COMMISSIONER OF CUSTOMS Vs. SALEM STAINLESS STEEL

JUDGEMENT

(1.) This judgment will dispose of W.A. Nos. 2086 and 2087 of 1999. A common judgment by the learned single Judge of this Court is in challenge. By the instant judgment, the learned single Judge allowed the writ petitions filed by the present respondent. Following facts will help to understand the controversy involved.

(2.) Petitioner had purchased two quantity based Advance Licences, bearing Nos. 0325984, dated 16-8-1994 and PK0545079, dated 24-1-1995, issued by the Joint Director General of Foreign Trade, Bombay and office of the Joint Director General of Foreign Trade, New Delhi respectively. These licences related to the Policy Year 1994-95. The first licence was issued in the name of Amar Enterprises, Bombay for import of non magnetic stainless steel sheets/coils of AISI 304 specification while the other licence dated 24-1-1995 was issued in favour of M/s. Rajan Overseas Private Limited, Delhi for import, of non magnetic stainless steel sheets/coils made of AISI-304 specification. These licences were issued under the Duty Exemption Entitlement Scheme and as such carried with them certain export obligations. It is an admitted position that as per the Import Export Policy 1992-97, such licences become transferable on the licensee fulfilling the export obligation and getting necessary endorsement to that effect regarding the transferability from the licensing authority. It is an admitted position that the two exporters had completed their export obligations and had got the necessary endorsement of transferability from the licensing authority on both the licences. Since the said licences were purchased by the petitioner, he became the holder of valid licences, enabling him to import the items described therein. The petitioner had also completed all the formalities to import the goods covered under these licences through the port of Madras and after that imported four cases of stainless steel coils from Singapore, weighing about 28.068 kgs. The Petitioner did not have the requirement of the whole stock for immediate use and, therefore, bonded the goods, which were imported on 7-9-1995. Subsequently, when the petitioner wanted to get the goods released for immediate use, the petitioner filed the Bill of Entry (B.E. No. 004232, dated 2-3-1996) for clearance of 12,235 kgs. of coil contained in two cases. Petitioner pleaded before the learned single Judge that the necessary documents, including the original licences transferred in favour of the petitioner, were also filed. It seems that the description in the Bill of entry, probably on the basis of the import document, mentioned the thickness of the goods to 2.00 and 3.13 mm. A query was, therefore, raised to the following effect:

(3.) It was opposed before the learned single Judge by the appellant state on the ground that the petitioner could have filed the statutory appeal and a writ petition was not maintainable. It was also reiterated that the imported materials must conform to the materials which had been exported by the original licensee and, therefore, if the petitioner had imported the stainless steel sheets/coils of a particular thickness, he must prove that the original licensee had exported the stainless steel material of the same thickness.