written intimation to the petitioner of the date of hearing of the fresh enquiry and shall, with such intimation, furnish to the petitioner, a copy of the Tindal's telegram with liberty to the petitioner to take inspection of the original telegram lying with the authority. Mr. Dalal States that the authority will also furnish to the petitioner a copy of the Tindal's statement. The amount of fine and duty paid by the petitioner shall be retained by the authority until the disposal of the fresh enquiry.

6. Rule made absolute accordingly.


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