NAZIAZENO FERNANDES Vs. UNION OF INDIA
LAWS(BOM)-1972-8-17
HIGH COURT OF BOMBAY
Decided on August 28,1972

Naziazeno Fernandes Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) By this Special Civil Application the petitioner seeks to obtain a writ of certiorari to quash the order of the Government rejecting the application of the petitioner for exemption from payment of customs duty and for the refund of customs duty already paid and also for a writ of mandamus directing the respondents to grant to the petitioner exemption from customs duty and to refund the customs duty already paid.
(2.) The case of the petitioner is as follows: On 09-12-1960 the petitioner made an application to the then Overseas Minister of Portuguese Government for the grant of exemption of customs duty on the machinery and equipment to be imported for the purpose of building a ceramic plant at Curti, Ponda, Goa. The application was made under Article 3 of the Decree No. 41,024, dated 28-02-1957, which was the Portuguese Law then in force in this territory, corresponding to Section 25 (2) of the Customs Act: 1962. As his said application for exemption was being considered he received his first consignment of the machinery and equipment in January, 1961. That consignment was cleared under two bonds. In 1962 he received the second consignment which he cleared under a bond dated 13-06-1962. On 30-01-1963 the Sea Customs Act, 1878, came into force in this territory. On 07-01-1963 the petitioner made an application to the Secretary to the Government of Goa. Daman and Diu, requesting for grant of exemption of customs duty. On 01-02-1963 the Customs Act. 1962, came into force and on 01-10-1963 the Indian Tariff Act, 1934, came into force. On 03-04-1963 and 19-04-1963 the petitioner made representations to the Administrator. Government of Goa. Daman and Diu and addressed further letters to the Development Commissioner, of the said Government on 12-06-1963 and to the Lt. Governor of Goa. Daman and Diu on 28-09-1963. No reply was received to the said letters nor was the said application rejected. On 14-10-1965 the third consignment of machinery and equipment was received and cleared by the Customs Authority under the Bill of Entry No. 96. This time the Customs Authority insisted on levying and actually levied the customs duty. The petitioner paid the duty under protest On 30-12-1965 the Assistant Collector of Customs and Central Excise issued three notices calling upon the petitioner to Pay duty in respect of the first two consignments which were cleared under bonds. The petitioner took the matter up with the Assistant Collector of Customs, the Industries and Labour Department. Government of Goa, Daman and Diu, and finally filed a petition to the Secretary. Ministry of Finance. Government of India, on 26-02-1966. The Industries and Labour Department. Government of Goa, Daman and Diu, recommended that the application of the petitioner be granted. The Under Secretary. Government of India, by his letter dated 28-06-1968 granted the application of the petitioner for exemption from payment of customs duty on the first two consignments. The said letter reads as follows :- "With reference to your letter dated the 26th February. 1966, on the above subject, I am directed to say that in exercise of the powers conferred by Section 25 (2) of the Customs Act, 1962 the Central Government being satisfied that it is necessary in the public interest to do so, hereby exempt the six consignments of manufacturing equipment valued at Rs. 8,98,783.33 imported by you during the period January 1961 to 13th June, 1962 for the industrial establishment in Goa in terms of Article 3 of Decree 41024 dated 28-02-1957 from payment of the whole of the duty of customs leviable, thereon under the first schedule to the Indian Tariff Act, 1934 (32 of 1934) and the additional duty leviable thereon under Section 2-A of the second mentioned Act on importation into Goa." Pursuant to the said letter the three notices on demand were withdrawn and the bonds executed by the petitioner were cancelled. On 12-04-1969 the petitioner made an application to the Secretary. Ministry of Finance. Government of India, for an exemption order in terms in Article 3 of the Decree No. 41,024 and the Section 25 (2) of the Customs Act. 1962 in relation to the 3rd consignment. The petitioners attached to the said application the certificate issued after the site inspection by the Director of Industries and Mines, Government of Goa, to the effect that the machinery described in the invoice had been imported by the petitioner and that the said machinery constituted a part of the said ceramic plant. The application was rejected by the Government of India on the ground that the consignment was imported after the coming into force of the Customs Act, 1962 . It is this rejection that is the subject-matter of this petition,
(3.) It is stated by the petitioner that the exemption granted by the respondents to the petitioner on 28-06-1968 being an exemption granted after the repeal of the Decree No. 41.024 and after the coming into force of the Customs Act, is an exemption granted under Section 25 (2) of the Customs Act, 1962 ; that the third consignment received by the petitioner was similar to the first two previous consignments received by him; that all the three consignments were meant for the same purpose, namely, the construction of a ceramic plant at Curti; that the exemption of Customs and Excise duty granted to the petitioner on 28-06-1968 regarding the import of the first two consignments was granted because the respondents were satisfied that it was necessary in the public interest so to do; that the third consignment having been imported for purposes and reasons similar to those for which the first and second consignments were imported, the grounds upon which the respondents granted exemption on 28-06-1968 of the customs and excise duty in respect of the first two consignments also existed in relation to the import of the third consignment; that the respondents ought, therefore, to have granted exemption of customs and excise duty also in respect of the third consignment; that the reasons given by the respondents for refusing such grant, namely, that the third consignment was imported after the coming into force of the Customs Act, 1962 were bad and disclosed a total non-application of mind on the part of the respondents to the facts of the case and indicate that the respondents have acted without jurisdiction.;


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