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New Horizons Private Ltd. and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 1126(W) of 1985
Judge
Reported inAIR1986Cal303
ActsInsecticides Act, 1968 - Sections 9 and 38
AppellantNew Horizons Private Ltd. and ors.
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateS. Saraf and ;A.K. Roy, Advs.
Respondent AdvocateSanjoy Bhattacharjyya and ;Nilava Mitra, Advs.
DispositionApplication allowed
Cases ReferredMercantile Express Co. Ltd. v. Asst. Collector of Customs
Excerpt:
- .....liable and to be confiscated under section 111d of the customs act.4. mr. saraf appearing for the writ petitioners however contended that section 9 has no manner of application in the facts and circumstances of the instant case. mr. sarafdrew the attention of this court to section 38 of the insecticides act, 1968 which expressly states that nothing in this act shall apply to the use of any insecticide by any person for his own household purposes or for kitchen garden or in respect of any land under his cultivation. the factum of the requirement for the petitioners' cultivation have not been denied by the respondents. therefore, since there is no dispute in regard to the factual aspect of the matter, in my view section 9 does not have any manner of application in the facts and.....
Judgment:
ORDER

Umesh Chandra Banerjee, J.

1. This application is for setting aside of the show cause notice being annexure 'F' to the writ petition issued by the Assistant Collector of Customs appraising Group I Customs House, Calcutta, dated 6-11-1984.

2. The petitioner No. 1 holds a valid licence bearing No. P/W/290082/XX/80/C/81 dated 5th September 1981 for importation of paraguat Diechloride worth Rs. 1,25,282.17 p. The petitioner No. 2 carries on business in cultivation, growing, manufacturing and sale of tea and for the said purpose the company has its tea gardens situated in the District of Sibsagar, Assam. The definite case of the petitioner made out in the petition is that for the purpose of growing tea in the said tea gardens, insecticides/weedicides are required as a necessary ingredient to protect the tea plant and to kill harmful weeds and fungus that grow in the gardens around the tea plants. The petitioners' further case is one such insecticide/weedicide is known as 'Paraguat' Diechloride and the said 'Paraguat Diechloride' is required by the petitioner No. 2 for the purpose of business. The Customs Authority has used an affidavit but there is no denial of the factum of the user or requirement of the petitioner No. 2.

3. At the hearing the only point which was canvassed is that under Section 9 of the Insecticides Act, registration prior to importation is mandatory and since the petitioners did not register themselves under Section 9 no importation can be allowed and as a matter of fact Mr. Bhattacharyya submitted that the goods liable and to be confiscated under Section 111D of the Customs Act.

4. Mr. Saraf appearing for the writ petitioners however contended that Section 9 has no manner of application in the facts and circumstances of the instant case. Mr. Sarafdrew the attention of this Court to Section 38 of the Insecticides Act, 1968 which expressly states that nothing in this Act shall apply to the use of any insecticide by any person for his own household purposes or for kitchen garden or in respect of any land under his cultivation. The factum of the requirement for the petitioners' cultivation have not been denied by the respondents. Therefore, since there is no dispute in regard to the factual aspect of the matter, in my view Section 9 does not have any manner of application in the facts and circumstances of the case. The other contention of Mr. Saraf is that, as a matter of fact the Customs authorities have allowed one Barsali Tea Company (P) Ltd. to import the identical goods and a copy of bill of entry for such importation is already on the records. Mr. Saraf stated that the Custom authorities ought not to be allowed to change its point of view and classification or categorization of goods at any time and every time and there ought to be some amount of conformity in the matter of classification. Mr. Bhattacharyya however contended that there is nothing as to whether the importer in the other matter, the bill of entry of which is on record to this Court was a registered person within the meaning of Insecticides Act, or not. In that view of the matter no reliance ought to be placed on the aforesaid bill of entry.

5. In the case Mercantile Express Co. Ltd. v. Asst. Collector of Customs, reported in : 1978(2)ELT552(Cal) this Court held that the Custom authorities were bound by their own decision in administering the taxing statutes. This Court observed :

'The Custom now say that they are not bound by their previous decisions. Whether the doctrine or precedents applies in its full rigour to Administrative Agencies and Officers, and whether a reasonable latitude should be given to them or administrative tribunals to correct or modify their previous decisions may still remain debatable controversy in the world of law; nevertheless I am clearly of the opinion that neither the Appraiser nor the Collector of Customs can change his mind from time to time in respect of the same articles by assessing them in the case of one importer under one section and then assessing them for another importer under different section. To allow the Customs to do so will lead to utter confusion on the very basis and principles of taxation andgrave uncertainty in business and foreign trade of India.'

It is significant to be noted in this con text that the goods in question arrived at the Calcutta Port, assessments were made, duties were levied, payments were made but at the time of actual clearance of the goods, restrictions were imposed by reason wherefor the petitioners were not, successful to clear the goods out of the Customs barrier. From the records it appears that the petitioner No. 2 was the importer in the other matter referred above. Though, however, the goods in the other matter landed at the Port of Bombay, but in my view, there ought to be a comity of decisions in the matter of assessment and levy and clearance of goods. One Port within the country would release goods of a particular specification whereas the other Port would detain the same which is neither fair nor reasonable.

'6. However, in the view I have taken in regard to the applicability of Insecticides Act I need not deal with the submissions in detail.

7. In that view of the matter the impugned notice is wholly illegal and the High Court is competent to intervene by way of writ under Article 226 of the Constitution of India to quash such illegal notice.

8. In the premises the application succeeds. Let a Writ of Mandamus be issued cancelling the show cause notice being annexure 'F to the Writ Petition as well as all proceedings taken thereunder. The Respondent Authority is directed to release the consignment of Paraguat Weedicide imported under Import Licence No. W-2900828 being annexure 'A' to the petition forthwith.

9. The writ petition is disposed of. There will be no order as to costs.

10. Stay of operation of the order, as prayed for is allowed for a period of ten days from date.


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